Madhya Pradesh High Court
Afraz Khan vs The State Of M.P. on 11 April, 2019
1 WP-5891-2007
HIGH COURT OF MADHYA PRADESH
WP-5891-2007
(Afraz Khan Vs. State of M.P. & others)
Gwalior, Dated : 11/04/2019
Shri Vivek Jain, counsel for the petitioner.
Shri A.V. Bhardwaj, Government Advocate for the respondent
No. 1/State.
This petition under Article 226 of the Constitution of India has been filed seeking the following relief:-
"(i) That, the impugned orders Annexure P/1 may kindly be set aside and the learned Labour Court may be directed to proceed without requiring sanction.
(ii) in case sanction is required, mandamus may be issued to the State to decide the application for sanction of prosecution and till that time, the learned Labour Court may be directed to keep the matter in abeyance.
(iii) any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case may also be granted, and,
(iv) costs of the case may also be awarded."
It is submitted by the counsel for the petitioner that since the respondent had not complied the order passed by the Labour Court, therefore, an application under Section 91 of M.P. Industrial Relations Act, 1960 (in short "MPIR Act") was filed. The Labour Court by order dated 31.07.2007 had granted time to the petitioner to obtain sanction for prosecution in the light of the notification dated 17.04.2007. Thereafter the petitioner has applied for the sanction but no order has been passed so far. It is further submitted that by order 2 WP-5891-2007 dated 23.10.2007 Labour Court had granted a last opportunity to produce the sanction. Accordingly, the petitioner has challenged the said order and this Court by order dated 14.12.2007 has passed an interim relief and has directed that the "Labour Court shall not dismiss the case during the pendency of this petition". It is submitted by the counsel for the petitioner that amended Section 63 of MPIR Act would not include the offence punishable under Section 91 of MPIR Act because it was committed by the employer by not implementing the order of the Labour Court as required under Section 35 of MPIR Act.
Heard the learned counsel for the parties. Section 63 of MPIR Act reads as under:-
"[63. Cognizance of offence. - No Court shall take cognizance of any offence punishable under this Act, except on a complaint in writing made by (he person affected thereby or the representative of employees or the employer or on a report in writing of the Labour Officer.]"
Provided that if an offence punishable under the Act has been committed by a public servant while acting or purporting to Act in the discharge of his official duty, then no Court shall take cognizance of such offence except with the previous sanction of the State Government.
Provide further that if cognizance of such offence has already been taken by the Court, then no Court shall proceed further except with the previous sanction of the State Government."
Thus, it is clear that no Court shall take cognizance of any offence punishable under the Act, which has been committed by the public servant while acting or purporting to Act in the discharge of 3 WP-5891-2007 his official duty except with the previous sanction of the State Government.
It is submitted by the counsel for the petitioner that offence under Section 91 of MPIR Act is not an offence but it is a violation of the order of the Labour Court.
The submission made by the counsel for the petitioner cannot be accepted.
Section 91 of MPIR Act reads as under:-
"91. Penalty for illegal change. - (1) Any employer who makes an illegal change shall, on conviction, be punishable with fine which may extend to five thousand rupees.
(2) Any employer who contravenes the provisions of Section 35 shall, on conviction, be punishable with imprisonment which may extend to three months or for every day on which the contravention continues with fine which may extend to five thousand rupees or with both.
(3) The Court convicting any person under sub-section (1) or (2) may direct such person to pay such compensation as it may determine to any employee directly and adversely affected by the change in issue."
Under Section 91 of the MPIR Act, if any employer contravenes the provisions of Section 35 shall, on conviction, be punishable with imprisonment which may extend to three months or for every day on which the contravention continues with fine which may extend to five thousand rupee or with both. Thus, the penalty for illegal change has been made punishable with jail sentence and fine. Accordingly, it is an offence punishable under this Act and thus, proviso of Section 63 of MPIR Act would apply and, therefore, the 4 WP-5891-2007 Labour Court had rightly directed the petitioner to obtain the sanction for prosecution.
It is next contended by the counsel for the petitioner that his application for grant of sanction is pending and the same has not been decided so far.
It appears that the petitioner on 21.04.2007 had sent a letter to the Principal Secretary, Law Department for grant of sanction. As that application was made in the year 2007 and it is not known that whether the said application is still available in the office of Principal Secretary of law or not, therefore, it is directed that in case, if petitioner files a fresh application along with certified copy of this order as well as copy of the application dated 21.04.2007 within a month from today and prays for grant of sanction for prosecution under Section 63 of MPIR Act to prosecute the respondents, then the competent authority shall decide the said application within a period of six months from the date of receipt of the same.
With aforesaid observation, this petition is finally disposed of.
(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2019.04.15 17:34:28 +05'30'