G. PATRI BASAVANA GOUD, J. ( 1 ) TRACTORS and Farm Equipment Limited (TAFE) a company incorporated under the Companies act, 1956, and a share holder of the said company Sr. A. Shivashilam, have filed these writ petitions under Article 226 of the Constitution against the State of Karnataka, Union of India, and the President of TAFE Employees Union, questioning the constitutional validity of Sections 34, 25t and U of the Industrial Disputes Act, 1947 ('act' for short) and of Schedule-V to the said act, and also seek quashing of Annexure-C dated September 10, 1996, by which the 1st respondent-State of Karnataka accorded permission under Section 34 of the Act to the 3rd respondent-President of the TAFE Employees' Union, to prosecute the management of TAFE for the offence of committing unfair labour practices. ( 2 ) SCHEDULE-V to the Act lists unfair labour practices. Section 25t prohibits any employer, workmen or a Trade Union from committing any unfair labour practice. Section 25u imposes penalty on any person who commits any unfair labour practice, the punishment being imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or both. Section 34 affords protection to the persons sought to be prosecuted, inter alia for an offence punishable under Section 25u of the Act, in as much as the Court concerned can take cognizance of the said offence punishable only on a complaint made by or under the authority of the appropriate Government. ( 3 ) IN respect of disputes that had arisen between the management and workmen of TAFE, the labour Commissioner as well as State Government had been appraised of. The Labour commissioner did afford opportunity to the management of TAFE in respect of the allegations made against the said management. The management sought to justify each one of the acts attributed to it contending as to how none of those acts amounted to unfair labour practice. The labour Commissioner, nevertheless, submitted a report to the State Government recommending therein that the management should be prosecuted for committing unfair labour practice. The state Government passed an order as at Annexure-C dated September 10, 1996 under Section 34 of the Act, permitting the President of the TAFE Employees Union viz. , the 3rd respondent to file a complaint against the management of TAFE before the jurisdictional Magistrate, for committing unfair labour practice. The state Government passed an order as at Annexure-C dated September 10, 1996 under Section 34 of the Act, permitting the President of the TAFE Employees Union viz. , the 3rd respondent to file a complaint against the management of TAFE before the jurisdictional Magistrate, for committing unfair labour practice. Soon thereafter, these writ petitions were filed questioning the constitutional validity of the above said provisions and seeking quashing of the said Annexure-C. ( 4 ) THE matter is exhaustively argued by the learned counsel on both the sides on all aspects touching upon the challenge to constitutional validity of the provisions concerned, as also quashing of Annexure-C on several other grounds. One of the grounds urged is that, the 1st respondent State Government has passed the order at Annexure-C under Section 34 of the Act without application of mind. Since, I find for the reasons to be presently stated, that Annexure-C is passed by the State Government without application of mind, and as such, the said annexure-C needs to be quashed and the matter being remitted to the 1st respondent State government for a fresh consideration on due application of mind, I am of the opinion that, it would be inappropriate to deal with the said other contentions raised by the parties and to express any opinion in that regard. On the matter being so remitted to the State Government, if the State Government, on application of mind, does find it necessary to pass a fresh order under section 34, it would be open to the affected party to question it on the grounds available, including those that are urged herein and which are, for the reason as already said, not touched upon. ( 5 ) AT the time these writ petitions were filed and came up for preliminary hearing, this Court issued Rule Nisi and also stayed the operation of Annexure-C by the order dated October 11, 1996 for a period of one month, which was extended from time to time. By then Annexure-C had not yet been acted upon. However, in spite of the said Annexure-C having been stayed, and as such, it being legally not permissible for any Magistrate to act upon it, the learned jurisdictional magistrate took cognizance of the offence on the basis of Annexure-C as the permission duly accorded under Section 54 of the Act. By then Annexure-C had not yet been acted upon. However, in spite of the said Annexure-C having been stayed, and as such, it being legally not permissible for any Magistrate to act upon it, the learned jurisdictional magistrate took cognizance of the offence on the basis of Annexure-C as the permission duly accorded under Section 54 of the Act. At the out set, therefore, the learned counsel for the 3rd respondent-Employees Union Shri M. C. Narasimhan urged that at this stage. e. , at the stage of hearing of the writ petitions, Annexure-C has spent itself and there is nothing to be quashed. To accept this contention, would amount to rendering the order of stay of this Court dated October 11, 1996 meaningless. Section 34 prohibits any Court from taking cognizance of any offence punishable under the Act, except, on complaint made by or under the authority of the appropriate government. The learned Magistrate could not have taken cognizance of the offences without there being Annexure-C. The operation of Annexure-C has been stayed on the date the learned magistrate purported to take cognizance of the offences with regard to unfair labour practice. In effect, the learned Magistrate thus took cognizance in a manner that had been expressly barred by Section 34 of the Act, inasmuch as, Annexure-C was not available before him to be acted upon, since its operation had been stayed. If the writ petitioners had approached this Court after the learned Magistrate had taken cognizance on the basis of Annexure- C, then as has been pointed out on several occasions by the Supreme Court, taking recourse to Article 226 of theconstitution for seeking quashing of the proceedings before the learned Magistrate would be inappropriate and the proper course for the accused would be to put forth their pleas before the magistrate himself or in the hierarchy as provided under the Criminal Procedure Code. But, in this case, the writ petitions had been filed much earlier and the operation of Annexure-C also had been stayed and the rule being issued. There was, therefore, no order under Section 34 for the criminal Court to act upon. But, in this case, the writ petitions had been filed much earlier and the operation of Annexure-C also had been stayed and the rule being issued. There was, therefore, no order under Section 34 for the criminal Court to act upon. In ignorance of this position if the Court has acted upon at annexure-C, it cannot be said that, the said act of the learned Magistrate that was not permissible under law has rendered these writ petitions as also the earlier order of this Court dated October 11, 1996, infructuous. In somewhat similar circumstances, the Madras High Court in Kothari Sugars and Chemicals ltd. and Ors. v. State of Tamil Nadu and Ors. , 1987 FJR 394, observed that, in a case where the prosecution has been sanctioned and the order sanctioning the prosecution in open to judicial review and it is challenged in a petition under Article 226 of the Constitution, it would not be appropriate to allow the prosecution to go on and at the same time, keep the writ petition pending. The Madras High Court observed that, in a case like this, the balance of convenience becomes very relevant and important, because, keeping the writ petition pending, if the prosecution ends in conviction or acquittal and later on the writ petition was allowed, the proceedings before the criminal court would be rendered nugatory because the prosecution in question without a valid order of sanction was not maintainable, and that in such a situation, petitioners would be compelled to undergo the ordeal of prosecution which could be avoided by deciding the petition as early as possible. The Madras High Court observed that, under these circumstances, if the Court admits the writ petition, it is just and proper that, until the writ petition is decided, the further proceedings are stayed. In Mansukhlal Vithaldas Chauhan v. State of Gujarat AIR1997 SC 3400 , 1997 Crilj4059 , 1997 (3 )Crimes301 (SC ), (1998 )1 GLR793 , JT1997 (7 )SC 695 , 1997 (5 ) SCALE667 , (1997 )7 SCC622 , [1997 ]supp3 SCR705 , the Supreme Court was considering the aspect of direction of the Gujarat High Court to the Secretary of the concerned department of the State Government, to accord sanction to prosecute one Chauhan, Divisional Accountant in the Medium Irrigation Project, for an offence under the Prevention of Corruption Act. In obedience to the said direction of the High Court, sanction had come to be accorded. The legality and propriety of the High Court giving such a direction, was being considered by the Supreme court. One of the contentions urged on behalf of the State was that the matter had reached finality in so far as the aspect of sanction is concerned and as such, it is not open to question. The supreme Court pointed out that the so called finality cannot shut out the scrutiny of the judgment as the order of the Gujarat High Court in directing the sanction to be granted besides being erroneous was harmful to the interest of the appellant before the Supreme Court viz. , the official to prosecute whom sanction had been accorded. The validity of Annexure-C therefore, is very much open to be considered. ( 6 ) AS said earlier, the Labour Commissioner afforded an opportunity to the management of tafe to have its say on each of the allegations relating to unfair labour practice attributed to the said management. The Labour Commissioner was the appropriate authority to bring it to the notice of the State Government the factual position in this regard. As the file made available for perusal by the learned Government Advocate Sri Jagadish would indicate, not only that the labour Commissioner submitted factual report in this regard, but also formulated his opinion that management is guilty of unfair labour practice and that, it should be prosecuted. No exception could be taken to the Labour Commissioner having so opined. But the power under section 34 of the Act vests with the State Government and it is the State Government that has to take a decision on application of mind to the facts and circumstances of the case not only as regards the materials placed before it pointing to unfair labour practices having been indulged in by the management of TAFE, but also on the question whether it is expedient in the interest of industrial relations and peace and harmony in the industrial field to resort to prosecution. Significantly, all the instances alleged as unfair labour practices are also industrial disputes within the meaning of Section 2 (k) of the Act. Therefore, several courses of action were open to the State Government including reference of the dispute for adjudication under Section 10 (1) of the Act. Significantly, all the instances alleged as unfair labour practices are also industrial disputes within the meaning of Section 2 (k) of the Act. Therefore, several courses of action were open to the State Government including reference of the dispute for adjudication under Section 10 (1) of the Act. If, on consideration of the materials on record and on application of mind, the State government had taken a conscious decision to prosecute the management for unfair labour practices, then, the said decision could not have been found fault with. It was then open to the state Government to pass an order like the one at Annexure-C under Section 34 of the Act. But, as the file would indicate, there is total lack of application of mind on the part of the State government in this regard. Soon after receipt of the Labour Commissioner's report, a note was put up that before permitting prosecution under Section 34 of the Act, an explanation of the management should be obtained. It is next noted in the file that, the Labour Commissioner had already undertaken that exercises and had recommended that the State Government could accord permission for prosecution and as such, fresh notice to the management was not necessary. It is then stated in the note that, accepting the report of the Labour Commissioner, the permission to prosecute could be given. The file is then put up to higher officers and has reached up to the concerned Cabinet Minister incharge Leading to issuing of Annexure-C. It is thus evident that, from the Government side none of the authorities have applied their mind to the facts and circumstances of the case and the materials on record to come to the conclusion whether permission under Section 34 should be granted. It is taken as though what the Labour commissioner has done is final and that his recommendation is to be simply accepted and acted upon. There was no bar for the State Government to accept the Labour Commissioner's report and to act upon it. But, the State Government had to independently consider the matter and then, it has to come to its own conclusion and while doing so, if its ultimate decision accords with opinion expressed by the Labour Commissioner then, there would be nothing wrong with it. But, the State Government had to independently consider the matter and then, it has to come to its own conclusion and while doing so, if its ultimate decision accords with opinion expressed by the Labour Commissioner then, there would be nothing wrong with it. But the State Government does not even bother to independently consider as to what the material before it is, what the allegations are, as to which of the several alternative courses of action could be taken, and as to whether it is necessary to take recourse to prosecution, and instead, simply acts upon the recommendation of the Labour Commissioner as though it has to simply affix seal to approve to the conclusion reached by the Labour Commissioner. Thus it has to be concluded that Annexure-C is a result of the decision of the Labour Commissioner and not that of the State government. Section 34 does not give such a power to the Labour Commissioner, but, that the power thereunder vests with the State Government. ( 7 ) A Full Bench of this Court in S. N. Hada and Ors. v. The Binny Ltd. Staff Association (1988-I-LLJ-405), was considering the question as to whether a complaint lodged by a private individual securing permission from the Government under Section 34 of the Act could be regarded as complaint made by the Government or under its authority. In Paragraph 13 of the judgment, the Full Bench pointed out that, the intent of the Legislature in enacting a provision like Section 34 is to save the party against whom the complaint is to be filed, from harassment, and it is for that reason that the Government is required to apply its mind and to determine the propriety of filing a complaint. The Full Bench further observed that, the phrase 'under the authority of the appropriate Government' implies a sanction by the Government after it has considered the desirability of prosecution. If such a provision had not been enacted there could be every likelihood of filing of frivolous complaints indiscriminately. The Full Bench, therefore, held that the appropriate Government was required to apply its mind and satisfy itself before it grants the authority. If such a provision had not been enacted there could be every likelihood of filing of frivolous complaints indiscriminately. The Full Bench, therefore, held that the appropriate Government was required to apply its mind and satisfy itself before it grants the authority. It is this satisfaction which is material and sufficient for the purpose and that, once on consideration of the relevant material the State Government finds it to be a fit case for prosecution, then who should file the complaint is not of much importance. In Raj Kumar Gupta v. Lt. Governor, Delhi and Ors. (1997-I-LLJ- 994) in which this decision in hada's case (supra) also referred to with approval, the Supreme Court observed that, the provisions of Section 34 are in the nature of a limitation on the entitlement of a workman or a trade Union or an employer to complain of offences under the said Act and that, they should not, in the public interest, be permitted to make frivolous, vexatious or otherwise patently untenable complaints and to this end. Section 34 requires that no complaint shall be taken cognizance of unless it is made with the authorisation of the appropriate Government. ( 8 ) IN Niemla Textile Finishing Mitts Ltd. and Ors. v. The 2nd Punjab Tribunal and Ors. (1957-I-LLJ-460), the Supreme Court was considering the constitutional validity of Section 10 (1) of the Act. On a survey of the relevant provisions of the Act, the Supreme Court observed that, different authorities which are constituted under the Act are set up with different ends in view and are invested with powers and duties necessary for the achievement of the purposes for which they are set up and that the appropriate Government is invested with a discretion to choose one or the other of the authorities for the purpose of investigation and settlement of industrial disputes and whether it sets up one authority or the other for the achievement of the desired ends depends upon its appraisement of the situation as it obtains in a particular industry or establishment. Though the Supreme Court was referring to one or the other courses of adjudication of industrial dispute that the Government had the discretion to choose, its observation would be all the more relevant even on the question as to whether, where a particular infraction alleged against the management would amount to both an industrial dispute under section 2 (k) of the Act that could be adjudicated upon by an appropriate labour forum and an unfair labour practice, for which, prosecution needs to be launched, it is for the Government to apply its mind and to take a decision as to whether it should refer the dispute under Section 10 (1) of the Act or to file a complaint or permit filing of a compliant under Section 34 of the Act or to adopt both the courses. With reference to several courses one under Section 10 itself, the supreme Court, in the said decision, observed that, what step would be taken by the appropriate government in the matter of the industrial disputes must, therefore, be determined by the surrounding circumstances and the discretion vested in the appropriate Government for setting up one or the other of the authorities for the purposes of investigation and settlement of industrial disputes must be exercised by it having regard to the exigencies of the situation and the objects to be achieved. The Supreme Court pointed out that the basic idea underlying the purpose of the act is, the settlement of the industrial disputes and the promotion of industrial peace, so that production may not be interrupted and the community in general may be benefited. ( 9 ) IN F. K. Menzline v. B. P. Premakumar (1991-I-LLJ-55) with reference to the very Section 34 of the Act after referring to the observations of the Full Bench of this Court in Hada's case referred to earlier, a Division Bench of this Court held at the end of Paragraph-7 of the judgment that, the object of Section 34 of the Act is to avoid false and frivolous complaints and thereby save the party from harassment; that precisely for that reason the Government is required to apply its mind and determine the propriety of filing the complaint. The learned counsel for the 3rd respondent Employees Union Sri M. C. Narasimhan, with reference to this case of Menzlin, urges that, the Division Bench pointedly referred to the fact that the Division Bench felt that, it was open to the writ petitioners who were the accused, to contend before the Criminal Court that the sanction accorded was not in accordance with law and that the sanctioning authority had accorded sanction without application of mind. Sri M. C. Narasimhan submits that, even in the present cases the petitioner, would be at liberty to put forth their case before the learned magistrate even with regard to invalidity of the sanction order. The present case, however, needs to be distinguished for the reason that the petitioners had approached this Court even before the order under Section 34 at Annexure-C was acted upon, and its operation had been stayed, and therefore, no valid prosecution could be launched at all, since no cognizance could be taken in the absence of Annexure-C. Even otherwise, inspite of the said observations in Menzlin's case as to the writ petitioners being left to agitate their claim with regard to validity of the sanction order before the learned Magistrate himself, the very Division Bench in another case,. e. in V. Rama rao v. Commissioner of Labour (1991-I-LLJ-14) (Kant), even after taking note of its decision in the Menzlin 's case, held that the order granting sanction therein was not valid in law and hence, in a case like that, even applying the observations made by the said Division Bench in Menzlin's case, the interference was, nevertheless, called for. So concluding, the said Division Bench in rama Rao's case (supra), proceeded to quash the order under Section 34 of the Act. What is of importance in so far as Menzlin's case is concerned is that as already noted after referring to hada's case, the Division Bench in Menzlin's case observed that precisely for the reason to avoid false and frivolous complaints and thereby save the party from harassment, that the Government was required to apply its mind and determine the propriety of filing a complaint. ( 10 ) WHILE dealing with the aspect of according sanction for prosecution, the Supreme Court in mansukhlal's case referred above, observed in Paragraph-19 that, application of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority 'not to sanction' was taken away and it was compelled to act mechanically to sanction the prosecution. The Supreme Court further observed in this judgment that, if the authority in whom the discretion is vested under the statute, does not act independently and pass an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion, the supreme Court referred to an earlier decision of the supreme Court in U. P. Financial Corporation v. Gem Cap (India) Ltd, wherein Lord Dislock's observations had been extracted to the effect that, in the matter of administrative action, it is well known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have 'a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. They have 'a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. ' The Supreme Court then proceeded to observe that the high Court of Gujarat had assumed the role of sanctioning authority, considered the whole matter, formed an opinion that it was fit case in which sanction should be granted and because it itself could not grant sanction under Section 6 of the Prevention of Corruption Act, it directed the Secretary to sanction the prosecution, so that, the sanction order may be treated to be an order passed by the Secretary and not that of the High Court. The Supreme Court then observed that, that was a clear case where a brand name is changed to give a new colour to the package without changing the contents thereof. ( 11 ) IT is, thus, evident from the principles enunciated in the above said decisions that the decision under Section 34 of the Act has to be taken by the State Government and the duty of taking this decision cannot be usurped by any other authority. Once Government takes a decision to file a complaint, then, it is a different matter as to whether it files a complaint or under its authority, anybody else files a complaint. On the basic question as to whether prosecution should be launched, it is the State Government and the State Government alone that has to take a decision. That decision has to be reached on application of mind to the material placed before it. As observed by the Supreme Court in NTF Mills case referred to earlier with reference to several options for resolving an industrial dispute, the basic idea underlying the provisions of the Act is the settlement of industrial disputes and the promotion of industrial peace so that production may not be interrupted and the community in general may be benefited. As observed by the Supreme Court in NTF Mills case referred to earlier with reference to several options for resolving an industrial dispute, the basic idea underlying the provisions of the Act is the settlement of industrial disputes and the promotion of industrial peace so that production may not be interrupted and the community in general may be benefited. This is the end which has got to be kept in view by the State Government even while deciding as to whether apart from there being a case of unfair labour practice having been indulged in by the management, where it also amounts to an industrial dispute within the meaning of Section 2 (k) of the Act, whether it should choose the course of referring the dispute under Section 10 (1) of the Act, or should resort to prosecution under Section 34 or to follow both the courses of action. It is in this context that, apart from a case of unfair labour practice having been made out on the material available, the propriety of launching prosecution under Section 34 also needs to be borne in mind. It is the state Government that is given the responsibility of taking a decision in this regard. No doubt, the Labour Commissioner also is within his limits when he furnished his opinion in the matter. But, the State Government acted as though it is bound to accept the conclusions reached by the labour Commissioner, and without independent application of mind, and has simply accorded sanctions recommended by the Labour Commissioner. It was thus a case of the Labour commissioner assuming the role of the State Government considering the whole matter, forming an opinion that it was a fit case in which sanction should be granted under Section 34 of the Act and then, because he himself could not grant sanction under Section 34, he recommended to the state Government to sanction the prosecution so that the sanction could be regarded as the one accorded by the State Government under Section 34 of the Act and not by the Labour commissioner. In the words of the Supreme Court in the said Mansukhlal's case (supra), this also is a classic case, where a brand name is changed to give a new colour to the package without changing the contents thereof. In the words of the Supreme Court in the said Mansukhlal's case (supra), this also is a classic case, where a brand name is changed to give a new colour to the package without changing the contents thereof. ( 12 ) THE order under Section 34 of the Act at Annexure-C having been passed by the 1st respondent Slate Government without application of mind, same cannot be legally sustained. ( 13 ) THE order under Section 34 of the Act at Annexure-C is quashed. The learned J. M. F. C. , doddaballapur is prohibited from proceeding with C. C. No. 789/1996 on his file, since, in the absence of Annexure-C, he could not have taken cognizance of the offences concerned therein and on the date he purportedly took cognizance, Annexure-C had stood stayed by this Court. The matter is remitted to the 1st respondent-State Government to take a fresh decision under section 34 of the Act on application of mind and in accordance with law. Writ Petitions allowed accordingly.