M.M. Wagh, Bombay vs State of Maharashtra and Another

The petitioner who is the Secretary of the Anglo French Drug Company (Eastern) Ltd. having office in Bombay, challenges the order of issue of process, passed by the learned Metropolitan Magistrate, Dadar, Bombay, in Criminal Case No. 1004/S of 1986, on a complaint filed by Shri Y. D. Nikam, Asst. Commissioner of Labour, Commerce Center, Tardeo, Bombay. The complaint was for violation of the provisions of Section 33(1) of the Industrial Disputes Act, 1947.

The complaint in his complaint stated that he has been authorised to make a complaint by the Government of Maharashtra in Industries, Energy and Labour Department, Bombay, being the appropriate authority, by its order dated March 6, 1986 as contemplated by the provisions of sub-section (1) of Section 34 of the Industrial Disputes Act, 1947.

He stated that the accused, who is the petitioner in this case, is the Secretary of the Company viz., Anglo French Drug company (Eastern) Ltd. which is a Public Limited Company manufacturing pharmaceutical and fine chemical products. The Company has a factory at Bangalore and its registered office and distribution office including stores are situated at Jerbai Wadia Road, Parel, Bombay. The workmen employed at Bangalore and Bombay are represented by Roche Anglo-French Employees'' Union led by Shri K. K. Nariman.

A complaint came to be received from the Union, and thereafter the parties were called for discussion before the Deputy Commissioner of Labour and the Commissioner of several occasions, but, according to the complaint, due to adamant stand especially taken by the management, no settlement could be reached. Therefore, the dispute pertaining to withdrawal of transfer orders passed by the management were admitted in conciliation on February 28, 1985 and November 3, 1985 respectively in the presence of both the parties. It may be stated at this stage that the Company wanted to close down its establishment consisting of 95 employees in Bombay and transfer the employees to its establishment at Bangalore. Notices were accordingly given to the employees and it is because of this that the dispute between the management and the employees arose which came to be referred to the conciliation.

The complainant''s complaint was that during the pendency of the conciliation proceedings, the management gave a notice dated April 6, 1985 purporting to be a notice of closure under the provisions contained in Sec. 25-FFA of the Industrial Disputes Act, 1947, stating that the establishment of the Company situate at Lower Parel, Bombay, would be closed and accordingly effected closure with effect from June 14, 1985, It is, therefore, contended that the management has contravened the provisions of Section 33(1) of the Industrial Disputes Act, 1947 read with Section 31 of the said Act. The management has effected closure on June 14, 1985 thereby altering the conditions of service applicable to the workmen without obtaining express permission in writing of the authority before which the proceedings were pending.

It is for this reason that the complainant stated that an offence punishable u/s 22(1) of the Industrial Disputes Act having been committed, the accused be dealt with according to law. The complainant produced along with the complainant, the order issued by the Desk Officer, Industries, Energy and Labour Department on March 6, 1986 authorising the complainant Shri Nikam, Asst. Commissioner of Labour, Bombay, to make a complaint against the accused for committing the breach of sub-section (1) of Section 33 which was an offence punishable under sub-section (1) of Section 31 of the said Act.

The petitioner states in his petition that on this complaint the learned Magistrate issued process and, therefore, he has approached this Court after the service of the summons on December 3, 1986. He states that the Criminal Case was posted for hearing on January 7, 1987.

The learned Advocate for the petitioner submits that the present complaint is barred by limitation and the learned Magistrate could not have taken cognizance of the offence on the date on which he issued process. In this connection, he referred to the provisions of Section 31 of the Industrial Disputes Act, 1947 which provided penalty. It reads thus :

"31. Penalty for other offences : (1) Any employer who contravenes the provisions of Section 33 shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

Here in this case, the contravention that is contemplated is one u/s 33 and made penal u/s 31 and, therefore, the punishment that is provided is imprisonment for a term which may extend to six months or with fine.

He then relied upon the provisions of Section 468 of the Code of Criminal Procedure which prescribe the period of limitation and it is one year if the offence is punishable with imprisonment for a term not exceeding one year. According to his submission, the Court is debarred from taking cognizance of the offence in view of this provision after the lapse of the period of one year provided by Section 468(2)(b) of the Code of Criminal Procedure.

He states that in complaint it has been stated that the closure took place on June 14, 1985 while the complaint had been filed on September 12, 1986. According to him the complaint was, therefore, clearly barred by limitation.

In this connection, it has been pointed out to me by the learned Additional Public Prosecutor that the closure was in fact not on June 14, 1985 but on July 3, 1985 and in this connection he relied upon the petitioner''s statement to that effect in para 3 of the petition. According to him, the date has been wrongly mentioned in the complaint. Assuming it is so, it will not help the prosecution. The complaint having been filed on September 12, 1986, was clearly filed after a period of one year as even according to this assertion, on July 3, 1985 that the offence took place, prima facie, therefore, there was material before the learned Magistrate to hold that it was barred by limitation.

The learned Additional Public Prosecutor, however, submits that the provisions of Section 470(3) of the Code of Criminal Procedure could be invoked in this case to hold that the prosecution was within time. Sub-section (3) of Section 470 reads thus :

"470(3) Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded."

He submits relying upon the statement submitted before me, that the date of sending the proposal to the Government is October 10, 1985 and the date of the sanction order of the proposal from Government is March 6, 1986. According to him, it covers a period of 4 months and 26 days and if that period is excluded and if the offence is held to have been committed on July 3, 1985, then the prosecution is well within limitation and not barred. In the first instance, I must state that no counter was filed to the petition in spite of the fact that an averment was made that the complaint was barred by limitation. If the Respondent-Complainant wanted to take advantage of this provision, it was necessary for the Respondent to plead this exclusion clause by filing proper affidavit-in-reply. Even assuming for the sake of argument that it is open to the Respondent to now plead that this period is liable to be excluded, I do not think that the argument advanced on behalf of the State is tenable.

One must turn to the provisions of Section 34 of the Industrial Disputes Act, 1947, which read thus :

"34. Cognizance of offences (1) No Court shall take cognizance of any offence punishable under this Act or of the abatement of any such offence, save on complaint made by or under the authority of the appropriate Government."

Therefore, what is contemplated by Section 34 is neither consent nor sanction of the Government or any other authority for the prosecution. What is contemplated by Section 34(1) is that the complaint must be made by the appropriate Government or by some one under the authority of the appropriate Government. Therefore, something is interposed between the act and the lodging of the complaint and the person who can complain is mentioned in sub-section (1) of Section 34. It does not amount to a sanction of consent for the prosecution. Therefore, nothing is interposed between the act and its congnizance by the Court and as stated earlier, what is interposed is something between the act and the lodging of the complaint. If this is the view taken, the plain reading of Section. 470(3) will clearly show that it is inapplicable. It is not the case of the Respondent that the notice of prosecution for an offence has been given. It is, therefore, to be seen whether the previous consent or sanction of the Government or any other authority was required for the institution of any prosecution. Here, on reading Section 34(1) of the Industrial Disputes Act, I find that neither consent nor sanction of the Government or any other authority was required. What is contemplated by Section 34(1) is the lodging of the complaint by the appropriate Government of under the authority of the appropriate Government.

Reference to some of the allied provisions could be made. Under the provisions of the Prevention of Food Adulteration Act, Section 20 states that ''No prosecution for an offence under this Act, not being an offence u/s 14 or Section 14A, shall be instituted except by, or with the written consent of, the Central Government or the State Government or a person authorised in this behalf by general or special order, by the Central Government or the State Government.'' Therefore, here under the provision of Section 20 of the Prevention of Food Adulteration Act, 1954, written consent of the Central Government or the State Government or of a person authorised in this behalf by general or special order by the Central Government or the Government is contemplated. Turning to the provisions of the Bombay Shops and Establishments Act, it is seen from Section 60 than ''no prosecution under this Act or the rules or orders made thereunder shall be instituted except by an Inspector and except with the previous sanction of the District Magistrate, Additional District Magistrate ....'' Therefore, it mentions the person who can lodge a complain viz ...., the Inspector and also contemplates previous sanction. Turning to the provisions of the Foreign Exchange Regulation Act, 1973, Section 61 reads thus :

"61. (2) No Court shall take cognizance - (i) of any offence punishable under sub-section (2) of Section 44 or sub-section (1) of Section 58. -

(a) where the offence is alleged to have been committed by an officer of Enforcement not lower in rank than an Assistant Director of Enforcement, except with the previous sanction of the Central Government.

(b) where the offence is alleged to have been committed by an officer of Enforcement lower in rank than an Assistant Director of Enforcement, except with the previous sanction of the Director of Enforcement;"

Here, the phraseology of this section shows that what is contemplated is the previous sanction for taking congnizance of an offence. Once again reading Section 34(1) of the Industrial Disputes Act, 1947, I am unable to accept the submission made by the learned Additional Public Prosecutor that considering the object behind the provision of Section 34(1), it should be so construed as to mean that the provisions sanction or consent by the appropriate Government was contemplated by Section 34(1) of the Industrial Disputes Act. It could be possible to refer to other similar enactments, but I do not find that exercise necessary in this case.

The learned Advocate for the petitioner has relied upon a decision in the case of State v. Diamond Prabhu, reported in 1980 (1) Kar. L.J. 23. A similar point arose for Their Lordships consideration and they upheld the contention raised on behalf of the accused that the prosecution was not entitled to exclusion of time required for obtaining the authorisation of the appropriate Government for filing the complaint. The learned Public Prosecutor in that cases has relied upon the provision of sub-section (3) of Section 470, Criminal Procedure Code, as has been done in the case before me, to contend that the period is liable to be excluded while counting the period of limitation. This argument was rejected for the reasons stated in that judgment. After quoting the provisions of Section 34(1) and (2), their Lordships observed that ''it is plain that the section does not say that institution of any prosecution for an offence under the Act is to be made after obtaining the previous consent or sanction of the Government or any other authority''. In para 8, Their Lordships proceed to observe :

"Obtaining of consent or sanction of an appropriate authority before instituting prosecution presupposes that the authority instituting prosecution has the power to do so, but is in law, required to exercise it, only after obtaining consent or sanction of an appropriate authority higher to the authority, which is of the opinion, that the prosecution is to be instituted. Hence, the question of obtaining consent or sanction from the Commissioner of Labour by the complainant does not at all arise. In the result, sub-section (3) of Section 470 of the Criminal Procedure Code has, in our opinion, no application to the facts of this case."

I am in respectful agreement with the view taken in this case, State v. Diamond Prabhu by the Karnataka High Court. Once, therefore, it is held that the provisions of Section 470(3) of the Code of Criminal Procedure do not enable the prosecution to contend that the period required for obtaining the authorisation of the appropriate Government, the contention raised on behalf of the petitioner that the prosecution was barred by limitation, will have to be upheld. Upholding the same, I find that the complaint lodged by the Assistant Commissioner of Labour and which came to be numbered as 1004/S of 1986 along with the order of issue of process passed thereon is liable to be quashed. Rule made absolute.