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P.M. Deshpande and anr. Vs. Ferro Alloys Corporation and - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial;Criminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 814 of 1961 and Criminal Revn. Petn. No. 722 of 1961
Judge
Reported inAIR1964AP471; 1964CriLJ378; (1964)ILLJ613AP
ActsIndustrial Disputes Act, 1947 - Sections 2, 18, 18(3), 22, 23, 24, 26, 27, 29 and 34; Code of Criminal Procedure (CrPC) , 1898 - Sections 14 and 39(1)
AppellantP.M. Deshpande and anr.
RespondentFerro Alloys Corporation and ;r.B. Sree Ram and Co. Private Ltd., ;srikakulam and anr.
Appellant AdvocateS. Suryaprakasam and ;M. Satyanarayana Reddy, Advs.
Respondent AdvocateK. Srinivasamurthy, Adv.;C. Padmanabha Reddy for Public Prosecutor for the State
Excerpt:
(i) labour and industrial - jurisdiction - sections 14 and 39 (1) of criminal procedure code, 1898 - notification issued by state government in exercise of powers conferred under section 14 of code appointing presiding officer of industrial tribunal for purpose of trying offence under labour enactments - presiding officer to have all powers of magistrate and have jurisdiction over entire state - powers conferred with respect to office and not by name - conferment of power held to be in accordance with law. (ii) procedure - section 34 of industrial disputes act, 1947 ( workmen found guilty of misconduct prosecuted and sentenced by lower court - whether proceedings initiated against workers proper - cognizance of offence to be taken only with authority and sanction from appropriate.....kumarayya, j. 1. the petitioners have been convicted by the industrial tribunal, hyderabad cum-special first class magistrate hyderabad, for contravention of the provisions of sections 27 and 29 of the industrial disputes act, and sentenced to imprisonment and also to fine. on appeal, the sessions judge, secunderabad, giving benefit of doubt to accused-1 acquitted him of an offence under section 29 and upheld the conviction of a.2 under that section and of both the accused on the other count, but maintained only the sentence of fine awarded to the accused. the petitioners have, therefore, come up to this court invoking its revisionary powers. petitioner no. 1 p. m. deshpande is the executive member of the facor and sree r. b. sreeram workers' union and the 2nd petitioner is the president.....
Judgment:

Kumarayya, J.

1. The petitioners have been convicted by the Industrial Tribunal, Hyderabad Cum-Special First Class Magistrate Hyderabad, for contravention of the provisions of Sections 27 and 29 of the Industrial Disputes Act, and sentenced to imprisonment and also to fine. On appeal, the Sessions Judge, Secunderabad, giving benefit of doubt to accused-1 acquitted him of an offence under Section 29 and upheld the conviction of A.2 under that Section and of both the accused on the other count, but maintained only the sentence of fine awarded to the accused. The petitioners have, therefore, come up to this Court invoking its revisionary powers. Petitioner No. 1 P. M. Deshpande is the Executive Member of the FACOR and Sree R. B. Sreeram Workers' Union and the 2nd petitioner is the President of the said Union. There was a strike from 24-9-1960 to 1-10-1960 of the FACOR and R. B. Sree Ram and Company (Private) Ltd. The case of the prosecution is that there was a settlement during the course of the conciliation on 30-9-1959 to which the FACOR and R. B. Sree Ram and Company Workers' Union and also the management were parties and thereunder the Union had agreed not to resort to any strike or to any direct action in future and agreed that disputes, if any, which might arise in future would be settled by negotiation and conciliation. It was further agreed that the Union would maintain industrial peace for a period of three years from the date and would not raise any demands including increase in wages, in any form and in dearness allowance etc., for the said period commencing from 30-9-1959. This settlement was duly signed by the parties and also the Labour Conciliation Officer. A report was sent to the appropriate Government along with the memo of agreement signed by the parties. The prosecution contends that the terms of this agreement were fully acted upon by the Management, but the Union and the Workers could not be as good as their word, and that at the instigation of the accused, a strike was staged in breach of the settlement making fresh demands. Thus it is said that the accused petitioners herein, incurred the penalties under Sections 27 and 29 of the Act. The action was initiated at the instance of the Management, who after obtaining the requisite authorities from the Government lodged their complaint with the Presiding Officer of the Industrial Tribunal, who happens to be appointed Special Magistrate under Notification G. O. Ms. No. 1517 dated 4-7-1959 with all the powers of a First Class Magistrate for the purposes of trying offences under theLabour enactments in the entire State of Andhra Pradesh. The accused took up several picas challenging the propriety of the sanction given and also the legality of the action taken against them. All their pleas were rejected. The appellate Court agreed with the findings of the learned Chairman on-all the above points. The same points which have been unsuccessfully urged before the Court below have been reiterated in this revision petition.

2. The first point urged relates to the jurisdiction of the Tribunal to take cognizance of the matter. It was argued that there was no proper vesting of authority in the Tribunal as contemplated by Section 14 of the Criminal Procedure Code, because the powers conferred under the notification were not on a particular person by name, nor for a particular area in any of the Districts. This contention, having regard to the provisions of Sections 14 and 39 of the Code of Criminal Procedure, is devoid of merit. Before I consider the above provisions of law, it may be necessary to refer the wording of the Notification which had conferred powers on the Tribunal. It reads thus:-

'In exercise of the powers conferred by Section 14 of the Code of Criminal Procedure, 1898 (Central Act V of 1898) and in supersession of the notification of Home Department No. 686, dated the 24th October, 1958, published at page 2815 of the Andhra Pradesh Gazette, dated 13-11-1958, the Governor of Andhra Pradesh hereby appoints the Presiding Officers of the Labour Courts, Guntur and Hyderabad and the Presiding Officer, Industrial Tribunal, Hyderabad appointed under Section 7 and Section 7A of the Industrial Disputes Act, 1947 (Central Act XIV of 1947), respectively as-Special Magistrates and confers on them all the powers of a First Class Magistrate for the purposes of trying offences under the Labour enactments in the entire State of Andhra Pradesh.'

It is not disputed that the trial Magistrate who convicted the accused was the presiding officer of the Industrial Tribunal, Hyderabad, duty constituted under Section 7 and Section 7A of the Industrial Disputes Act, 1947. It is also not disputed that the offences for which the accused have been tried are the offences coming under Labour enactments, viz., the Industrial Disputes Act, 1947. The dispute is confined to the question whether the powers as expressed to be conferred are in order and have their legal validity. It is urged that the powers conferred are ineffective as they are not on a named person, nor for a specific area of a District. Section 14 of the Code of Criminal Procedure specifically lays down that -

'The State Government may confer upon any person who holds or has held any judicial post under the Union or a State or possesses such other qualifications as may, in consultation with the High Court, be specified in this behalf by the State Government by notification in the Official Gazette, all or any of the powers conferred or conferable by or under this Code on a Magistrate of the first, second or third class in respect to particular cases, or to a particular class or particular classes of cases, or in regard to cases generally in any local area outside the presidency-towns.'

Section 39 (1) of the Code of Criminal Procedure-reads thus:-

'In conferring powers under this Code the State Government may by order, empower persons specially by name or in virtue of their office or classes of officials generally by their official titles.' 'It is dear from the above provisions that it is open to the Stale Government to confer powers on a Magistrate in relation to a particular class or classes of cases in any local area and this conferment on that person may be specifically by name or by virtue of his office. Therefore, no exception can be taken if the powers were conferred on the presiding Officer of the Tribunal with reference to his office and not by his name. It has been so held by this Court in Public Prosecutor v. Sriram Bhad-rayya, : AIR1960AP282 , and also by the Madras High Court In Re, Palanisamy' Chettiar, (S) : AIR1957Mad351 . Similarly, the argument that the term 'local area' employed in Section 14 of the Code of Criminal Procedure must be limited to an area within the District, is equally untenable. That was indeed the view taken in Lakhmi Chand v. Emperor of India, 24 Pun Re 1901 Cr., by all the six Judges of the Full Bench. It was held there that the words 'Local area' could lie extended to cover, if necessary, all the territories administered by the Local Government issuing the notification. This view was not doubled in any wise in the subsequent decisions. (See also Hiralal v. Emperor, AIR 1918 Lah 190). The Allahabad High Court fully approved of that view. In Hari Das Mundra v. The State, : AIR1959All82 referring to an earlier decision taken in Lalta Prasad v. State, : AIR1952All70 , it was observed that the expression 'local area' is wide enough to include the entire State. No other High Court seems to have struck a different note. That view with respect is just and reasonable. Thus on a proper interpretation of the provision it is difficult to accept the contention of the learned counsel with regard to the first point, that the conferment of power was not in accordance with law.

3. The second point relates to the question whether the proceedings against the accused were properly initiated. Section 34 of the Industrial Disputes Act in this behalf provides thus:-

'(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.'

The proceedings purport to be initiated under the authority of the appropriate Government on a complaint filed by the Management. The authoritywas given in the following words:-

' Whereas under sub-section (3) of Section 12 of the Industrial Disputes Act, 1947 (Central Act 14 of 1947) the workmen and the employers of Fcrro Alloys Corporation (P) Ltd., Garividi haveentered into a Memorandum of Settlement on the 30th September, 1959:-

And whereas, Sarvasri P, M. Deshpande and R. M, Deshpande, President and Executive Officer, respectively of the Factory and R. B. Sriram Company Workers' Union, Garividi, have raised demands for additional remuneration and wages for strike period resorted to in 1959 in contravention of the terms of the said settlement, which is an offence punishable under Section 29 of the said Act:

And whereas, the said P. M. Deshpande and R. M. Deshpande have organised an illegal strike and incited the workers to take part in an illegal strike with effect from 24th September, 1960 to 2nd October, 1960, which is an offence punishable under Section 27 of the said Act:

And whereas, the Government are satisfied that the said Sarvasri P. M. Deshpande and R. M, Deshpande have thereby committed offence punishable under Section 29 and Section 27 of the Industrial Disputes Act, 1947 (Central Act 14 of 1947):

Now therefore, in exercise of the powers conferred by sub-section (1) of Section 34 of the said Act, the Governor of Andhra Pradesh hereby authorises the employers of Fero Alloys Corporation (P) Ltd., Garividi, to make a complaint against the said Sarvasri P. M. Deshpande and R. M. Deshpande in respect of the aforesaid in Court having jurisdiction.'

It would appear from the above order that the Government took note of all the necessary facts and after being satisfied that the accused have committed offences punishable under Sees. 27 and 29, they authorised the employers of Ferro Alloys Corporation (P) Ltd., to make a complaint against the said accused. Nevertheless it is urged that the authority as conferred on the complainant is bad in law and the proceedings started on that basis are void. The argument proceeds on the ground that apart from the above exhibit and the statement of P. W. 1 in support of the same, no other evidence has been adduced in the case to establish fully that the Government while giving authority had considered all the material records and had come to a definite conclusion on the evidence that the accused should be prosecuted. It is indeed unexceptionable that where the law enjoins that sanction of' authorisation would be a pre-requisite essential for taking cognizance of an offence, accord of such sanction or conferment of such authority ought not to become an automatic formality. It is incumbent on the authority concerned to satisfy itself by applying its mind to all the relevant facts before it grants the sanction. It is his satisfaction which is material and sufficient for the purpose. Whether it has satisfied itself thus is always a question of fact which can be proved either by direct evidence or otherwise. It is not necessary nor can it be insisted upon that it should be established only in a particular manner, as is contended for on behalf of the petitioners. The rulings relied by die petitioners do not render assistance to their contention. In Jaswant Singh v. State of Punjab, : 1958CriLJ265 , which was a case under the Prevention of Corruption Act, whereunder having regard to the provisions of Section 6 sanction had to be obtained before any proceedings can be initiated against the accused, the Supreme Court citing with approval the observations of the Judicial Committee ol the Privy Council in Gokulchand Dwarkadas v. The King. AIR 1948 PC 82 relied on by the learned counsel for the petitioners before me observed thus:-

'The object of the provision for sanction is that the authority giving the sanction should he able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden .......It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and therefore unless the matter can be proved by other evidence, ill the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case.'

It is, therefore, clear that if the sanction refers to the facts constituting the offence and indicates consideration of the evidence by the authority, that would be sufficient compliance with the legal provisions of the Act. In other words, if direct evidence with regard to the consideration of all the facts and satisfaction of the authority is- furnished by the order itself, no further evidence is necessary. In case the sanction by itself does not thus furnish direct evidence, it is open to the party to establish by oral evidence that the authority giving sanction in fact had considered all the material before it, took a decision and gave the sanction. In this premises if. we consider the order in question, it is obvious from the order itself that the Government had taken all the circumstances of the case into account and after their satisfaction that an offence has been committed authorised the Management to lodge a complaint in the proper forum. It therefore follows that the authorisation in question was sufficient in law within the meaning of Section 34 of the Industrial Disputes Act to enable the Court to take cognizance of the offence.

4. It is next argued that the material on record does not make out any offence against the accused, in that first of all, the settlement, the breach of which is complained of, is no valid settlement within the meaning of Section 2(p) of the Act, and secondly, no breach thereof is proved and in fact the Court below did not give a clear finding that the strike was an illegal strike. Section 2(p) of the Industrial Disputes Act defines 'settlement' thus:

'Settlement' means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the appropriate Government and the conciliation Officer.'

That there were conciliation proceedings and an agreement was arrived at during those proceedings admits of no doubt, having regard to the material on record. The contention of the learned counsel in the Court below was that the agreement was signed on behalf of the Union, only by the President and nnt by the working Secretary and hence that cannot be deemed to be an agreement signed by the parties as prescribed by law. This contention was repelled on the ground that not only the President, but also the Secretary did subscribe their signature to the settlement, though it may be that the Secretary who on account of illness had to leave the meeting that time had signed it the next morning and that the fact that both the President and the Secretary did not sign at the same time would not make it an invalid agreement. There is no reason to differ from this conclusionof the Courts below. It would also appear that the report was sent to the appropriate Government together with the memorandum of agreement signed by the parties in the prescribed manner. Such being the ease, it is indisputable that the parties to the agreement were bound by the terms of the agreement. Section 23 of the Industrial Disputes Act provides:

'No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock out -

(a) .......

(b) .......

(c) during any period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award.'

Section 24 declares any strike or lock-out illegal if it is commenced or declared 'in contravention of the provisions of Section 23. The Court below has found that there was a strike between 24-9 1960 and 1-10-1960 and that this strike was manifestly in contravention of Section 23 and was in violation of the terms of the agreement arrived at during the proceedings of the conciliation duly accepted by the parties. That being the case, if the acts of the accused come within the mischief of Section 22, they cannot escape liability under Section 27 or any other provisions which may be found applicable. Sections 22 and 27 of the Industrial Disputes Act are to the following effect:-

'Section 22: '(1) No person employed in a public utility service shall go on strike in breach of contract -

(a) Without giving to the employer notice of strike, as hereinafter provided within sis weeks, before striking; or

(b) within fourteen days of giving notice; or

(c) before the expiry of the dale of strike specific d in any such notice as aforesaid; or

(d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.

(2) No employer carrying on any public utility service shall lock-out any of his workmen -

(a) without giving them notice of lock-out as hereinafter provided, within six weeks before locking out; or,

(b) within fourteen days of giving such notice; or

(e) before the expiry of the date of lock-out specified in any such notice as aforesaid; or

(d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings;

(3) The notice of lock-out or strike under this section shall not be necessary where there is already in existence a strike or, as the case may be, lock-out in the public utility service, but the employer shall send intimation of such lock-out or strike on the day on which it is declared, to such authority as may be specified by the appropriate Government either generally or for a particular area or for a particular class of public utility services.

(4) The notice of strike referred in Sub-section (1) shall be given by such number of persons to such person or persons and in such manner as may be prescribed.

(5) The notice of lock-out referred to in Subsection (2) shall be given in such manner as may be prescribed.

(6) If on any day an employer receives from any persons employed by him any such notices as are referred to in Sub-section (1) or gives to any person employed by him any such notices as are referred to in Sub-scetion (2), lie shall within five days thereof report to the appropriate Government or to such authority as that Government may prescribe the number of' such notices received or given on that day.'

Section 27:-

'Any person who instigates or incites others to take part in, or otherwise acts in furtherance of, a strike or lock-out which is illegal under this Act, shall be punishable with imprisonment for a term which may ex Lend to six months or with fine which may extend to one thousand rupees, or with both.'

Both the Courts below are at one that the acts of both the accused fell within the mischief of Section 27, in that they had incited the workmen to take part in a strike which is illegal. This conclusion was reached on the evidence on record. That is indeed a finding of fact, which would not merit interference, unless it is unwarranted by record or perverse. The learned counsel has made out no such case. Section 27, unlike Section 26 (which is limited to workmen and employer) is wide enough to cover all persons. It is no doubt true that it is not every strike that is illegal. In fact, the workers have a fundamental right to launch a strike, and, any instigation or incitement to stage a strike would not therefore be illegal, unless the particular strike complained of itself is illegal under the Act. The person instigating would be guilty only when it is established that the strike which he incited the workers to take part in is to his knowledge illegal. Apart from the positive evidence on record, the very fact that the accused were on that date members of the Union, that they were fully cognizant of the agreement which rendered strike or lock-out illegal during its period of operation on grounds covered by the said agreement is sufficient to inculpate them. The order of conviction under Section 27 is, therefore, unexceptionable. But there is also another section under which A.2 has been punished. That section is Section 29 and it reads thus:

'Any person who commits a breach of any terms of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend In six months, or with fine, or with both and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid by way of compensation, to any person who in its opinion, has been injured by such breach.'

In order, to invoke Section 29, it is necessary that the award or settlement must be binding on the person and that a breach of any term of the settlement must be proved to have been committed by him. We have therefore to examine first the binding nature of the settlement on the accused as the accused admittedly were not the members of the Union at the time of settlement, though ofcourse they were such members when the impugned acts are said to have been committed by them. It may be noted at this stage that accused No. 2 was elected as President on 28-6-1960 and accused No. 1 was co-opted as a member on 9-8-1960 and the agreement, the breach of which is complained of was entered into on 30-0-1959 when Jagannadharao was the President of the Union. The question then is whether the accused can be deemed to be bound by an agreement to which they were not parties. The provisions of Section 18 in this behalf are very material as they relate to persons on whom settlement and awards art: binding. Clause (3) of the said section reads thus:

'A settlement arrived at in the course of conciliation proceedings under this Act or an award of a Labour Court, Tribunal or National ' Tribunal, which has become enforceable shall be binding on

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, (Labour Court, Tribunal or National Tribunal) as the case may be, records the opinion that they were so summoned without proper cause;

(c) where a party referrerd to in Clause (a) or Clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates;

(d) where a party referred to in Clause (a) or Clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the ease may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.'

It is manifest that Sub-clauses (a) and (b) have-, been given extended meaning by the introduction' of clauses (c) and (d). But even these latter clauses are confined only to the categories of cm-, plover and the employed or workmen. The accused do not come under either category. The decision of the Supreme Court in Ramnagar Cane and Sugar Co., Ltd. v. Jatin, : (1961)ILLJ244SC which is relied on by the learned counsel and which refers to (lie previous decisions of the Court on the point, was not concerned with the point that arises in this case. The question arose therein was whether in order to bind the workmen under Section 18(3) it was necessary to show that the workmen belonged to the union which was a party to the dispute before the Conciliator. Their Lord-ships while negativing this contention observed thus:

'The whole policy of Section 18 appears to be to give an extended operation to the settlement arrived at in the course of conciliation proceeding', and that is the object with which (be four categories of persons bound by such settlement are specified in Section 18, Sub-section (3).'

As already stated, this ruling does not deal with the question whether the persons other than the workmen, who entered the Union later on, shall be deemed to be the parties to the industrial dispute by virtue of their subsequent membership. The provisions of Section 29 being penal, unless the acts come clearly within the contravention of the said provision, die accused cannot be punished. Itis no doubt true that no industrial dispute can be raised unless it is sponsored by a group of workmen or a Union, but the question, is whether on account of the same, the members of the Union, irrespective of the fact that they are not the workmen and had joined the Union long after the industrial dispute, shall 'be deemed to be parties to the said dispute, in that the Union to which they have subscribed Inter on was a party thereto. It is difficult to include such persons in Clause (a) of Section 18(3) without extending the meaning of the- words employed therein. It must be remembered that the term 'industrial dispute' as defined in Section 2(k) means

'any dispute or difference between employers and employees, or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, or any person.'

Non-workmen and non-employers have no place of their own in this definition. But such dispute can-not bo raised unless it is sponsored by a body of workmen or by a Trade Union. In this way, the Trade Union occupies a representative capacity for getting the industrial disputes settled or decided. The prohibition against representation by a single individual rests on broad policy of maintenance of industrial harmony and peace by promoting the principle of collective bargaining. So then, if a dispute is raised through any Union, the Union (as it was constituted then) having represented the grievance or the disputes of the workmen of a particular establishment and having entered into a settlement on their behalf, may be bound, but the question is whether even this members who arc not then in the Union and who were not in fact parties to the industrial dispute, should be deemed to be such parties so that they may be held liable under Section 29 for any act which is in contravention of the terms of the agreement. If that was the intention of the Legislature, it would have provided so in clauses fc) and (d) of Section 18(3). But the said sub-clauses are concerned with the workmen and employees only and not other persons. If it was the intention of the Legislature to include such people as well, there is no reason why a similar provision was not made with regard to the persons other than the workers who were not members of the- Union at that time but became so subsequent thereof. We look in vain for a provision in this behalf similar to the one in Section 114 of the Bombay Industrial Relations Act, 1946, which makes specific provision in this behalf. It reads thus:

'(1). A registered agreement, or a settlement, submission or award shall be binding upon all persons who are parties thereto.

(a) ......

(b) In the case of a registered union, which isa party to such agreement, settlement, submissionor award, ail persons who were members of suchunion at the date of such agreement, settlement,submission or award, or who become members ofthe union thereafter, shall be bound by such agree-ment, settlement, submission or award.'

The intention of the Legislature that it did not seekto include all persons who become members later on to be bound by agreement, settlement etc., is obvious from the fact that whereas clauses (c) and (d) provided for the employers and workmen, there is no such provision for members. That being the case, when the accused were not members of the Union at the time when the industrial dispute was started or settled, they cannot be deemed to be' parties to that dispute. So they cannot come with-in the mischief of Section 29. Section 29 does' not seek to enforce any civil liability, but imposes' penal liability. It is well-settled that in order that an act may be punishable, it should clearly come within the provisions of the Act. In the absence'' of any such provision, I am unable to agree that' the accused came within the mischief of Section 29. In this view of the matter, the conviction under Section 29 of the Industrial Disputes Act cannot stand.

5. I, therefore, allow the revision to the extent indicated above. Accused No. 2 also is acquitted of the charge under Section 29. Fine if already paid shall be refunded to him. As regards the other charge under Section 27 the convictions and sentences of the Court below will stand.


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