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1976 DIGILAW 190 (KAR)

R. P. PATIL v. S. G. DESHPANDE

1976-11-03

K.J.SHETTY

body1976
( 1 ) ONE complaint for an offence under S. 26 (2) of the Industrial Disputes act, 1947, which is hereinafter called 'the Act', was filed before the Judicial magistrate, First Class, Belgaum, against the petitioner who was then Resident engineer of Amalgamated Electricity Co. Ltd. The Complaint was filed not by the Labour Officer authorised for the purpose; but, by the Asst labour Commr, Belgaum Division, who was in additional charge of the duties of the Labour Officer. The petitioner contended before the lower Courts and repeats the same before me that that complaint is not valid and the Court shall not take cognizance of the offence on that complaint. To put it in other words, the contention is that the Labour Officer alone was a designated authority to rile the complaint, and that his statutory function to file the complaint could not have been performed by the Asst Labour Commr who was placed in additional charge of the duties of the Labour Officer. ( 2 ) THE above contention is based on the well-known principle that a person who is placed in additional charge of the duties of a post could only perform the current duties and not the statutory functions of the incumbent of that post. The learned Magistrate did not accept that contention. So also the learned Sessions Judge. The learned Sessions Judge has observed that the above principle is not attracted to a case where a superior office is placed in additional charge of the duties of an inferior officer. He has also observed that the filing of a complaint for an offence under S. 26 (2) of the Act is not one of the statutory functions of the Labour Officer, but it may be said to be one of his current duties, which duty the Asst Labour Commr was competent to perform since he was placed in additional charge of the duties of the Labour Officer. ( 3 ) I will now refer to the relevant provisions of the Act bearing on the question with a little more facts of the case. The Government on 23rd July 1971, made an order as follows :"government of Mysore No. FOL 341 LLD 71 mysore Govt Secretariat, "vidhana Soudha' Bangalore d/. ( 3 ) I will now refer to the relevant provisions of the Act bearing on the question with a little more facts of the case. The Government on 23rd July 1971, made an order as follows :"government of Mysore No. FOL 341 LLD 71 mysore Govt Secretariat, "vidhana Soudha' Bangalore d/. 23-7-1971 order whereas, the Govt of Mysore in exercise of the powers conferred by sub-sec (3) of S. 10 of the Industrial Disputes Act, 1947 by its order no. FCL. 341. LLD. 71 dated 10-6-71, prohibited the continuanceof the lock-out by the Management of Amalgamated Electricity Co, Ltd, belgaum Branch, Belgaum, WHEREAS, it is brought to the notice of govt that the Management of the Amalgamated Electricity Co. , Ltd. , belgaum have not allowed their employees to resume duty and continued the lock-out thereby contravening the provisions of S. 26 (2) of the Industrial Disputes Act, 1947. WHEREAS, the Govt of Mysore are satisfied that the Management of the Amalgamated Electricity Co. , Belgaum have contravened the provisions of S. 26 (2) of the Industrial Disputes Act 1947 by not allowing their employees to resume duty. NOW THEREFORE, in exercise of the powers conferred by S. 34 (1) of the Industrial Disputes Act, the Govt of Mysore hereby authorise the Labour Officer, Belgaum to file a complaint for an offence punishable under sub-sec 2 of S. 26 of the said Act against the following persons for contravention as specified above. (1) Sri N. C. Zaveri, Managing Director, The Amalgamated electricity Co. , Ltd. , No. 17-B, Horniman Circle, Fort; Bombay. (2) Sri R. P. Patel, Resident Engineer, The Amalgamated electricity Co. , Ltd. , Belgaum Branch, Belgaum. BY ORDER AND IN THE NAME OF THE PRESIDENT OF INDIA, sd/- (Anirudha Desai), Under Secretary to Govt. , Food, Civil Supplies and Labour Department. Copy to: All the concerned. "the Govt by the above order, authorised the Labour Officer, Belgaum to file the complaint. Admittedly, he did not file as he was on leave during the relevant period. He was sanctioned 30 days Earned Leave from 16-7-71 to 14-8-71 on domestic affairs. Shri S. G. Deshpande, Asst Labour Commr, hubli, was placed in additional charge of the duties of the Labour Officer, by the Office Order dated 24th June 1971, made by Commr of Labour, bangalore. He was sanctioned 30 days Earned Leave from 16-7-71 to 14-8-71 on domestic affairs. Shri S. G. Deshpande, Asst Labour Commr, hubli, was placed in additional charge of the duties of the Labour Officer, by the Office Order dated 24th June 1971, made by Commr of Labour, bangalore. The relevant portion of the said order reads : sri N. Nadesan, Labour Officer, Belgaum, is sanctioned 30 days earned leave from 16-7-1971 to 14-8-1971 on private domestic affairs. His option to surrender further 30 days earned leave from 15-8-1971 to 13-9-1971 is accepted and leave salary and allowances for this period are sanctioned in accordance with paragraph (i) of G. O. No. GD 59 SRS 70, dated 29-1-1971. Sri N. Nadesan would have continued to officiate as Labour Officer but for proceeding on leave. He is reposted to his original place as Labour Officer after expiry of leave. Sri S. G. Deshpande, Asst Labour Commr, Hubli, is placed in additional charge of the duties of the Labour Officer, Belgaum, during his leave period or until further orders. Sd/- for Commr of Labour". The Asst Labour Commr filed the complaint on 10th August 1971. The question before me is whether the Court could take cognizance of the offence complained of. ( 4 ) S. 34 (1) of the Act provides that the Court shall not take cognizance of an offence punishable under the Act, save on a complaint made by or under the authority of the appropriate Govt. In the instant case, the appropriate Govt is the State Govt. The complaint could have been filed either by the State Council, or by anybody else under the authority of the state Govt. All that the latter portion of 3. 34 (1) provides is that there shall be an authority of 'the Govt to file the complaint. Without such authority, if the complaint is filed, then the Court has no jurisdiction to take cognizance of the offence. The Section, as I understand, has been designed to prevent the launching of frivolous prosecutions. The Govt competent to initiate prosecutions should apply its mind to the facts of the case, and satisfy itself that a prima facie case exists against the offender. This responsibility is not that of the complainant who is authorised to file the complaint. The Section, as I understand, has been designed to prevent the launching of frivolous prosecutions. The Govt competent to initiate prosecutions should apply its mind to the facts of the case, and satisfy itself that a prima facie case exists against the offender. This responsibility is not that of the complainant who is authorised to file the complaint. The authorised person presents the complaint to the Court and the court then has to merely look into the authorisation of the competent Govt to file the complaint. Similar view has been expressed by the Madras High court in Public Prosecutor v. S. A. Jabbar (1 ). In that case, the complaint filed by the Asst Public Prosecutor representing the State was upheld although no specific authority was conferred upon him and the State Govt only authorised the Collector of the District to take necessary action to prosecute the offender. It appears to me, therefore, that what is important for the Court to take cognizance of the offence complained of under the Act is, the authority of the State Govt to file the complaint. If that authority has been properly given after having satisfied itself with the prima facie case against the offender, then the Court cannot refuse to take cognizance of the offence. ( 5 ) IN the instant case, there is no dispute as to the validity of the authorisation given by the State Govt. The dispute is only regarding the competency of the Asst Labour Commr, who was placed in additional charge of the duties of the Labour Officer, to file the complaint. I fail to see why that complaint could not have been presented by the Asst Labour Commr. He was placed in additional charge of the duties of the Labour Officer, No provision of law has been brought to my notice to prove that the Labour officer alone has the competence to file the complaint in respect of an offence falling under the Act. It is also not proved that the filing of such complaints was one of the statutory functions of the Labour Officer. In the absence of any such statutory provisions, one must take it that it was a part of his current duties. The Labour Officer was on leave. The Asst Labour commr, who was placed in additional charge of the duties of the Labour officer, could, therefore, file that complaint. In the absence of any such statutory provisions, one must take it that it was a part of his current duties. The Labour Officer was on leave. The Asst Labour commr, who was placed in additional charge of the duties of the Labour officer, could, therefore, file that complaint. The Court was justified in taking cognizance of the offence. ( 6 ) BEFORE parting with the case, I feel, it is necessary to refer to the subsequent developments in the case. The complaint relates to an offence' that was said to have been committed in the year 1971 when the petitioner was a Resident Engineer of the Amalgamated Electricity Co. , Ltd, Belgaum. The entire Company has been now acquired by the State Govt in December 1974 and it is said that the petitioner is no longer in service in the said company. In view of these circumstances it is for the State Govt to consider whether it is proper to prosecute the petitioner at this stage. With the above observation, this petition is dismissed. --- *** --- .