Bapusingh Sayaba Vs. Ajay Kumar - Court Judgment

Excerpt:
- sections 4(3), proviso, 5 & 6: [m.s. shah, d.h. waghela & akil kureshi, jj] complaint alleging inaccuracy or deficiency in maintaining record in prescribed manner as required under section 4(3) - held, it need not contain allegation of contravention of provisions of section 5 or section 6. burden to prove that there was contravention of provisions of section 5 or 6 does not lie upon prosecution. sections 5 & 6 & pre-conception & pre-natal diagnostic techniques (prohibition of sex selection) rules, 1996, rule 9: [m.s. shah, d.h. waghela & akil kureshi, jj] deficiency or inaccuracy in filling form f - held, deficiency or inaccuracy in filling form f prescribed under rule 9 of the rules made under pndt act, being a deficiency or inaccuracy in keeping record in the prescribed manner, it is not a procedural lapse but an independent offence amounting to contravention of the provisions of section 5 or 6 of the pndt act and has to be treated and tried accordingly. it does not, however, mean that each inaccuracy or deficiency in maintaining the requisite record may be as serious as violation of the provisions of section 5 or 6 of the act and the court would be justified, while imposing punishment upon conviction, in taking a lenient view in cases of only technical, formal or insignificant lapses in filing up the forms. for example, not maintaining the record of conducting ultrasonography on a pregnant woman at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of section 5 or 6 were violated, but incomplete details of the full name and address of the pregnant woman may be treated leniently if her identity and address were otherwise mentioned in a manner sufficient to identify and trace her. section 28: [m.s. shah, d.h. waghela & akil kureshi, jj] cognizance of offence held, use of the words appropriate authority twice, at the beginning and end of clause (a) of sub-section (1) of section 28, clearly conveys that complaint could be made by an officer who is authorised in that behalf by the central government, the state government or the appropriate authority, besides the appropriate authority itself. the power to delegate and authorise an officer to make a complaint is clearly conferred upon all the three authorities under the provisions of section 28, and, therefore, a court can take cognizance of an offence under the act on a complaint made by any officer authorised in that behalf by the appropriate authority. - 2. the brief facts giving rise to these petitions are as under :disputes having arisen between the employees and the employer, it was sought to be resolved through conciliation proceedings ended in failure. the conciliation officer submitted failure report to the appropriate government on 15-5-2000 vide annexure-'b'.the appropriate government considered the failure report and rejected the reference through annexure-'c' dated 28-7-2000. the communication reads as under :the dispute is raised after six years without any justifiable reason' 3. the contention of shri pathak is that, on grounds of limitation the reference could not be rejected by the appropriate government. the judgment of the full bench of the punjab and haryana high court has completely ignored the object of the act and various pronouncements of this court as noted hereinabove and thus is not a good law on the point of the applicability of the period of limitation for the purposes of invoking the jurisdiction of the courts/boards and tribunal under the act. on receipt of the failure report, the appropriate government was required to proceed as contemplated under sec. 12(5) of the industrial disputes act, which provides that, if, on a consideration of the report referred to in sub-section (4), the appropriate government is satisfied that there is a case for reference to a board, labour court, tribunal or national tribunal, it may make such reference. 12(5), if the appropriate government is satisfied that there is a case for reference it has to make reference. thus, while considering the failure report, the appropriate government has to come to prima facie satisfaction that there is a case for reference. for this exercise, the appropriate government has not taken into consideration the charter of demand submitted by the workmen before the conciliation officer, which also forms part of the failure report. unless, these provisions were kept in mind, reference consequent upon the failure report could not be refused merely on grounds of delay and limitation. the appropriate government is directed to consider the failure report in the light of sec.d.c. srivastava, j.1. these petitions can be finally disposed of at the admission stage. shri ph pathak, learned counsel for the petitioners and mrs.siddhi talati, learned counsel for the respondent have been heard.2. the brief facts giving rise to these petitions are as under :disputes having arisen between the employees and the employer, it was sought to be resolved through conciliation proceedings ended in failure. the conciliation officer submitted failure report to the appropriate government on 15-5-2000 vide annexure-'b'. the appropriate government considered the failure report and rejected the reference through annexure-'c' dated 28-7-2000. the communication reads as under :'the dispute is raised after six years without any justifiable reason'3. the contention of shri pathak is that, on grounds of limitation the reference could not be rejected by the appropriate government. he has placed reliance upon the apex court's verdict in ajaib sing v. sirhind coop. marketing-cum-processing service society limited (1999)6 s.c.c. 82. in this case, it was held in para-10 as under: 'we are of the opinion that the punjab and haryana high court was not justified in prescribing the limitation for getting the reference made or an application under section 33-c of the act to be adjudicated. it is not the function of the court to prescribe the limitation where the legislature in its wisdom had thought it fit not to prescribe any period. the courts admittedly interpret law and do not make laws. personal views of the judges presiding over the court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally left over by the legislature. the judgment of the full bench of the punjab and haryana high court has completely ignored the object of the act and various pronouncements of this court as noted hereinabove and thus is not a good law on the point of the applicability of the period of limitation for the purposes of invoking the jurisdiction of the courts/boards and tribunal under the act.'it is, thus, apparent from the impugned order that the appropriate government refused to make reference to the labour court/industrial tribunal only on the ground of delay. since, no limitation is prescribed for making reference, the view of the appropriate government is contrary to law. on receipt of the failure report, the appropriate government was required to proceed as contemplated under sec.12(5) of the industrial disputes act, which provides that, 'if, on a consideration of the report referred to in sub-section (4), the appropriate government is satisfied that there is a case for reference to a board, labour court, tribunal or national tribunal, it may make such reference. where the appropriate government does not make such a reference it shall record and communicate to the parties concerned its reason therefor.' thus, under sec.12(5), if the appropriate government is satisfied that there is a case for reference it has to make reference. while doing so, the appropriate government is further obliged to keep in mind the provisions of sec.10 of the industrial disputes act, which provides that, 'where the appropriate government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing, refer interalia to the authorities mentioned in this section. thus, while considering the failure report, the appropriate government has to come to prima facie satisfaction that there is a case for reference. for this exercise, the appropriate government has not taken into consideration the charter of demand submitted by the workmen before the conciliation officer, which also forms part of the failure report. the appropriate government also lost sight of the provisions of sec.10, because there is no mention in the impugned order that the appropriate government was of opinion that any industrial dispute exists or is apprehended. unless, these provisions were kept in mind, reference consequent upon the failure report could not be refused merely on grounds of delay and limitation.4. in the result, the impugned order can not be sustained. the petitions, therefore, succeed and are hereby allowed. the impugned order annexure-'c' is quashed and set aside. the appropriate government is directed to consider the failure report in the light of sec.12(5) read with sec.10 of the industrial disputes act and shall proceed to pass orders in accordance with these sections within two weeks from the date of presentation of copy of this judgment. no order as to cost.