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1974 DIGILAW 273 (KAR)

S. ANNAJJ JADHAV v. STATE OF MYSORE

1974-12-11

K.J.SHETTY

body1974
( 1 ) THE petitioner, S. Annaji Rao Jadhav, has obtained a rule from this court calling upon the respondents to show cause why a writ under art. 226 of the Const should not be granted for quashing the Circular of the Commissioner of Labour, d/ 11-3-1970 and the order of his transfer d/8-6-1973. He has also prayed for a writ or order to quash certain memos issued by the Commissioner of Labour relating to the performance of his official duties. ( 2 ) THE petitioner is a Labour Inspector appointed by the State Govt. His main duty, among others, is to enforce the provisions of the Karnataka shops and Commercial Establishments Act, 1961, hereinafter referred to as 'the Act". While performing his duty, it appears, he has been misunderstood by his official superiors and particularly the Commissioner of labour. On 11-3-1970, the Commr of Labour issued a Circular which is in the following terms :"govt of Mysore, Dept of Labour office of the Commr of Labour in Mysore, P. B. 304, B'lore-1 no. IE/sca/aar/ch. 165/69-70. d/. 11th March, 1970 circular sub: "prosecutions under several Labour Acts ref: Letter No. FCL 35 LWA 69 d/. 25-2-70 from Govt. Sanction for launching prosecution under any Act should be obtained from the Commr of Labour in Mysore, Bangalore in respect of statutory Corporations, Banks and Public Sector Undertakings. The Chief Inspector of Factories and Boilers and Officers of the labour Wing are instructed to see that they adhere to the above instructions strictly. Sd/ for Commr of Labour. "the petitioner did not follow thei Circular. He was of thei opinion that in prosecuting any employer for disobedience of the provisions of the Act, no sanction from the Commr was necessary. Accordingly, he prosecuted the Manager of Hindustan Steel Ltd, Branch Sales Office, Bangalore and the Accountant of the said firm. The Commr found fault with the petitioner for contravening the Circular and he, by his memo d/14-11-1972 warned the petitioner for his negligence and dereliction of duties in carrying out the instructions contained in his Office Circular d/11-3-1970. The petitioner requested the Commr to withdraw the warning, inter alia, contending that the Inspector appointed under the Act is well within his powers to launch prosecutions against parsons contravening any of the provisions of the Act without the sanction of the Commr. The Commr refused to withdraw the warning. The petitioner requested the Commr to withdraw the warning, inter alia, contending that the Inspector appointed under the Act is well within his powers to launch prosecutions against parsons contravening any of the provisions of the Act without the sanction of the Commr. The Commr refused to withdraw the warning. On 19-1-1971, the Commr issued another memo to all the Labour Officers and Inspectors in the State stating that the prosecution proposals should be submitted by the; Labour Inspectors to the Labour Officers with all the relevant records for scrutiny and suitable instructions as to whether the cases could be filed before Courts and obey the instructions thus issued to the Inspectors by the Labour Officers in regard to the prosecutions. On 8-6-1973, the petitioner was transferred from Bangalore to KGF. Thereupon, he immediately moved this Court with an application under Art. 226 of the Constn, contending that his transfer was mala fide and the Circular d/11-3-1970 was invalid and ultra vires of the Act. ( 3 ) THE allegations of the petitioner have been controverted in the statement of Objections, the deponent of which is one Under Secretary to govt, Social Welfare and Labour Dept, Bangalore. It was said that the commr being a Head of the Dept and also the principal officer for administration of the Act, was competent to issue the impugned Circular. It was also stated that the said Circular was issued with a view to prevent frivor lous prosecutions being launched by the Labour Inspectors against statutory corporations, Banks and Public Sector Undertakings, and it only directed the Labour Inspectors to obtain prior sanction from the Commr on the administrative side, and the, same did not take away the power conferred on the Labour Inspectors to launch prosecutions under the various labour laws in force,. It was further stated that the petitioner who is a subordinate officer, cannot challenge the validity of the Circular issued by the Head, of the Dept and the principal officer under the various labour laws. As regards the, transfer of the petitioner from Bangalore to Kolar, it was stated that it was done, in the public interest and not on account of any mala fides alleged by the petitioner. As regards the, transfer of the petitioner from Bangalore to Kolar, it was stated that it was done, in the public interest and not on account of any mala fides alleged by the petitioner. ( 4 ) THE first and the most important question for determination] in this case is, whether the Circular d/11-3-1970 issued by the Commr, asking the Labour Inspectors to obtain his prior sanction for launching prosecutions against statutory Corporations, Banks and Public Sector undertakings was valid. ( 5 ) THE following provisions of the Act got a bearing on the question for determination. S. 2 (k) defines 'inspector', to mean 'an Inspector appointed under Sec. 26 and includes the Chief Inspector and an Asst Inspector'. S. 3 provides exemptions of the provisions of the Act to officers, establishments and some persons set out therein. Chap. VII consisting of Ss. 26 to 29, provides for enforcement and Inspection. Sec. 26 fiempowers the State govt by notification to appoint such persons or such class of persons as it thinks fit, to be Inspectors and Asst Inspectors for the purposes of the Act within such local limits as it may assign to them respectively. The Commr of Labour in Mysore under S. 26 (2), shall be the Chief Inspector for the purposes of the Act for the whole of the State. S. 27 confers powers on the inspectors to enter, at all reasonable! times and with such assistants, if any, being persons in the service, of the State Govt, as he thinks fit, any place which is or which he has reason to believe is, an establishment. He may make such examination of the premises and of any prescribed registers, records and notices, and take on the spqt or otherwise, evidence of any person, as he may deem necessary, for carrying qut the purposes of the act. S. 28 makes every Inspector to bei a public servant within the meaning of S. 21 IPC. Each Inspector or an Asst Inspector has gqt a local area for operation which becomes his jurisdiction for enforcement of the provisions of the Act, whereas the Commr of Labour shall be the Chief Inspector for the whole of the Stete. Chap. VIII provides for offences, penalties and procedure. Sec. 31 therein provides :"31. Each Inspector or an Asst Inspector has gqt a local area for operation which becomes his jurisdiction for enforcement of the provisions of the Act, whereas the Commr of Labour shall be the Chief Inspector for the whole of the Stete. Chap. VIII provides for offences, penalties and procedure. Sec. 31 therein provides :"31. Procedure.- (1) No prosecution under this Act or the rules or orders made thereunder shall be instituted save on a complaint in writing by an Inspector. (2) No Court inferior to that of a Magistrate of the Second Class shall try any offence punishable under this Act or any rules or orders made thereunder. "section 32 provides : * * * * section 33 provides : * * * * ( 6 ) COMING to the Rules framed under the Act, the duties of Inspectors are provided under Rule 21. It provides as follows :"21. Duties of Inspectors.- (1) The Inspector shad make such examination as may appear to him to be necessary for the) purpose of satisfying himself that the provisions of the Act and of these rules and any order passed by Govt under the Act are duly observed. In particular he shall satisfy himself- (i) that the establishment is duly registered under the Act; (ii) that the registers, records and notices required to be maintained or displayed under the Act or these rules are properly maintained or displayed; (iii) that the intervals of rest and holidays required to be granted or observed under the Act are 'granted and observed ' and the limits' of hours of work and spread over laid down under the Act are granted and observed and the limits of hours of work and spread over laid down under the Act are not exceeded; (iv) that the provisions of the Act and any notification issued by Govt regarding the opening and closing hours are duly observed; (v) that the provisions of the Act and the rules regarding leave are properly observed; (vi) that the provisions of these rules relating to cleanliness, lighting and precaution against fire are properly observed; (vii) that the provisions of the Act relating to the, payment for overtime work are duly observed; (vii) that no child is allowed to work in any establishment. (2) For carrying put such examination, the Inspector may interrogate such persons on the premises as he may deem necessary provided that no such person shall be required under this rule to answer any question the answer to which might tend to incriminate him. "rule 23 provides :"23. Submission of diary by Inspector.-The Inspector shall keep a file of the records of his inspection arranged in monthly bundles and shall submit to the officer to whom he is subordinate on the 15th of each month a diary in Form 'k'. "from the scheme of the Act and the Rules, it appears to me that the labour Inspectors are appointed by the State Govt for different local limits and are charged with a duty to enforce the provisions of the Act and the Rules. They are the only persons to file complaints against the persons who disregard provisions of the Act and the Rules. The Court has nc power to take cognisance of any offence unless complaint thereof is made within six months from the day on which the offence is alleged to have been committed. The Act and the Rules dp not provide for any sanction of the Commr for instituting any prosecution nor it is necessary for the Court to take! cognisance of the offence. Thei Act thus specifically provides the authorities to institute prosecution and also the manner in which it has got to be instituted. The Commr may be the Chief Inspector for the entire State under the Act, but no power was conferred on him to grant' sanction for the prosecution of any erring person. ( 7 ) IT was contended that the impugned Circular was issued with a view to prevent frivolous prosecutions being launched by the Labour inspectors against the statutory Corporations, Banks and Public Sector undertakings and the Commr being the Head of the Dept, would be competent to issue, such administrative direction. ( 8 ) IT is well known that neither the Govt nor the Departmental Head" can amend or supersede statutory provisions by administrative instructions, and it is only when a particular point is silent in the statutory provisions, it could be supplemented by issuing instructions not inconsistant with the statutory provisions. The commr, of course being the head of the Dept and the Chief Labour Inspector for the whole State, is entitled to scrutinise and supervise! The commr, of course being the head of the Dept and the Chief Labour Inspector for the whole State, is entitled to scrutinise and supervise! th activities of the Labour Inspectors, and guide them with such instructions so that they may effectively discharge their statutory duties and in accordance with the mandate of the legislature; but such instructions should not be Inconsistent with the provisions of the Act and the Rules. If the Commr issued any such Circular altering the code of conduct contrary to the provisions of the Act it would be a gross violation of the statute. The moment the offence is committed by the emloyer, the law must take its own course, and it is the duty of the jurisdictional Labour Inspector to institute prosecution against the person who, has committed the offence and ill is not open to the Commr to change the course of law by insisting that no prosecution shquld take place without his sanction. That amounts to prohibiting the Inspector of labour from discharging his legal duty under the Act and the Rules. Once the Legislature has made the law, whether substantive or procedural, the executive or subordinate executive authority has no power to add to or detract from its contents, to interfere with its working or to effect any discretionary power unless such power is clearly granted under the law. The responsibility for enforcement of the provisions of the Act and the Rules lies primarily on the Labour Inspector. He is answerable to the law and to the law alone, and if he commits acts contrary to law or instititutes prosecution by abusing his power, it is open to the Commr to take action against such Labour Inspectors, but he cannot command them to obtain his prior sanction:. to institute prosecution in the guise of supervising their activities. I do not know why the Commr hap given special importance for the statutory Corpns, Banks and Public Sector Undertakings. All the employers and their establishments must be treated alike, for the enforcement of the Act and the Rules unless the Legislature has made any reasonable classification among them. I dq not find any such classification under the Act or the Rules except the discrimination made by the Commissioner by his administrative instructions. All the employers and their establishments must be treated alike, for the enforcement of the Act and the Rules unless the Legislature has made any reasonable classification among them. I dq not find any such classification under the Act or the Rules except the discrimination made by the Commissioner by his administrative instructions. ( 9 ) THE duties of the Labour Inspector under the Act and the Rules, in my view, are similar in nature to the duties of the Police on whom the responsibility fox enforcement of law lies whenever an offence is committed. The supervisory power and duty of the Inspector General of Police lies only in ensuring that a disciplined Police force remains always alert to carry out the statutory duties. Likewise, is the power of the Commr of labour while supervising and directing the Labour Inspectors to carry out their statutory functions. He cannot put a constraint on them by changing the course of law and prevent them from doing their legal duty by issuing instructions such as found in the impugned Circular. In my view, therefore, the Circular d/11-3-1970, issued by the Commissioner was uutra vires of the Act, and therefore invalid. ( 10 ) IT was next contended that the Labour Inspector being a subordinate official, cannot challenge the validity of the Circular issued by the head of the Dept. I am unable to accept it as a sound proposition. The whole obect of the writ of mandamus which the Constitution expressly empowers the, High Courts to issue, is to ensure that the Legislative mandate is carried out regardless of the will of the executive, and when once it is brought to the notice of this Court that the, Legislative intent is not being carried out by a subordinate executive authority, it is the duty of this Court to see that the law of the land id enforced by the person and in the manners provided by the Act. ( 11 ) FOR violating the Circular instructions, the, petitioner was warned several times and his complaint is that it has resulted in his transfer. It is difficult to hold that the petitioner was transferred solely on the ground that he has opposed the impugned Circular. It must, however, be stated that the warning given to the. ( 11 ) FOR violating the Circular instructions, the, petitioner was warned several times and his complaint is that it has resulted in his transfer. It is difficult to hold that the petitioner was transferred solely on the ground that he has opposed the impugned Circular. It must, however, be stated that the warning given to the. petitioner by the Commr from time to time for violating the impugned Circular should not prejudice his official career since the Circular has been now found to be invalid. Apart from that, the petitioner in his letter dt. 13-12-1972 earlier referred to, has done nothing more than to give expression to his views that the impugned circular was contrary to the Act, and in the context should not have been considered as disobedience to his official superior. ( 12 ) IN the result, the rule is made absolute. A writ of mandamus shall issue against the Commissioner of Labour to prohibit from enforcing then impugned Circular dt. 11th March 1970. In the circumstances, I make no order as to costs. --- *** --- .