JUDGMENT
Sen, J.
1. This revisional application is directed against the conviction of the petitioners under Section 26 and 27 or both of the Industrial Disputes Act and to the sentences passed thereunder. The prosecution case was briefly as follows–The petitioners Ramdass, Monmatha De, Mom Bose and Sheikh Karim are workers of the Oriental Gas Co. Ltd, whereas petitioner No. 5 Parimal Das is not a worker of the Company but is a labour leader.
There was a labour Union comprising of some workers of the Oriental Gas Co. Ltd. with Parimal as Secretary which functioned till 1948 when Parimal was placed in detention. After the orders of detention of Parimal, a new Union was formed under a different leadership and this new Union was registered and recognised by the Company. In 1951 Parimal was released from detention and he reorganised his Union comprising some workers of the Oriental Gas Co. Ltd.
But this Union which was freshly reorganised was not registered and the Company did not recognise the same. In order to put pressure on the Company the members of the Union led by Parimal organised a sudden strike on 13-6-51. On that day a worker of the Company named Sitaram, tried to enter the factory by the main gate, which was specially ear-marked for vehicular traffic. The Durwan posted at the gate offered resistance to Sitaram.
There was an altercation between the worker and the durwan and thereafter a strike was organised. According to the prosecution case Parimal who was not a worker of the Oriental Gas Co. Ltd. did not have free access inside the factory. He stood outside the compound on a bridge near the factory compound and directed the strike from there.
The other petitioners stationed themselves within the compound of the factory and they themselves struck work and began to incite others to strike. The Factory Manager remonstrated with the workers to resume work, but work was not resumed. The Deputy Labour Commissioner visited the Factory in the afternoon on receiving information and explained to the workers that the strike was illegal because the Oriental Gas Co. Ltd. was a public utility concern and no strike could be organised without 21 days’ notice in view of Section 22, Industrial Disputes Act.
The workers, however, did not resume work and the strike continued for about two months causing dislocation in the supply of Gas.
2. The accused all pleaded not guilty and the defence was that a false case had been instituted in order to smash the Union which Parimal was trying to organise. It was further contended that there was no strike on 13-6-51 but there was a temporary cessation of work by the workers as a protest against the rough handling of the worker Sitaram by a durwan of the Company and that on the following day, (14-6-51) the workers were dismissed and it could not be said that they had continued in any illegal strike.
3. The learned Magistrate, however, rejected the defence and found the accused petitioners guilty as follows: Ho found Parimal guilty under Section 27, Industrial Disputes Act for inciting the workers to strike. He found the remaining four petitioners guilty both under Section 26. Industrial Disputes Act for commencing and continuing an illegal strike and under Section 27, Industrial Disputes Act for inciting other workers to join an illegal strike.
Parimal was sentenced to suffer simple imprisonment for three months and the remaining petitioners were sentenced to suffer simple imprisonment for one month each under Section 26 of the Act and 3 months under Section 27, Industrial Disputes Act, the sentences to run concurrently.
4. There was an appeal to the Sessions Judge, Alipore and the Additional Sessions Judge who heard the appeal set aside the conviction of the petitioners 1 to 3 under Section 28 of the Act; he maintained their conviction under Section 27 of the Act but reduced the sentence to S. I. for one month only. In case of petitioner No. 4 Sk, Karim he maintained the conviction under both sections but reduced the sentence to S. I. for one month. In the case of petitioner No. 5 Parimal the learned Additional Sessions Judge maintained his conviction under both the counts and the Sentence passed thereunder.
5. In this Court Mr. Chatterjee appearing for
the petitioners has pressed the point that there was
no illegal strike but there was a sudden cessation of
work which had not been organised and that accordingly the petitioners could not be found guilty
either under Section 26 and 27 of the Act. Mr. Chatterjee
has referred to the definition of “strike” in Section 2(q),
Industrial Disputes Act. Therein ‘strike’ is defined
as
“a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal under a common understanding, of any number of persons, who arc or have been so employed to continue to work or to accept employment.”
Mr. Chatterjee’s contention is that in this case there was no combination among the workers, but there was a sudden cessation of work by the workers as a protest against the rough handling of the worker Sitaram. But there is evidence which was accepted by both the lower Court and the Court of appeal Below that the petitioner. Parimal stood on a bridge outside the Factory compound and excited the workers to strike after the incident between the durwan and the worker Sitaram and that the other four petitioners also incited workmen to strike alter that incident.
It is also admitted by Mr. Chatterjee that there was a total cessation of work by all the workers shortly after the incident between the durwan and the workman Sitaram. Even apart from any evidence it will be clear that such cessation could not have been come out without some organisation or combination among the workers. Accordingly the point raised by Mr. Chattarjee must fail and it must be held that there was a strike beginning from 13-6-51 in the Oriental Gas Co. Ltd.
The strike was” illegal because admittedly the Oriental Gas Co. Ltd. was public utility concern and the required notice under Section 22, Industrial Disputes Act has not been served.
6. The only other point raised by Mr. Chatterjee is that this Court was not entitled to take cognizance of the complaint because the provisions of Section 34 of the Act were not complied with. Section 34(1) provides that ‘No Court shall take cognizance of any offence punishable under this Act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate Government’. In this case the appropriate Government authorised the opposite party K.M. Sen, Assistant Manager of the Oriental Gas Co. Ltd. to file the complaint in respect of the offences under Sections 26 and 27, Industrial Disputes Act arising from the incident.
These notifications giving authority were tendered and marked Exts. 2 and 3 respectively. The dates of the notifications are 10-7,1951 and 28-9-1951 respectively. The first notification authorised complaint against first four petitioners and some others and the second notification authorised complaint against petitioner No. 5 and another person.
Mr. Chatterjee contends that the authority thus given by the State Government to K.M. Sen cannot be regarded as proper authority because the facts of the case are not mentioned in the notifications and there is nothing to show that the State
Government applied its mind to the facts of this case
and gave authority after due consideration. For this contention he has relied on the Privy Council ruling — ‘Gokulchand Dwarkadas Morarka v. The King .
That was the case under the Cotton Cloth and Yam (Control) Order, ,1943 and under CI. 23 of that order sanction was required to be given before a Court could take cognizance of the offence for contravention of the order.
The Privy Council held that a sanction which merely names the persons to be prosecuted and specifies the provisions of the Order which he was alleged to have contravened was not a sufficient compliance with Clause 23 under which sanction was given and that in order to comply with the provisions of Clause 23 it must be proved mat the sanction was given in respect of the facts constituting the offences charged and it was desirable that the facts should be referred to on the face of the sanction; but while this was not essential, if the facts did not appear on the face of the sanctioning order it was necessary that it should be, established by evidence that the sanction was given in respect or the facts constituting the offences charged.
On the authority of this Ruling Mr. Chatterjee has urged that Notifications, Exts. 2 and 3 do not refer to the tacts of the case, and as there is no direct evidence in the case establishing that the authority was given on the facts of the particular case, the authority given under Section 34 was not proper and therefore the Court should not have taken cognizance of the case. It must be pointed out, however, that the Privy Council ruling referred to relates to a case where sanction of the Local Government or by the appropriate authority was necessary.
Under Section 34, Industrial Disputes Act no sanction is necessary. Section 34(1) provides that the complaint is to be made by or under the authority of the appropriate Government. Where the complaint is not made by the appropriate Government the appropriate Government has only to give authority to some officer to file a complaint.
The case is therefore similar to a complaint under Section 196, Criminal P. C. which provides that no Court shall take cognizance of any offence punishable under Chap. VI or IXA, Penal Code or under –some other specified sections of the same Code unless upon complaint made by order of, or under authority from the State Government or some officer empowered by the State Government in this behalf.
In such a case it has never been held by the Privy Council that it has to be shown before the Court can take cognizance that the Government considered the facts and thereafter authorised the officer concerned to file a complaint. Such a decision has been given by the Privy Council only in respect of cases where the Statute provides that sanction of the Government is necessary, as under Section 197, Criminal P. C.
Distinction has to be made between cases where the Statute provides that no Court shall take cognizance of an offence except with the previous sanction of the Government and a case where the State provides that no Court shall take cognizance of an offence save on complaint made by or under the authority of the Government. Mr. Chatterjee has contended that in a case under the Industrial Disputes Act it has been held that similar considerations are required.
He has referred to the Ruling of the Madras High Court: — ‘In re Lakshmanan Chettiar’, . There, however, the authority given under Section 34, Industrial Disputes Act was a conditional authority. The Government authorised the District Magistrate to prosecute the management of an industrial concern in case he found that the award had not been implemented. In that case,
therefore, the Government delegated its duty to the District Magistrate to consider the facts.
Naturally, therefore, the authority was not properly given. The facts of the present case are quite different from the Madras case and that therefore this Ruling docs not apply to the present case.
7. Accordingly the contention of Mr. Chatterjee that the cognizance was not properly taken because the notifications containing the order of the Government authorising K. M. Sen to file the complaint were defective, cannot be accepted, and it must be held that cognizance was properly taken by the learned Magistrate
8. No other point has been urged in support of the application and the application must, therefore, Jail.
9. The Rule is, therefore, discharged.
10. The petitioners must surrender to their bail bonds and nerve out the remaining period of their sentence.
Guha Ray, J.
11. While I agree with the order just now made by my learned brother and the conclusion reached by him finally, I would like to add a few words of my own on the 2nd point of Mr. Chatterjee viz., that the authority given by the State Government to the complainant in this case is not a valid authority under Section 34, Industrial Disputes Act because there is nothing whatever to show that the State Government applied its mind to the facts o tins particular case.
In support of his contention he has relied first on ‘he Privy Council decision in and secondly on the Madras decision in .
The Privy Council case as pointed out by my learned brother, dealt with the question whether a sanction accorded by the Provincial Government as required by Section 23, Cotton Cloth and Yam Control Order, 1943 was a valid sanction and considering that point the Privy Council says that if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority, and the sanction to prosecute is an important matter as it constitutes a condition precedent to the institution of the prosecution and the Government has an absolute discretion to grant or withhold that sanction, and they are concerned not merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted but they can refuse sanction on any ground which commends itself to them, for example that on political or economical ground they regard a prosecution as inexpedient, and where the facts are not referred to on the face of the sanction nor is it proved on extraneous evidence that they were placed before the sanctioning authority, the sanction was invalid.
12. Section 34, Industrial Disputes Act however does not speak of sanction at all. It provides that no Court shall take cognizance of any offence punishable under the Industrial Disputes Act or of the abetment of any such offence save on complaint made by or under the authority of the appropriate’ Government. The question now arises whether this means precisely the same thing as where cognizance cannot be taken except when the complaint is sanctioned by a particular authority.
Section 196, Criminal P. C. provides that no Court shall take cognizance of any offence punishable under certain Sections unless upon complaint made by order of or under authority from the State Government or some officer empowered by the State Government in this behalf.
13. Section 197, Criminal P. C. provides that’ when certain public servants are accused of any offence alleged to have been committed by them
while acting or purporting to act in the discharge of the official duty no Court shall take cognizance of such offence except with the previous sanction of
certain authorities.
14. In the Criminal Procedure Code therefore there are two different forms of expression in two consecutive sections. The obvious inference from the use of these two different sets of expression in two different Sections is that they must mean two different things. When a person files a complaint he certainly exercises a certain amount of discretion but that discretion has nothing to do with judicial discretion.
That may be based purely on considerations of expediency or such other grounds. What Section 34, Industrial Disputes Act provides is that the appropriate Government itself can file a complaint. It means that the prosecution is not left either to the employer or the employee.
The prosecution must be made by the appropriate Government. Where the appropriate Government does not itself make the complaint it is to be made under the authority of the appropriate Government. It is therefore, at once obvious that the discretion to be exercised by the appropriate Government either in filing the complaint itself or in authorising someone else to file a complaint is the discretion that a private person would exercise in filing a complaint, a discretion based it may be, on pure grounds of expediency and nothing else.
But in according sanction to a complaint while the discretion is to be used by the appropriate authority which is to accord sanction, the discretion need not be purely judicial but a certain amount of judicial discretion has to be exercised in deciding whether the facts disclose a prima facie case.
It may he mixed up with other grounds. In my opinion therefore, the discretion to be exercised by the appropriate Government in filing a complaint under Section 34 or in authorising someone else to file such a complaint under that Section is not the same discretion as the appropriate Government is required, to exercise in granting or refusing sanction where sanction is a condition precedent to the filing of a complaint. In this view the Privy Council decision relied on by Mr. Chatterjee has no application whatever to this case. The Madras case is still less inapplicable.
It was a case in which the authority was granted in these terms: “He is requested to prosecute the management of the Mahalakshmi Textile Mills Ltd. Pasumalai, if the award has not been implemented. The Government does not decide for itself whether the award has been implemented or not, but leaves it to be decided by the person to whom authority is given. That is at best a conditional authority and this is not provided for in Section 34, Industrial Disputes Act so that the authority in that case was held to be invalid.
15. I therefore agree “with my learned brother
in the view he took on all the points raised by Mr.
Chatterjee and with the order made by him.
