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1949 DIGILAW 80 (MAD)

Untitled judgment

1949-02-24

PANCHAPAKESA AYYAR, SUBBA RAO

body1949
Judgment Subba Rao, J.-This is a revision against the order of the Additional District Magistrate, Mathurai, in C.C. No. of 1947 overruling the preliminary objections raised by the petitioners. The accused are the directors of the Mahalakshmi Textile Mills, Ltd., Pasumalai, Mathurai. Accused 1, 4 and 5 are partners in Messrs. S.S.N. Lakshmanan Chettiar and Company, who are the managing agents of the said Mills. In G.O. No. 1629 (Development) dated 15th April, 1947 the Government appointed an Industrial Tribunal to adjudicate upon the industrial disputes existing between the workers and the management of the textile mills in the Madras Province. After enquiry the tribunal gave an award increasing the emoluments of the workers and the same was accepted by the Government in G.O. No. 3080 (Development) dated 15th July, 1947. A copy of the award was duly communicated to the management of the accused’s mill for implementation. As they have not implemented the award the Government of Madras authorised the District Magistrate, Mathurai, to prosecute the management of the Maha-lakshmi Textile Mills Ltd. Accordingly, the District Magistrate, Mathurai, filed a complaint against the accused under Section 29 of the Industrial Disputes Act, 1947. The accused raised two preliminary objections namely, that the tribunal had no jurisdiction to pass the award, and also that the sanction given by the Government for prosecution was invalid. The Additional District Magistrate, Mathurai, overruled the objections. The accused have preferred the Criminal Revision Petition against that order. Mr. Alladi Krishnaswami Aiyar has raised two contentions before us: (i) that the award passed by the tribunal was without jurisdiction as the reference made to it by the Government was invalid; (ii) that the sanction given by the Government for the prosecution was contrary to the provisions of Section 34 of the Industrial Disputes Act, 1947. To appreciate the first contention, it is necessary to notice the G.O., M.S. No. 1629 (Development) dated 15th April, 1947 issued under section 10(i) of Act XIV of 1947 referring the disputes to the tribunal. To appreciate the first contention, it is necessary to notice the G.O., M.S. No. 1629 (Development) dated 15th April, 1947 issued under section 10(i) of Act XIV of 1947 referring the disputes to the tribunal. It reads: "Whereas Industrial disputes have arisen between the workers and managements of certain textile mills in the Province of Madras and Industrial disputes are apprehended in the rest of the textile mills in the province in respect of certain matters; " And whereas in the opinion of His Excellency the Governor of Madras, it is necessary to refer the said industrial disputes for adjudication: Now, therefore, in exercise of the powers conferred by section 7(i) and (2) read with section 10(1) (c) of the Industrial Disputes Act, 1947 (Central Act XIV of 1947), His Excellency the Governor of Madras hereby constitutes an Industrial Tribunal consisting of one person, namely, Sri Rao Bahadur M. Venkataramayya, retired District and Sessions Judge, and directs that the said industrial disputes be referred to that Tribunal for adjudication." It is not necessary to consider the argument of the learned counsel as regards the validity of the notification in great detail as the validity of a Notification similar in terms was considered by this Court in O.S.A No. 69 of 19481. The Notification in that case was in, the following terms: " Whereas industrial disputes have arisen between the workers and managements of certain Engineering firms and Type foundries in the Province of Madras and whereas industrial disputes are apprehended in the rest of the Engineering firms and type foundries in respect of certain matters; ......in exercise of the powers conferred by section 7(1) and (2) read with section 10(1)(c) of the Industrial Disputes Act, 1947.......His Excellency the Governor of Madras hereby constitutes an Industrial Tribunal consisting of one person, namely, Sri T. D. Ramayya Pantulu.....and directs that the said industrial disputes be referred to that Tribunal for adjudication." A comparison of that Notification with the Notification in question in this case reveals that both the notifications are word for word the same except in regard to the name of the firms and the name of the tribunal. One of us sitting on the Original Side of this court held that section 10 of the Act did not contemplate a reference to the Tribunal for deciding all apprehended disputes generally in the Province of Madras, and that such a reference by the Government in general terms was not valid and therefore the tribunal had no jurisdiction to decide the dispute in that case. An appeal was preferred against that order, and it was confirmed by Horwill and Rajagopalan, JJ. The learned Judges also held that the reference made by the Government was not competent because of the generality of the application of the Notification. It follows that the Notification dated 15th April, 1947, was illegal and, therefore, the award passed by the tribunal pursuant to that Notification was also invalid. As the prosecution was launched on the basis of an illegal award we are of the opinion that the complaint is not sustainable. The second argument of the learned counsel is based upon section 34 of Act XIV of 1947. The section reads: “No Court shall take cognizance of any offence punishable under this Art or of abetment of any such offence save on a complaint made by or under the authority of the appropriate Government.” In this case the Government did not file the complaint but authorized the District Magistrate to do so. The requisite authority was conferred on the Magistrate in the Government Memorandum to the District Magistrate dated 5th September, 1947. The Government say in that Memorandum: “A copy of the Memorandum is forwarded to the District Magistrate. Mathurai. He is requested to prosecute the management of the Mahalakshmi Textile Mills, Ltd.. Pasumalai, if the award has not been implemented.” The contention of the learned counsel is that the Government concerned must satisfy itself whether the facts existed for making the compaint and that it has no power to delegate its duty to a third party. In this case, according to the learned counsel, the Government did not decide on the facts whether the management of the Mahalakshmi Textile Mills, Ltd., made a default in implementing the award, but authorized the District Magistrate to file a complaint if, in his view, the award was not implemented. In this case, according to the learned counsel, the Government did not decide on the facts whether the management of the Mahalakshmi Textile Mills, Ltd., made a default in implementing the award, but authorized the District Magistrate to file a complaint if, in his view, the award was not implemented. On 16th August, 1947, the Government communicated to the managing agents of the Mahalakshmi Textile Mills, Ltd., Pasumalai, inviting their attention to the recommendations of the industrial tribunal regarding the Mahalakshmi Mills, Ltd., Pasumalai, and requesting them to give effect to the award in full in a week’s time. To that communication the management replied that the financial implication in giving effect to the award would be considered by the shareholders at the meeting to be convened on the 27th instant and the decision of the shareholders would be communicated to them immediately. We do not know what happened at the shareholders’ meeting and whether they agreed to implement the award. Four days thereafter, the Government authorised the District Magistrate to prosecute the management “if the award has not been implemented”. It will be seen that the Government did not wait till the meeting of the shareholders and, therefore the Government were not in a position to decide whether the management implemented the award or not. In effect, they directed the Magistrate, to file a complaint “if he found that the award has not been implemented.” The duty to find out whether an award was implemented or not was cast on the Magistrate. If he found that the management did not implement the award he should file the complaint; if he found that the award had been implemented, he should not file the complaint. The learned Public Prosecutor asked us to substitute “since” for “if” in the Memorandum. If we accept this argument, it would be re-drafting the Memorandum issued by the Government which we could not do. If we interpret “if” as “since”, it would certainly be doing violence to the clear words used in the Memorandum. In Barindra Kumar Ghose v. Emperor1, a Bench of the Calcutta High Court had occasion to deal with the validity of a complaint filed by a Magistrate under the authority of the Government. If we interpret “if” as “since”, it would certainly be doing violence to the clear words used in the Memorandum. In Barindra Kumar Ghose v. Emperor1, a Bench of the Calcutta High Court had occasion to deal with the validity of a complaint filed by a Magistrate under the authority of the Government. The Goverment authorised the Magistrate to prefer a complaint for offences under sections 121-A, 122, 123 and 124 of the Indian Penal Code or under any other section of the said Code which may be applicable to the case. The learned Judges held that as no complaint under section 121 of the Indian Penal Code was thereby authorized by the Local Government, or, in fact, preferred, the Magistrate had no power to commit the accused under the said section. In dealing with that point the learned Judges made the following observations: " It is true that the order winds op with the words ‘ or under any other section of the said Code which may be found to be applicable to the case.‘ But found by whom? The order does not explain. It can hardly mean by the Court, as it relates to the complaint; and if it means found by anyone other than the Government, then it involves a delegation which cannot be sustained." We respectfully agree with these observations. If the committal order was bad in that case, as the Government did not itself decide whether the offence complained of came under section 121 of the Indian Penal Code and delegated such power to a person other than the Government, the complaint in this case also would be equally bad as the Government did not decide the question whether the management implemented the award and delegated its power to the Magistrate. The same principle was also laid down in a later Privy Council decision reported in Gokulchand Dwarkadas v. The King1. The Judicial Committee were considering the validity of a sanction under clause 23 of the Cotton Cloth and Yarn Control Order. The same principle was also laid down in a later Privy Council decision reported in Gokulchand Dwarkadas v. The King1. The Judicial Committee were considering the validity of a sanction under clause 23 of the Cotton Cloth and Yarn Control Order. Clause 23 of the Order provided that: " No prosecution for the contravention of any of the provisions of this order shall be instituted without the previous sanction of the Provincial Government not below the rant ot District Magistrate as the Provincial Government may by general or special order in writing authorise in this behalf The sanction given by the Government is in the following terms: " Government is pleased to accord sanction under clause 2 of the Cotton Cloth and Yarn (Control) Order, 1943, to the prosecution of Mr. Gokulchand Dwarkadas Morarka for breach of the provisions of clause 18(2) of the said order." At page 246 their Lordships of the Judicial Committe say: " Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case. Nor, in their Lordships’ view, is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of clause 23. Under that clause sanction has to be given to a prosecution for the contravention of any of the provisions of the order. A person could not be charged merely with the breach of a particular provision of the order. Lie must be charged with the commission of certain acts which constitute a breach and it is to that prosecution, that is, for having done acts which constitute a breach of the order, that the sanction is required. In the present case there is nothing on the face of the sanction and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to constitute a breach of the order, and the sanction is invalid." In the present case, the Memorandum issued by the Government to the District Magistrate itself discloses that the Government did not consider the facts which entitled the Government to file the complaint against the management. Indeed, in express words they leave that very question to be decided by the Magistrate. Indeed, in express words they leave that very question to be decided by the Magistrate. The learned Public Prosecutor did not dispute the legal position but he contended on the facts of the case that the Government decided on the facts that the management did not implement the award before they authorized the Magistrate to file a complaint. This contention is contrary to the plain words used in the notification and therefore we cannot accept the same. For the aforesaid reasons we hold that the complaint is not sustainable. The order of the lower Court is set aside and the revision petition is allowed. K.S. --------- Petition allowed.