Judgment :- (This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, with a prayer to: quash the order dt. 5.4.2006 vide Annex.M to the writ petition passed by the first respondent Labour Commissioner). The petitioner has called in question the order dated 05.4.2006 which is impugned at Annexure M to the petition. By the said order, the first respondent herein has permitted the prosecution of the petitioner management on the allegation that the terms of the settlement dated 30.10.1999 has been violated. 1. 2. Heard Sri. S.N. Murthy, learned senior counsel for the petitioner, Sri. Jagdish Mundargi, learned Government Advocate for respondent No.1 and Smt. Suguna Reddy, learned counsel for the respondent No.2 and perused the writ papers. .3. The brief facts leading to the present petition are that the petitioner management and its workmen represented through union had entered into a memorandum of settlement dated 30.10.1999 in terms of Section 12(3) read with Section 18(3) of the Industrial Disputes Act, 1947 (hereinafter referred to .as ‘Act’ for short). Among other matters settled between the parties, the payment of production linked amount, piece rate incentive and additional incentive was also agreed upon. It is in this regard the second respondent filed a complaint before the first respondent alleging violation of the terms of settlement insofar as the said incentives to be paid. It was alleged that the management is outsourcing the job and this has reduced the payment of the said incentives to the workmen. The office of the first respondent therefore issued show cause notice dated 19.1.2005 to the petitioner management. The petitioner management has replied the same and furnished details vide their communication dated 2.2.2005, 24.3.2005 and 15.6.2005. Pursuant thereto certain meetings were also conducted by the Assistant Labour Commissioner and as indicated in the impugned order, on the subsequent dates the petitioners are said to have absented themselves. Ultimately, the first respondent has passed the impugned order dated 5.4.2006 and accorded sanction for prosecution. 2. 4. The learnedsenior counsel while assailing the said order would contend that firstly the hearing was conducted by the Assistant Labour Commissioner but the ultimate order is passed by the first respondent herein and as such even the details furnished and put forth has not been considered appropriately. 2. 4. The learnedsenior counsel while assailing the said order would contend that firstly the hearing was conducted by the Assistant Labour Commissioner but the ultimate order is passed by the first respondent herein and as such even the details furnished and put forth has not been considered appropriately. Even otherwise, the facts in the present case disclose that the claim of the second respondent is that the said incentives have not been paid. As against this, the reply of the management is not in the nature of justifying the non-payment or stating that it need not be paid. On the other hand, the specific contention has been that the incentives payable has been paid and details of such payment has also been furnished. Hence, it is contended that if at all there was any disagreement with regard to the extent of payment, it can only be an industrial dispute which would have to be adjudicated before the appropriate forum and it cannot be a matter for permitting prosecution in a casual manner. The learned counsel places reliance on the judgment of the Hon’ble Supreme Court in the case of M/s. Pepsi Foods Ltd & Another vs. Special Judicial Magistrate and ors (JT 1997 (8) SC 705), to contend with regard to the care that is to be taken before permitting prosecution. .5. On the other hand, the learned Government Advocate as well as the learned counsel for the second respondent sought to justify the order passed by the first respondent. On behalf of the second respondent it is contended that it was the specific complaint of the second respondent that the incentives had not been paid and reference was made to the kind of products that were being manufactured to contend that the work which was to be done by the employees of the petitioner was being outsourced. In this regard, the learned counsel would refer to the objection statement and the Annexures which are produced along with the same, more particularly, Annexure R.1, R.4, R.5 and R6 to indicate the nature of the complaint and the terms of settlement as also the violations indicated therein. It is contended that despite opportunity being provided the petitioner failed to avail the same before the authority and as such the authority had considered the materials before it and was of the view that the terms of the settlement has been violated. It is contended that despite opportunity being provided the petitioner failed to avail the same before the authority and as such the authority had considered the materials before it and was of the view that the terms of the settlement has been violated. In that view of the matter, the first respondent has rightly accorded sanction for prosecution. If at all the petitioner has any contentions .to put forth it is still open for them to urge before the jurisdictional Magistrate and the order impugned does not call for interference. The learned counsel for the second respondent has also placed reliance on the judgment of the Hon’ble Supreme Court in the case of M/s Mysore Structurals Ltd & Ors Vs. State of Karnataka and ors ( AIR 2002 SC 53 ) and a decision of this Court in the case of Karnataka Couriers Cargo and General Employees Union Vs. State of Karnataka Rep By its Secretary and ors (ILR 2002 Kar 1016). 3. 6. In the light of the contentions urged on behalf of the parties, it is seen that a settlement dated 30.10.1999 having been entered into between the petitioner and the first respondent and the terms contained therein is not in dispute. The question however is as to whether the complaint made by the second respondent before the first respondent seeking for sanction to prosecute has been considered in the appropriate manner keeping in view the intent of Section 34 of the Act and as to whether the same requires intervention of this Court. .7. No doubt, as pointed out by the learned counsel for the second respondent from the order sheet which has been produced as Annexure R.7, it would indicate that during the last few sitting the management representative was not present before the authority. However, it is not in dispute that the petitioner had responded to the notice and their version had been filed before the authority as per Annexures F, G and H to this petition. It is in this background, the order of the authority requires to be noticed as to whether the matter has been considered in its correct perspective. However, it is not in dispute that the petitioner had responded to the notice and their version had been filed before the authority as per Annexures F, G and H to this petition. It is in this background, the order of the authority requires to be noticed as to whether the matter has been considered in its correct perspective. The learned senior counsel for the petitioner while pointing out that the impugned order has been passed in a casual manner has referred to the observations made by the Hon’ble supreme Court in the Pepsi Foods’ case wherein it is stated that even in respect of cognizance being taken by a learned Magistrate, the same would have to indicate application of mind since in the words of the Hon’ble Supreme Court the summoning of an accused in a criminal case is a serious matter and criminal law cannot be set in motion as a matter of course. The Hon’ble Supreme Court has also indicated that even though the Magistrate can discharge the accused at any stage, it does not mean that the accused cannot approach the High Court. Though the learned counsel for the second respondent has relied on the decision of the learned Single Judge of this Court in Karnataka Couriers Cargo case to state that in the said case the decision in M/S. Pepsi Foods case was noticed and this Court had taken a view that it would be open for the employer to putforth his contention in the criminal proceedings, I am of the view that the fact situation in the present case is not similar. In the said case, the question which was being considered by this Court was with regard to violation of a statutory provision inasmuch as the management had not complied with the statutory requirement under Section 33(2)(b) of the I.D. Act and that was evident, on the face of it and in that context had held that the Government had not exercised the power available under Section 34 of the Act. As such it was also stated that the defence, if any, to assail the sanction was to be taken before the learned Magistrate, but what cannot be ignored is that the learned Single Judge had also noticed the decision of a Full Bench of this Court in the case of S.N. Hada and Ors Vs. As such it was also stated that the defence, if any, to assail the sanction was to be taken before the learned Magistrate, but what cannot be ignored is that the learned Single Judge had also noticed the decision of a Full Bench of this Court in the case of S.N. Hada and Ors Vs. the Binny Ltd Staff .Association (1988 – I – LLJ 405) wherein the scope of Section 34 of the Act was considered. It has been explained therein that the intent of the legislature in enacting the said provision is to save the party against whom the complaint is to be filed, from harassment, and it is for that reason, the Government is required to apply its mind and determine the propriety of filing the complaint. It is further stated that the phrase ‘under the authority of the appropriate Government’ implies a sanction by Government after it has considered the desirability, hence if such a provision had not been enacted, there could be every likelihood of filing of frivolous complaints indiscriminately. In my view, the said observations are also to be borne in mind by the Labour Commissioner as well as this Court while entertaining a petition under Articles 226 and 227 of the Constitution of India. Further in the case of Management of Mysore Structurals Ltd relied on by the learned counsel for the second respondent, the allegation was with regard to the non-implementation of the award which had been passed by the Labour Court directing reinstatement with continuity of service and backwages. The defence therein was not that it had been implemented but the management had contended that the implementation of the award had become impossible in view of the closure of the company. It is in that context the question as to whether the management were in a position or whether it was impossible for them to grant the relief was to be considered in trial. 4. 8. In contradistinction to the said facts, in the instant case, the case of the petitioner herein is not one attempting to justify their non-compliance of the settlement but a specific case has been put forth that they have adhered to the settlement and certain details are furnished in this regard before the authority. 4. 8. In contradistinction to the said facts, in the instant case, the case of the petitioner herein is not one attempting to justify their non-compliance of the settlement but a specific case has been put forth that they have adhered to the settlement and certain details are furnished in this regard before the authority. Further, in the instant case the question is with regard to the payment of incentives which are relatable and linked to the production based on piece rate. Therefore, the details of the production and the incentives paid after the period of the settlement with reference to the work provided, production made and the work turned out by the employees would be a matter for consideration by the Labour Commissioner in the light of the complaint, to enter upon a subjective satisfaction as to whether there was violation of terms of settlement and as to whether sanction should be accorded for prosecution. At this juncture, it would be useful to notice the decision of a division Bench of this Court in the case of V. Rama Rao Vs. commissioner of Labour (1991 – I- LLJ 14) wherein it is held that the authority according sanction is required to decide if there is a genuine dispute between the parties as to the term was of the settlement for the violation of which sanction for prosecution is sought. It is further held that the authority must take care to see and must satisfy itself that the dispute as to the terms of settlement is genuine. That apart, the legal position that the order itself should articulate such consideration and in the absence of the same, it cannot be filled in by way of objection statement or affidavit is well settled and it need not be restated with reference to authorities. Hence, the attempt of the learned counsel for the second respondent to justify the order with reference to the objection statement would be of no avail. .9. In this backdrop, a perusal of the impugned order dated 05.04.2006 would indicate that except for noticing the contention of the second respondent herein and accepting the same, there is no .indication for arriving at a subjective satisfaction. The first respondent has proceeded only by stating that the petitioner herein has not made appropriate reply and have remained absent. .9. In this backdrop, a perusal of the impugned order dated 05.04.2006 would indicate that except for noticing the contention of the second respondent herein and accepting the same, there is no .indication for arriving at a subjective satisfaction. The first respondent has proceeded only by stating that the petitioner herein has not made appropriate reply and have remained absent. In fact as noticed above, the petitioner had replied furnishing details of the production and the incentives paid and there is not even an analysis of the same to indicate subjective satisfaction. That apart, the objection statement filed in this petition on behalf of the first respondent would admit the position that the process of notice and hearing was made by the Assistant Labour Commissioner but the ultimate order to grant permission to prosecute has been passed by the first respondent – Labour Commissioner as delegated by the Government vide notification dated 08.02.1967. Hence, in my view, such procedure adapted in sub-delegating to the Assistant Labour Commissioner upto the procedure of hearing and then the Labour Commissioner ultimately passing the impugned order would not only vitiate the order, but would violate the principles of natural justice. In such event, even though the petitioner was absent, the ultimate order is not by the authority who had held the proceedings and as such more than the default, the order should be construed as one without providing opportunity of hearing. In such circumstance, the matter will require reconsideration by the first respondent and as such, I do not deem it necessary to advert to the merits of the rival claims with regard to quantum of production year after year, absence of the employees during the period, right to outsource which existed even prior to settlement and the amount of incentive paid, as these are matters to be urged before the Labour Commissioner. 5. 10. Hence, for all the above said reasons, the order dated 05.04.2006 in its present form cannot be sustained. The same is accordingly quashed. The matter shall stand remitted to the first respondent/Labour Commissioner for reconsideration afresh after providing opportunity to the parties. All contentions of the parties are left open. The parties shall appear before the first respondent on 05.01.2009 as the first date of appearance without further notice. The further proceedings shall be regulated by the first respondent. The matter shall stand remitted to the first respondent/Labour Commissioner for reconsideration afresh after providing opportunity to the parties. All contentions of the parties are left open. The parties shall appear before the first respondent on 05.01.2009 as the first date of appearance without further notice. The further proceedings shall be regulated by the first respondent. The petition is accordingly disposed of with no order as to costs.