Karnataka High Court
Mysore Cements Ltd. And Anr. vs Assistant Labour Commissioner on 8 February, 2002
Equivalent citations: (2003)ILLJ530KANT, 2002 CRI LJ (NOC) 308, 2002 AIR - KANT. H. C. R. 2215, (2002) 4 LAB LN 596, (2003) 1 LABLJ 530, (2003) 2 SCT 807
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
JUDGMENT V. Gopala Gowda, J.
1. The petitioners have filed these writ petitions seeking for issuance of a writ of certiorari holding that the entire proceedings initiated by the respondent as against the petitioner before the Hon'ble Judicial Magistrate First Class, Turuvekere, in C.C. No. 523 of 2000 is void ab initio, without jurisdiction and illegal and consequently to quash the above said proceedings, i. e., taking cognizance of the offence and have further sought for dismissing the complaint filed by the respondent as per Annexure E urging various grounds.
2. The first petitioner/company represented by its Managing Director and the second petitioner is the Director-Finance of the first petitioner-company have questioned the authority of the respondent in filing the complaint against them under Section 200, Cr.P.C. read with Section 29 of Payment of Bonus Act, 1965 (in short PB Act) for the alleged violation of the provisions of Sections 2(1)(iii)(a), 4(b), 6(d), 15 and 16, 19, 11, Rules 4(a), 4(b) and 4(c) of the P.B. Act, 1965 and the Payment of Bonus Rules, 1975 (for short, PB Rules).
3. The necessary brief facts of the case are stated as hereunder for the purpose of considering the rival contentions urged on behalf of the parties.
The respondent issued show-cause notice to the second petitioner, dated May 15, 2000, referring to the Inspection Report No. 65/1999 D9, dated December 1, 1999, wherein certain irregularities were pointed out under the provisions of the P. B. Act and the P.B. Rules during the course of inspection of the company on December 1, 1999 and to submit their explanation within ten days from the date of receipt of the notice as to why legal action should not be initiated against them for the lapses noted in the inspection report referred to above. Petitioners submitted their reply, dated February 25, 2000, stating that they have not contravened the statutory provisions as alleged and as such no legal action is required to be initiated against them. One more reply was submitted, by the General Manager (Personal) of the first petitioner to the respondent explaining the various facts, stating that they have not violated any one of the provisions of the P.B. Act and the P.B. Rules and further requested the respondent to drop the further action as contemplated by him against the petitioners. The respondent filed the complaint before the Judicial Magistrate, First Class, Turuvekere, in exercise of his purported authority under Section 30 of the Payment of Bonus Act, 1965. Hence, these writ petitions are filed.
4. Sri. Vijayashankar, learned senior counsel appearing on behalf of the learned counsel for petitioners submits that the respondent has no authority under the appropriate Government namely Central Government to file the complaint against petitioners for the alleged contravention of the provisions of the Payment of Bonus Act and Rules and as such the learned Magistrate should not have taken cognizance of the alleged statutory offences and issued process to them calling upon them to appear in the criminal cases pending before them; that the action of the respondent is in contravention of the provisions of the Industrial Disputes Act as there was a settlement between the first petitioner/company and its workmen; that the representatives of the parties have affixed their signatures on the memorandum of settlement which is binding on them and that the said settlement is in relation to the bonus payable under the Payment of Bonus Act to its employees.
5. Learned senior counsel has further submitted that Section 30 of the P.B. Act confers power upon either the appropriate Government or under the authority of the appropriate Government or an officer of that Government not below the rank of a Regional Labour Commissioner in the case of an officer of the Central Government and not below, the rank of a Labour Commissioner in the case of an officer of the State Government specially authorised in this behalf by that Government to file the complaint against the petitioners. In support of his submission he has placed reliance upon the decision of the Supreme Court reported in Ballabhdas Agarwala v. J. C. Chakravarathy, wherein the Apex Court considering the relevant provisions of Sections 537 and 12 of the repealed Calcutta Municipalities Act, 1923, and placing reliance upon the Privy Council judgment reported in Nazir Ahmed v. King Emperor, AIR 1936P.C. 253 at page 257 has held as follows:
"Where power is given to do certain thing in a certain way, the thing must be done in that way or not at all."
The above said principle has been reiterated, by the Supreme Court in the cases reported in Mangula Chunilal v. Manilal Maganlal, . He therefore submitted that the complaint submitted by the respondent against the petitioners is without authority of law and it is an incurable defect and that it is an irregularity for the reason that the person who has no authority has filed the complaint thereby the petitioners have been subjected to the penal action to appear before the Magistrate Court and face criminal trial which affects the liberty and freedom guaranteed to them under Articles 19 and 20 of the Constitution of India and as such the proceedings initiated by the respondent before the JMFC is liable to be quashed. He has also placed strong reliance upon the judgment in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, in support of the proposition that the High Court can exercise its power of judicial review in criminal matters under Articles 226 and 227 of the Constitution of India, nomenclature under which the petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed in the statutory enactment which procedure is mandatory.
6. Sri Dwarakanath Abakari, learned Additional Central Government Standing Counsel appearing on behalf of the respondent, however, sought to justify the proceedings initiated by the respondent placing reliance upon the order of the Labour Commissioner dated November 16, 2000, wherein he has delegated his power to the respondent to prosecute the petitioners as he was duly authorised by the appropriate Central Government vide its notification, dated December 4, 1987, issued by the Director in exercise of the power under Section 30 of the P.B. Act and as such the complaint filed by the respondent against the petitioners is based on valid delegation of power by the Regional Labour Commissioner who had the authority under the notification referred to supra and as such he would submit that this is not a fit case for this Court to interfere with the case and to quash the proceedings pending before the JMFC.
7. The learned Additional CGSC has also placed reliance upon the judgment of the Supreme Court reported in AIR 1982 SC 206 (sic) in support of his case wherein the Apex Court has held, that whether the statutory provisions of the Act are contravened or not, whether that would amount to statutory offence or not is the question of fact required to be urged before the learned Magistrate before whom criminal proceedings are pending and as such he has submitted that the petitioners cannot challenge the proceedings pending before the JMFC and that this Court cannot interfere with the said proceedings at this stage in exercise of its extraordinary and discretionary power under Articles 226 and 227 of the Constitution of India. He has also placed reliance upon the judgment of the Supreme Court in support of his submissions.
8. After hearing the learned counsel for the parties, the following question would arise for consideration and to answer the same by this Court:
"Whether the complaint filed by the respondent is competent under Section 30 of the Payment of Bonus Act, 1965?"
9. The learned Additional Standing Counsel of the Central Government has placed reliance upon the notification, dated December 4, 1987, in support of the case of the respondent contending that he has got the authority to present the complaint against the petitioners before the learned First Class Magistrate, Turuvekere.
10. To answer the question framed above with reference to the rival contentions urged by the learned counsel for the parties, the relevant portion of the notification referred to supra upon which reliance is placed by the respondents counsel is extracted as hereunder:
"IV Regional Labour - Whole of (Central), Bangalore, Karnataka State."
The said notification is issued by the Director, Government of India, Bharat Sarkar, Ministry of Labour/Shram Mantralaya. Section 30 of the P.B. Act provides that the complaint has to be filed either by the appropriate Government or under the authority of the appropriate Government or an officer of that Government not below the rank of the Regional Labour Commissioner, in the case of an Officer of the Central Government and not below the rank of the Labour Commissioner in the case of an Officer of the State Government specially authorised in this behalf "by the Government". The appropriate Government in the instant case is the Central Government. Article 77(2) of the Constitution of India enables the President of India to frame Business Transaction Rules for transacting the business by and on behalf of the Government for the conduct of its business. The learned Additional Standing Counsel is unable to produce Business Transaction Rules and the relevant records to show that the aforesaid notification is issued in the name of the Government of India, Ministry of Labour, the Director who has signed the said notification represented the Government of India and is competent to issue and sign the said notification. Further, it is the case of the respondent that the power which has been conferred upon the Regional Labour Commissioner pursuant to the notification, dated August 4, 1987, he has redelegated his power to the respondent to file complaint in the Court of competent jurisdiction against the petitioners for the alleged offences punishable under Section 28 of the Payment of Bonus Act, 1965. Section 30 of the P.B. Act, 1965, clearly contemplates that the complaint can be filed by anyone of the persons mentioned in the said section. In the instant case, on the basis of the notification, dated December 4, 1987, the Government of India is purported to have conferred that power upon the Regional Labour Commissioner (Central), Bangalore. It is a well established principle of law laid down by the Supreme Court in the case reported in Barium Chemicals Ltd. v. Company Law Board, wherein the Apex Court at Paras 19 and 20 interpreting the provisions of Sections 637, 237 and 10(E)(I) of the Companies Act, 1956 read with Rule 3 of Company Law Board (Procedure) Rules, 1964, has clearly held that the power under Section 237 delegated by the Central Company Law Board shall be exercised by the Director on behalf of the Board, but he shall not redelegate the said power to his delegate. Similar view has been taken by the Supreme Court in the case of State of Bombay (now Maharashtra) v. Shivabalak Gaurishankar Dube, , wherein it is held there is no doubt that a delegate who has received the authority from the principal cannot in turn, delegate his own authority to a delegatee of his own, but there is hardly any question of delegation by a delegatee in the present case.
11. The learned senior counsel Sri Vijayshankar has rightly placed reliance upon the said decisions in support of the proposition, that the Assistant Labour Commissioner who is claiming that he has got the authority to file the complaint under notification and the order referred to supra as the Regional Labour Commissioner has redelegated his power to him, has no power to redelegate his power to the respondent. Therefore, it is urged that the complaint filed by him against the petitioners is without authority of law under Section 30 of the P.B. Act and as such the Regional Labour Commissioner should not have redelegated his power in favour of the respondent as the delegatee cannot redelegate his power as the claim of the Regional Labour Commissioner is that the appropriate Central Government represented by its Directors has given the authority to him in exercise of its power under Section 30 of the P.B. Act, 1965. In view of the contentions urged on behalf of the respondent, it is necessary for this Court to make an observation that by a perusal of the notification produced by the learned Additional CGSC, it does not disclose as to whether the Central Government has issued the said notification in terms of the Business Transaction Rules framed by the President of India in exercise of his power under Article 77(2) of the Constitution of India. Further, the order, dated November 16, 2000, produced by the respondent delegating the power of the Regional Labour Commissioner, Bangalore to the respondent to prosecute the persons for the statutory offences under the provisions of the P.B. Act is once again without Authority of law for the reason that the Regional Labour Commissioner, Bangalore, claiming to be the delegatee of the Central Government pursuant to the notification shall not redelegate his authority to the respondent who will be redelegatee.
12. Further, the learned senior counsel has also rightly placed reliance upon another judgment of the Apex Court reported in AIR 1951 SC 332 to show that the respondent has no authority to present the complaint and prosecute the same against the petitioners as he is not the competent authority in terms of Section 30 of the P.B. Act, wherein the seven-Judges Bench of the Supreme Court with reference to Article 143, Constitution of India and Delhi Laws Act (1912) have succintly laid down the law regarding doctrine in support of anti- delegation rule at Para 217 as hereunder:
"217. The other doctrine that is involved in support of the anti-delegation rule is the well accepted principle of Municipal law, which prevents a person upon whom a power has been conferred, or to whom a mandate has been given, from delegating his powers to other people. The Legislature is supposed to be a delegate deriving its powers from the 'people', who are the ultimate repository of all powers, and hence, it is considered incapable of transferring such powers to any other authority."
13. The learned senior counsel has rightly placed reliance upon the judgment of the Supreme Court , 30 and 32 wherein the Supreme Court placing reliance upon the judgment of the Privy Council in the case of Nazir Ahmed v. King Emperor, AIR 1936 PC 253(2), has succinctly laid down the law holding that if a power is given to do certain thing, the thing must be done in that way or not all, the relevant portion is extracted as hereunder:
"19. On behalf of the appellant it has been urged before us that the provisions of Section 537 are obligatory, and the principle invoked in aid of this construction is that adopted by the Privy Council in Nazir Ahmed v. King Emperor AIR 1936 PC 253(2) via that where a power is given to do certain thing in a certain way, the thing must be done in that way or not at all. In other words, the argument of the learned counsel for the appellant is that the word 'must' must necessarily be read for the word 'may' in Section 537, but that if a legal proceeding is to be instituted under the Municipal Act in question, it must be done in accordance with the provisions of the Act and not otherwise. On behalf of the respondent, however, the contention is that Section 537 is merely enabling in nature, as the use of the word may' shows, and the general principle embodied in the Code of Criminal Procedure of taking cognizance of an offence on a complaint by even a private person is not in any way affected by Section 537."
30. If anyone may enforce the Act, Section 11 is useless. I do not think that negative words are required to exclude proceedings by persons other than seafishery officers. For instance, if an Act provided that the Attorney General was to sue for a penalty, no one else could sue for it; it is obvious that if everyone could sue for the penalty, the Attorney General could sue for it, so that on that view of the statute the clause enabling him to sue would be unnecessary and useless.
31. On a parity of reasoning, if anybody can institute a legal proceedings under the Calcutta Municipal Act, Section 537 thereof becomes particularly useless. Even without that section, the municipality could do the acts specified therein, and it is difficult to understand the necessity of a provision like Section 537 unless the intention was to confer a power on the municipality which power must be exercised in accordance with the provisions of the Act and not otherwise.
32. It was faintly suggested that the absence of a complaint by the Commissioners or the Chairman of a duly delegated authority was a mere error of irregularity which could be cured under Section 537, Criminal Procedure Code. Our attention was also drawn to Section 79 of the Calcutta Municipal Act, 1923. In the view which we have taken the absence of a proper complaint was not a mere defect or irregularity, it affected jurisdiction and initiation of proceedings."
14. Same view has been reiterated in the subsequent decisions of the Supreme Court , (supra), Mangulal Chunilal v. Manilal at Para. 10 and another case reported in Babu Verghese v. Bar Council of Kerala, the Supreme Court in this case after interpreting the provisions of Advocates Act, 1961 and following its earlier judgments of the Apex Court Chancellor decision and Privy Council judgment in Taylor v. Taylor 1875 (1) Ch.D. 426, Nazir Ahmed v King Emperor (supra), respectively at Paras. 31 and 32 law has been succinctly laid down as hereunder:
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by LORD ROCHE in Nazir Ahmed v. King Emperor who stated as under:
'Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.'
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh and again in Deep Chand v. State of Rajasthan . These cases were considered by a three-Judge Bench of this Court in State of Uttar Pradesh v. Singhara Singh . This rule has since been applied to the exercise of jurisdiction by Courts and has also been recognised as a salutary principle of administrative law."
15. In view of the law laid down by the Supreme Court in the catena of cases referred to (supra) upon which the learned senior counsel has rightly placed reliance in support of the case of the petitioners and considering the material documents produced by the learned Additional CGSC, I have to record the finding that the respondent has no authority for filing complaint and prosecuting petitioners for the alleged contravention of statutory provisions. The appropriate Government, i.e., Central Government has not given authority to the respondent to prosecute the petitioners for the alleged contravention of the provisions of Section 23 or Section 29 of the Payment of Bonus Act, 1965 and as such the question framed by this Court shall be answered in favour of the petitioners and accordingly answered.
16. The contention urged on behalf of the respondent placing reliance upon the judgments of the Supreme Court are not applicable to the facts of the present case, for the reason that the relevant portion of the notification which is extracted in this order, and the order dated November 16, 2000, produced in this case by the learned Additional Central Government Advocate would go to show that the respondent has no authority under Section 30 of the P.B. Act, 1965, to file complaint and prosecute the same against the petitioner for the alleged contravention of the statutory provisions under the P.B. Act and as such the decisions referred to above upon which reliance is placed by him are misplaced as they are not applicable to the facts of this Court and that therefore, the contention urged in this regard by him is liable to be rejected and accordingly, rejected.
17. For the reasons stated (supra), these writ petitions are allowed. Rule made absolute. The proceedings before the learned JMFC, First Class, Turuvekere in C.C. No. 523 of 2000 are hereby quashed. However, liberty is given to the appropriate Government Or under its authority as provided under Section 30 of the PB Act to prosecute the petitioners if the appropriate Government or its authority deems fit to initiate such proceedings, the same may be done after giving opportunity to the petitioners.