Skip to content


State of Kerala Vs. Mary C. Nidhiri Chacko - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1961)IILLJ569Ker
AppellantState of Kerala
RespondentMary C. Nidhiri Chacko
Cases Referred and Feros Din v. State of West Bengal
Excerpt:
.....of food adulteration act on the one hand, and section 197 of the criminal procedure code, clause 23 of the cotton cloth and yarn (control) order, 1943 and section 6(1) of the prevention of corruption act on the other, and say that the former set of provisions did not involve any sanction by the authority empowered to .complain after applying its mind to the facts of the case. 1 sets out full particulars of the award which was binding on the accused who was undisputably in management of the estate, and also states that the management, in other words, the accused, had failed to implement that award......of other persons.10. and at p. 273 he enumerates among that class of legal rights which are termed powers, the power to sue and to prosecute. i find little difficulty in holding that the right conferred on the appropriate government by section 34(1) of the industrial disputes act, using the word 'right' in its wide generic sense, is a power. it enables the appropriate government to do something and that ability can rightly be termed a power.11. the section, in fact, confers two powers on the appropriate government, the first to make a complaint and the second to authorize the making of a complaint or, in the words of counsel for the defence, to delegate in any particular case, its power to make a complaint. section 39 of the act authorizes the appropriate government to delegate any power.....
Judgment:

P.T. Raman Nayar, J.

1. The accused in this case was convicted by the District Magistrate, Ernakulam of an offence punishable under Section 29 of the Industrial Disputes Act, 1947 and was sentenced to pay a fine of Rs. 500, in default to suffer simple imprisonment for two months. On appeal, she was acquitted by the Sessions Court on the ground that there was no proper complaint in accordance with Section 34(1) of the Act and that, since the absence bf such a complaint was a bar to cognizance, the entire proceedings against the accused were without jurisdiction and therefore void, The Public Prosecutor has presented this appeal against that acquittal under Section 417 of the Criminal Procedure Code.

2. I might observe at the outset that, if the trial itself was without jurisdiction, there could be no acquittal properly speaking, and that the order of the Sessions Court really amounts only to a discharge of the accused from the case, the use of the word 'acquittal' by the learned Judge being a mistake. But, since the learned Judge has purported to acquit the accused, though in fact there could be no acquittal, I should think the provisions of Section 417 of the Criminal Procedure Code are attracted. Even if they are not, I can still act under Section 439, and if I think it proper, restore the judgment of the District Magistrate notwithstanding the restriction in Sub-section (4) of Section 439. The position seems to be this: If there is an acquittal, Section 417 would apply and they power to record a conviction would be unquestionable. But, if there is not, I would not, in restoring the judgment of the District Magistrate, be converting a finding of acquittal into one of conviction.

3. It was not disputed before the appellate Court, nor is it here, that the accused did, in fact, commit the offence alleged. All that is said is that, since there was no compliance with the requirements of Section 34 of the Industrial Disputes Act, the Court had no jurisdiction to try the accused for the offence.

4. Section 34(1) runs as follows:

34(1) 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.

5. Section 39 which provides for delegation of powers by the appropriate Government says:

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) * * *

(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.

And, acting under this section, the State Government (which is the appropriate Government in this case) issued a notification on 27 May 1958 (a copy of which had been marked in the case as Ex. P. 5) which reads thus: in exercise of the powers conferred by Section 39 of the Industrial Disputes Act, 1947 (Central Act XIV of 1947), the Government of Kerala hereby direct that the power exercisable by them under Section 34 of the said Act shall be exercisable also by the Labour Commissioner in respect of offences punishable under Section 29 of the said Act.

6. Acting under this power conferred on him; the Labour Commissioner, by his proceedings Ex. P. 1, dated 4 October 1958 authorised the District Labour Officer, Always, to file a complaint against the accused in this case for this particular offence and the authorization was in these terms:

Whereas it has been brought to the notice of the department that the management of the Nidhiri Estate, MookVannoor have not yet implemented the award of the labour Court, Ernakulam in Industrial Dispute No. 28 of 1957 and whereas it has been held that the same is an offence punishable under. Section 29 of the Industrial Disputes Act;

Now, therefore, under Section 34(1) of the Industrial Disputes Act, 1947 (Central Act XIV of 1947) and in exercise of the powers conferred by Government Notification No, 22096/12758-4, dated 27 May 1958, the Labour Commissioner hereby authorizes the District Labour Officer, Alwaye, to be a complaint against Mary C. Nidhiri Chacko, Chungom, Alleppey, before the appropriate Court for an offence under Section 29 of the Industrial Disputes Act.

7. In pursuance of this authority, the District Labour Officer, Always, presented a complaint against the accused before the District Magistrate, Ernakulam, and it was on this complaint that the District Magistrate tried and convicted her.

8. The learned Sessions Judge took the view that Section 34 of the industrial Disputes Act was only 'a mandate to the Court' and conferred no power on the Government. In that view, whatever was conferred on the Government under the section was not something that could be delegated by it under Section 39 which applies only to the delegation of power. Therefore the purported delegation under Ex. P. 5 was without effect; and so, the complaint made by the Labour Officer, Always, not being a complaint made by or under the authority of the appropriate Government, was not the complaint required by Section 34(1). And, although that question did not arise, since the complaint in this case was made not by the Labour Commissioner, the person named in Ex. P. 5, but by the District Labour Officer, Alwaye, the learned Judge also expressed the view, following the decision in Gokulchand Dwarkadas v. the King A.I.R. 1948 P.O. 82 and Ors. decisions to the same effect, that Ex. P. 5 could not be regarded as (what it obviously did not profess to be) a proper sanction to prosecute the accused for this particular offence.

9. I am unable to accept the view that Section 34(1) confers no power on .the appropriate Government. It prohibits the Court from taking cognizance of any offence punishable under the Act unless complaint is made to it by or under the authority of the appropriate Government. The making of the complaint or the giving of authority to make the complaint is therefore something which it enables the appropriate Government to do ; and this, there can be no doubt, is a power. The ward 'power' is used in Section 39 in its ordinary sense of 'ability to do anything' or 'capacity for producing an effect' and , even if it be that it is used in its technical legal sense, a reference to the standard Law Lexicons such as Burrows, Stroud, Black and Tamilins shows that the technical legal sense is not very different, 'Power' is denned by Burrows as an 'individual personal capacity of the donee of the power to do something.' Salmond in his book on Jurisprudence (11th Edn., p. 274) defines 'power ' thus:

A power may be defined as ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons.

10. And at p. 273 he enumerates among that class of legal rights which are termed powers, the power to sue and to prosecute. I find little difficulty in holding that the right conferred on the appropriate Government by Section 34(1) of the Industrial Disputes Act, using the word 'right' in its wide generic sense, is a power. It enables the appropriate Government to do something and that ability can rightly be termed a power.

11. The section, in fact, confers two powers on the appropriate Government, the first to make a complaint and the second to authorize the making of a complaint or, In the words of counsel for the defence, to delegate in any particular case, Its power to make a complaint. Section 39 of the Act authorizes the appropriate Government to delegate any power exercisable by it under the Act, and the delegation made by the State Government in favour of the Labour Commissioner under Ex. P. 5 is of both the powers under Section 34(1) in so far as offences under Section 29 are concerned, namely, the power to make a complaint and the power to authorize somebody else to make a complaint. The delegation is a perfectly good delegation in terms of the section, and since the section itself authorizes the delegation of the power to authorize someone else to make a com-plaint, no question of a delegate being disentitled to make a further delegation arises. The decision of the American Supreme Court in Cundahy Packing Company v. Holland [86 Lawyers' Edition, p. 895] relied upon on behalf of the accused has no bearing whatsoever on the question, for, there it was held, on a construction of the relevant provisions of the statute concerned, that there was no power of delegation conferred on the authority who made the delegation. Here, on the contrary, Section 39 in express terms authorizes the appropriate Government to delegate any of the powers given to it by the Act or the rules made thereunder, and the powers which the State Government has delegated by Ex. P. 5 are the powers conferred upon it by Section 34(1), as we have seen, of both the power to make a complaint and of the power to authorize somebody else to do so. The matter to which the delegation relates has been expressly specified in Ex. P. 5, and, since the delegation is not made subject to any conditions, no question of specifying conditions arises, so that the argument that Ex. P. 5 is bad because it does not specify the conditions subject to which the powers may be exercised by the delegate is without force. That argument loses sight of the words 'if any' appearing in the section after the word 'conditions.'

12. I might mention that the vires of Section 39 is not assailed; nor can I see on what ground it could possibly be assailed so far as the delegation of the powers under Section 34(1) is concerned.

13. There still remains the question whether the authorization under Ex. P.1 is proper and valid. At one time it might have been possible to distinguish, as a Division Bench of the Calcutta High Court did in Ramadas v. K.M. Sen : (1956)IILLJ323Cal between provisions like Section 196 of the Criminal Procedure Code, Section 34(1) of the Industrial Disputes Act and Section 20(1) of the Prevention of Food Adulteration Act on the one hand, and Section 197 of the Criminal Procedure Code, Clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943 and Section 6(1) of the Prevention of Corruption Act on the other, and say that the former set of provisions did not involve any sanction by the authority empowered to .complain after applying its mind to the facts of the case. It could have been said that what those provisions required was that the prosecution should either be by the authority mentioned or by some person specified by that authority, the emphasis being not so much upon whether, on the given facts, a prosecution should be launched, as upon who should have the conduct of the prosecution. But, after what has been said by the Supreme Court in Feroz Din v. State of West Bengal 1960--I L.L.J. 244 with reference to the very section we are now considering and in State of Bombay v. Kanaiyalal (1960) II K.L.R. 621, Para. 13 with reference to Section 20(1) of the Prevention of Food Adulteration Act, It is no longer possible to make any such distinction, and it would appear that the authorization or written consent required by the former set of provisions must comply with the requirements of a valid sanction under the latter set of provisions as laid down by the Privy Council in Gokulchand Dwarkadas v. The King A.I.R. 1948 P.O. 82. it seems that the object of the two sets of provisions is the same, namely, the prevention of frivolous or harassing prosecutions or of prosecutions which on grounds of policy, should not be instituted, and that what they say is, despite the difference in the wording, much the same. Where a competent authority itself makes a com-plaint, it has necessarily to set out in the complaint the facts of the case and state what offence has been committed so that the very act of presenting a complaint is some guarantee that the authority has, after applying its mind to the facts of the case, decided that a prosecution should be launched. But where the complaint is made, not by the competent authority, Jaut by somebody authorized by it, then the mere specification of the person to be prosecuted, and of the offence for which he is to be prosecuted, is by itself no guarantee that the competent authority has applied its mind to the facts of the case before deciding that a prosecution should be launched. Therefore, where, as in this case, the competent authority, instead of itself making a complaint, authorizes some other person to make a complaint on its behalf, It would seen? necessary to show, either by the order of authorization itself, or by evidence aliunde, that the competent authority has, after applying its mind to the facts of the case, decided upon a prosecution.

14. In this case, however, there is little difficulty on that score. For Ex. P. 1 contains all the facts of the case and also embodies the decision of the competent authority, namely, the Labour Commissioner, that the accused should be prosecuted for the offence. The gist of an offence under Section 29 of the Industrial Disputes Act is a breach of arty term of any settlement or award which is binding on the offender under the provisions of the Act. Ex. P. 1 sets out full particulars of the award which was binding on the accused who was undisputably in management of the estate, and also states that the management, in other words, the accused, had failed to Implement that award. Then it goes on to say that, therefore, the Labour Commissioner authorizes the District Labour Officer to lay a complaint against the accused for an offence under Section 29 of the Industrial Disputes Act. I should think Ex. p. 1 passes the test for a valid sanction laid down by the Privy Council in Gokulchand Dwarkadas v. The King A.I.R. 1948 P.O. 82, and affirmed by the Supreme Court in Jaswant Singh v. State of Punjab : 1958CriLJ265 and Feros Din v. State of West Bengal 1960--I L.L.J. 244.

15. The accused was rightly convicted by the District Magistrate under Section 29 of the Industrial Disputes Act and the sentence awarded, to her cannot be said to be excessive. I allow this appeal against the order of the Sessions Court acquitting the accused, And restore the conviction and sentence imposed by the District Magistrate.

16. The accused is given a fortnight's time to pay the fine.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //