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PETITIONER:

RAJ KUMAR GUPTA

Vs.

RESPONDENT:

LT. GOVERNOR, DELHI AND ORS.

DATE OF JUDGMENT: 05/11/1996

BENCH:

J.S. VERMA, K. RAMASWAMY, S.P. BHARUCHA

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

BHARUCHA.J.

On 16th April, 1991, the first respondent passed the

following order, acting under the provisions of Section 34

of the Industrial Disputes Act, 1947 (hereinafter referred

to as "the said Act"):

"Whereas it has been made to appear

to the Lt. Governor of the Union

Territory of Delhi that the

management of M/s. Garden Silk

Mills Ltd. Bella Mill Compound,

Outside Seharagate, Surat (ii) M/s.

Garden Silk Mills Ltd., 4959-Kucha

Rehman, Chandni Chowk, Delhi-6 have

indulged in unfair labour practices

as enumerated in the Fifth Schedule

of the Industrial Disputes Act,

1947 and thereby contravened

section 25-T of the aforesaid Act

which is an offence punishable

under section 25-D of the Act ibid.

2. Now, therefore, in exercise of

the powers conferred under section

34 of the said Act read with the

Government of India, Ministry of

Home Affairs Notification

No.2/2/61-Judl.I dated the 24th

March 1961 and after having

considered the matter carefully,

the Lt. Governor of the Union

Territory of Delhi, is pleased to

authorise Shri Raj Kumar Gupta,

Patron, Garden Silk Mills,

Karamchari Sangh (Regd), 5239-

Ajmeri Gate, Delhi to file a

complaint in the Court of Competent

jurisdiction, against the above

said establishment and the

following of its Officers, Which is

punishable under section 25-U of

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the Industrial Disputes Act, 1947,

as amended up-to date.

i)Sh.Praful A. Shah

Managing Director,Garden Silk Mills

Ltd.,Bella Mill Compound, Outside

Seharagate,Surat.

ii)Sh. S.J. Bhesania Whole-time

Director, Garden Silk Mills Ltd.,

Bella Mill Compound, Outside

Seharagate,Surat.

iii) Sh. I.P. Singh Regional

Manager, Delhi Garden Silk Mills

Ltd., 4959-kucha Rehman,Chandni

Chowk, Delhi-6."

The order was challenged by the employer (the third

respondent) in a writ petition filled in the High Court of

Delhi. The writ petition was allowed by the order under

appeal, which reads thus:

"In view of our judgment in C.W.P.

No. 1715 of 1991 (M/s. Tobu

Enterprises Limited and others vs.

The Lt. Governor, Delhi, and

others) the impugned order is bad

in law and is set aside. There

will be no order as to costs. Rule

is made absolute."

This appeal by special leave is filled by the person to

whom the authorisation under Section 34 was given.

Section 34 reads thus:

"34. Cognizance of offences.-(i) No

Court shall take cognizance of any

offence punishable under this Act

or of the abetment of any such

offences, save on complaint made by

or under the authority of the

appropriate Government.

(2) No Court inferior to that of a

Metropolitan Magistrate or a

Judicial Magistrate of the first

class shall try any offence

punishable under this Act."

In the case of M/s. Tobu Enterprises Limited, the only

question which arose for consideration was whether a private

person could be authorised under Section 34 to file a

complaint for an offence under Section 25-U of the said Act.

[Section 25-U prescribes the penalty for committing an

unfair labour practice. The Delhi High Court came to the

conclusion that under the provisions of Section of Section

34, the appropriate Government could file the complaint

itself or the complaint could be filed under its authority,

but there could not be two extremes, that is either the

appropriate Government itself filed the complaint or it

could authorise any private party to do so. The complaint

had to be filed either by the appropriate Government or its

functionaries. If the authority to file a complaint was

given to a private person it was likely to be abused. There

would be no check on the complainant to prosecute the

complaint with due diligence. He would not be interested in

a fair trial and might be actuated by personal vendetta

against the accused, frustrating a fair and speedy trial.

The appropriate Government had to have control over the

whole of the prosecution.

The Delhi High Court found itself unable to agree with

the view taken to the contrary by a Full Bench of the

Karnataka High Court in S.N. Hada vs. The Binny Ltd Staff

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Association LAB. I.C. 165 165. The identical question had

been raised before the Full Bench of the Karnataka High

Court and the Full Bench held that if the view was taken

that only the Government or its agent could file the

complaint, then the provisions of Section 30 providing for

the filling of the complaint by or on behalf of a trade

union or a business which was affected, would become

redundant. This could not have been the intention of the

Legislature. Viewed from any angle, the Full Bench found it

difficult to hold that under Section 34 a private body or a

person other than an agent of the Government could not be

authorised by the Government to file a complaint.

Section 30 reads thus:

"30. Penalty for disclosing

confidential information.- Any

person who willfully discloses any

such information as is referred to

in section 21 in contravention of

the provisions of that section

shall, on complaint made by or on

behalf of the trade union or

Individual business affected, 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."

Learned counsel for the appellant relied upon the

decision of the Full Bench of the Karnataka High Court and

submitted that there was no justification for reading

Section 34 on a restricted manner, as had been done by the

Delhi High Court in the case of M/s. Tobu Enterprises Ltd.

Learned counsel for the employer submitted that the

words "under the authority of the appropriate Government" in

Section 34 were only clarificatory and an amplification of

the provisions of Section 39.

Section 39 reads thus:

"39. Delegation of powers.- The

appropriate Government may, by

notification in the Official

Gazette, direct that any power

exercisable by it under this Act or

rules made thereunder shall, in

relation to such matters and

subject to such conditions, if any,

as may be specified in the

direction, be exercisable also.-

(a) Where the appropriate

Government is the Central

Government, by such officer or

authority subordinate to the

Central Government or by the State

Government, or by such officer or

authority subordinate to the State

Government, as may be specified in

the notification; and

(b) Where the appropriate

Government is a State Government by

such officer or authority

subordinate to the State Government

as may be specified in the

notification."

In learned counsel's submission, only a delegate of the

appropriate Government appointed under the provisions of

Section 39 could be authorised by the appropriate Government

to file a complaint under Section 34. There was, in any

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event, an implied limitation in Section 34 having regard to

the nature of a criminal prosecution and the general policy

that a prosecution could only be at the instance of the

Government. Learned counsel cited the judgment of this

Court in Ishwar Singh Bagga and Ors. vs. State of Rajasthan,

1987 (1) S.C.C. 101, upon which the Delhi High Court had

relied in the case of M/s. Tobu Enterprises Ltd.

Ishwar Singh Bagga's case related to the provisions of

Section 129-A of the Motor Vehicles Act, 1939, which dealt

with the power to detain vehicles used without certificate

of registration or permit. Section 129-A provided, "Any

police officer authorized in this behalf or other person

authorized in this behalf by the State Government

may.......... seize and detain the vehicle....." It was

held by this Court that the expression "other person" in

Section 129-A had to be read ejusdem generis with the

expression "any police office" which preceded it. The

expression could refer only to an officer of the Government

and not to an officer or employee of a statutory corporation

or any other private person. Having regard to the nature of

the power conferred by Section 129-A, it could not have been

the intention of the Legislature to confer such power on

persons who were not officers of the Government. if had been

so intended, the provision would have so stated. Ordinarily,

whenever a statute empowered the Government to appoint

persons to administer any of the provisions of a statute the

persons who could be so appointed by the Government could

only be persons appointed in connection with the affairs of

the State. In other words, they would be employee s or

officers of the Government who were directly subject to its

administrative and disciplinary control. The powers of

search seizure and detention of vehicles belonging to

private parties under Section 129-A and of launching

prosecutions in that regard were incidental to the sovereign

powers of the State and they could not ordinarily be

entrusted to private persons unless the statute concerned

made express provision in that behalf. It was a different

matter if a private person, on his own, filed a complaint

before a Magistrate and wised to establish a criminal

charge. In such a case the private person would not be

investigating in to the crime with the aid of the statutory

powers of search , seizure or detention.

In our view, the judgment in Ishwar Singh Bagga's case

is clearly distinguishable. The provisions of Section 129-A

of the Motor Vehicles Act deal with the power to seize and

detain vehicles. This is the police power of the state. It

was in the context of this power that it was held by this

Court that the "other person" would be exercising the

sovereign powers of the state and therefore, should be an

employee of the state. This view was reinforced by reading

the words "other person" ejusdem generis with the words "any

police officer" used in the provision just earlier. This

Court noted that a private person could file the complaint

but he would not be entitled to the powers of search,

seizure and detention conferred by Section 129-A, It was,

therfore, the nature of the power conferred by Section 129-A

which led this Court to hold that "other person" in Section

129-A meant an employee of the Government.

Penalties under the said Act are prescribed for the

officers of illegal strikes and lock-outs (Sections 26, 27

and 28), of breach of a settlement or award (Section 29), of

disclosing confidential information (Section 30) of closure

without notice (Section 30A), and of altering conditions of

service pending proceedings (Section 31 read with Section

33). These offences most closely concern workmen, the

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representative trade unions and employers.

The provisions of Section of Section 34 require that no

Court shall take cognizance of any offence punishable under

the said Act is of the abetment of such offence save on a

complaint made by the appropriate Government or under the

authority of the appropriate Government. There is no

limitation therein in regard to the party to whom the

authorisation may be given. It is the workman, the trade

union and the employer who are most concerned with offences

under the said Act and neither the terms of Section 34 nor

public policy require that they should be exclude from

making such complaints.

At the same time, the provisions of Section 34 are in

the nature of a limitation on the entitlement of a workman

or a trade union or an employer to complain of offences

under the said Act. They should not, in the public interest

be permitted to make frivolous, vexatious or otherwise

patently untenable complaints, and to this end Section 34

requires that no complaint shall be taken cognizance of

unless it is made with the authorisation of the appropriate

Government.

The argument that the words "or under the authority of"

in Section 34 (1) are only clarificatory and an

amplification of the provisions of Section 34 must be

rejected. Section 39 empowers the appropriate Government to

delegate the powers exercisable by it under the said Act.

This is altogether different from the concept of

authorisation to file a complaint under Section 34. If the

powers under Section 34 have ben delegated under Section 39,

the delegate can file the complaint himself or authorise

someone else to file it. Learned counsel's argument, if

accepted, would render the words "or under the authority of"

in Section 34 otiose and that is impermissible. These words

necessarily must be given due meaning and the meaning is

that the appropriate Government may authorise someone other

than itself, even a non-Government servant, to file a

complaint under Section 34.

Learned counsel submitted that , in any event, the writ

petition should be remitted to the Delhi High Court because

contentions had been taken therein which had not been dealt

with in the order under appeal. We see no good reason to do

so, but we make it clear that it shall be open to those

against whom the complaint is filed to take all available

deferences before the criminal court.

In the result, the appeal is allowed. The order under

appeal is set aside. The writ petition filed before the

Delhi High Court is dismissed. shall be no order as to

costs.