Sudhindra Kumar Deb Vs. Gopika Ranjan Datta - Court Judgment

Excerpt:
- g. mehrotra, j.1. this is an application under section 439, read with section 561a, of the code of criminal procedure, against the order of the sessions judge, cachur, affirming the order of the senior extra assistant commissioner and magistrate 1st class, silchar. the petitioner was the head clerk of the martycherra tea estate. an industrial dispute was referred to the industrial tribunal which was disposed of by an award dated 7-11-1955. the tribunal found that the order of dismissal of the petitioner was unjustified and not bona fide.it is not necessary to give the facts in detail. it , is sufficient to point out that a complaint has been filed by the secretary of the eastern tea estates (private) ltd. before the magistrate for an offence under section 193 of the indian penal code.....

Judgment:

G. Mehrotra, J.

1. This is an application Under Section 439, read with Section 561A, of the Code of Criminal Procedure, against the order of the Sessions Judge, Cachur, affirming the order of the Senior Extra Assistant Commissioner and Magistrate 1st Class, Silchar. The petitioner was the Head Clerk of the Martycherra Tea Estate. An Industrial dispute was referred to the Industrial Tribunal which was disposed of by an award dated 7-11-1955. The Tribunal found that the order of dismissal of the petitioner was unjustified and not bona fide.

It is not necessary to give the facts in detail. It , is sufficient to point out that a complaint has been filed by the Secretary of the Eastern Tea Estates (Private) Ltd. before the Magistrate for an offence Under Section 193 of the Indian Penal Code against the petitioner, in respect of certain false evidence given by him before the Industrial Tribunal. A preliminary point was raised by the petitioner before the Magistrate that the proceedings were not maintainable inasmuch as no complaint was filed by the Tribunal as required Under Section 195(l)(b) read with Section 476 of the Code of Criminal Procedure.

This contention was repelled by the Magistrate and the order of the Magistrate was confirmed by the Sessions Judge. In the present petition, it is contended that no cognizance of the case could be taken -by the Magistrate on a complaint being filed by the Secretary, Tea Estate, unless there was a proper complaint by the Industrial Tribunal. Section 190 of the Code of Criminal Procedure provides that the Magistrate can take cognizance of a case either upon the receipt of a complaint of facts which constitute an offence or on a report in writing made by the police or on his own information.

Section 195(1 )(b) provides that no Court shall take cognizance of any offence punishable under any of the following Sections, including Section 193 and 228 when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court, or of some other Court to which such Court Is subordinate. The restriction on the powers of a Magistrate to take cognizance of a case without the complaint by a Court applies only when the offence Under Section 193 'T has been committed in or in relation to any proceeding in any Court.

2. The main question, therefore, to be considered in the present petition is whether the Industrial Tribunal can be regarded as a Court within the meaning of Section 195(l)(b) of the Code of Criminal Procedure. Section 195 has to be read along with Section 476 of the Code of Criminal Procedure, which provides the procedure as to how the Court, before whom the offence is said to have been committed, is to be moved to file a complaint.

In our opinion, the matter seems to be concluded by the decision of the Supreme Court in the case of Bharat Bank Ltd., Delhi, v. Employees of the Bharat Bank, Ltd., Delhi : (1950)NULLLLJ921SC . In that case, the question, which came up for decision before their Lordships of the Supreme Court, was whether the powers of the Supreme Court to entertain an appeal under Article 136 of the Constitution could be exercised in respect of an award made by the Industrial Tribunal. The majority view was that the decision by a Tribunal was a judicial determination, and, consequently, Article 136 of the Constitution was attracted.

The argument, which was advanced on behalf of the Central Government in that case, was that the determination by the Industrial Tribunal was only an administrative determination and thus Article 136 of the Constitution was not attracted. Two of the Judges held that it was only an administrative determination, and, consequently, Article 136 was not attracted. The majority decision was to the effect that it was not a pure administrative determination but the Tribunal had to act judicially in making its award, and, as such, Article 136 was attracted. The majority, however, held that the Industrial Tribunal was not Court, but as Article 136 is wide enough to cover the ease of a decision by any Tribunal, the Supreme Court is entitled to admit an appeal against the decision of a Tribunal.

It was contended by the Central Government, which we have already pointed out, that Article 136 of the Constitution is not attracted in case of administrative order and that the award by the Tribunal was only an administrative determination. To that effect there was a difference of opinion between die majority and the minority view, but all the Judges were of the opinion that the Industrial Tribunal is not a Court. Although it may have all the trappings of a Court, it was not a Court in technical sense. It does not come within the hierarchy of the Courts.

3. The matter came up for decision in several other cases of the Supreme Court in 1958. Each case will depend upon the provisions of the particular Act under which the Tribunal is constituted. ' The decision will also depend upon tle nature of the . power exercised by the Tribunal and the procedure which has got to be observed by the Tribunal in determining the matter before it. No hard and fast rule can be laid down; but, as we have pointed out in the case referred to above, the question was directly before the Supreme Court whether die award of the Industrial Tribunal was that of a Court or not, and, we are bound by that decision.

It may be useful to refer to the three other cases of the Supreme Court: (i) in the case of Brajanandan Sinha v. Jyoti Narain : 1956CriLJ156 ; Virindar Kumar v. State of Punjab : 1956CriLJ326 ; and J. K. Iron and Steel Co., Ltd. Kanpur v. Iron and Steel Mazdoor Union, Kanpur, : (1956)ILLJ227SC As was pointed out in the case of (S) : 1956CriLJ156 , the word 'Court was not defined in the Contempt of Courts Act, and, the expression 'Courts subordinate to the High Courts' in Section 3(1) of the Contempt of Courts Act would 'prima facie' mean the Courts of law subordinate to the High Courts in the hierarchy of Courts established for the purposes of administration of justice throughout the Union.

There the question considered by the Supreme Court was as to the meaning of the word 'Court' in the Contempt of Courts Act. It was pointed out that the definition of 'Court' in Section 3, Evidence Act, is not exhaustive but framed only for the purpose of that Act and is not to be extended where such an extension is not warranted. It was further held that the ?definitions of the words 'Judge' and 'Court of Justice' in Sections 19 and 20 of the Penal Code indicate that the pronouncement of a definitive judgment is considered the essential 'sine qua non of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constitute a Court. On the examination of the provisions of the statute, it was held that the Tribunal in that case was not a Court within the meaning of the Contempt of Courts Act.

4. In the other case A.I.R. 1956 S.C. 153, the question which came up for decision was as to whether the Returning Officer, under the Representation of the People Act, was a Court within the meaning of Section 195(1) (b) of the Code oi Criminal Procedure. We have considered the provisions of the Industrial Disputes Act and we do not think that it can be said that the Industrial Tribunal is a Court within the meaning of Section 195(l)(b) of the Code of Criminal Procedure. No doubts the Act| provides that for the purpose of Section 193 the proceedings before the Tribunal will be considered to be judicial and further that the Tribunal has got powers to summon witnesses; but, the Act does not provide that the Industrial Tribunal will be considered to be a Court within the meaning of Section 195(1) (b) of the Code of Criminal Procedure.

In fact Section 11(8) of the Act specifically lays down that every Tribunal will be a Civil Court for the purposes of Sections 480 and 482 of the Code of Criminal Procedure. The Magistrate was empowered to take cognizance of the case on a complaint made' by the Secretary. It was not necessary that a complaint should have been filed by the Industrial Tribunal. It should also be pointed out that an application was actually made by the opposite party before the Industrial Tribunal for making a complaint, which was rejected on the ground that the Tribunal was not a Court, and, consequently, no application could be made Under Section 476 of the Code of Criminal Procedure, asking the Tribunal to file a complaint. The rule is accordingly discharged. The records should be sent down to the court below immediately.

H. Deka, Actg. C.J.

5. I agree.