K.A. Swami, J.
1. In this petition under Article 226 of the Constitution, the petitioners have sought for the following reliefs :
a) to issue a writ or prohibition or any other appropriate writ, direction or order directing the second respondent not to proceed further with C.C. No. 1528/81 pending on his file by declaring the entire proceedings as illegal and bad;
b) to issue a writ of mandamus or any other writ, direction or order declaring the order No. IAA/Cr-164/80-81 dated 13th July 1981 passed by the Commissioner of Labour in Karnataka, Bangalore (Annexure 'C') as illegal, void and inoperative;
c) if necessary declare that portion of the provisions of Section 34(1) of the Industrial Disputes Act, 1947 containing the words "or under the authority of" as unconstitutional and void; and
d) to issue such other writs, or orders as this Hon'ble Court may deem fit in the circumstances of the case including an order as to costs etc., of the above writ petition in the interests of justice.
2. Annexure 'C' is the order of sanction dated 13th July 1981 bearing No. IAA/Cr-164/80-81 passed by the Commissioner of Labour in Karnataka, Bangalore, in exercise of the powers conferred on him by the State Government in their Notification dated 5th February 1967 bearing No. LMA-545-LLE-66 read with Sections 29 and 39 of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act') according sanction for prosecution of the Management of NGEF-AEG Engineering Co. Ltd., Bangalore, for the alleged non-implementation of Clause 5.2 of the Settlement dated 31st March 1980.
3. Sri R. N. Narasimha Murthy, learned Senior Counsel, for the petitioner, contends that the order according sanction for prosecuting the Management of NGEF-AEG Engineering Co. Ltd., Bangalore, is bad in law, because it does not disclose application of mind by the Authority; that in the matter of according sanction for prosecution the authority is required to apply its mind to the relevant facts of the case which disclose the offence for which the sanction is accorded; that unless it is forthcoming in the order of sanction itself, there will not be any proof for the authority having applied its mind to the facts necessary for according sanction; that the object of Section 34 of the Act is to eliminate frivolous prosecution which can be against the Management as well as against the labourers; that in order to safeguard the interest of both, Section 34 provides that no offence can be taken cognizance of unless the complaint is filed either by the Government or under the authority of the appropriate Government.
4. On the contrary, it is contended that it is clear from the preamble portion of the order according sanction that necessary material was placed before the sanctioning authority and it had applied its mind to the same; that even otherwise the said material must be deemed to have been taken into consideration as the order according sanction is passed with reference to the material referred in the preamble portion; that in addition to this the authority states that it is satisfied from the material placed before it that the NGEF-AEG Engineering Co. Ltd., has failed to implement the settlement dated 31st March 1980.
5. Therefore, the question for consideration is as to whether in a case like this interference under Article 226 of the Constitution is called for.
6. A Full Bench of this Court in S. N. Hada v. The Binny Limited Staff Association (1988-I-LLJ-405) was called upon to answer the following question (p. 406) :
"Whether a complaint lodged by a private individual securing permission from the Government or the Labour Commissioner as the case may be could be regarded as a complaint made under Section 34 of the Industrial Disputes Act by the Government or the Labour Commissioner or under its or his authority ?"
The Full bench has answered the question as follows : (pp. 410-411) :
"The Government can authorise a private person also to file a complaint and such a complaint shall be regarded as a valid complaint under Section 34 of the Industrial Disputes Act on which Court can take cognizance or any offence punishable under the Act."
We have referred to this decision because in the instant case the Secretary, NGEF-AEG Staff Employees Association, has been authorised to file the complaint for taking action against non-implementation of the settlement dated 31st March 1980. Authorisation of the Secretary, NGEF-AEG Staff Employees Association, Bangalore, to file a complaint is valid in law. Therefore, in the light of the aforesaid decision of the Full Bench of this Court, learned Counsel for the petitioner did not press for consideration of the contention that it is impermissible to authorise the Secretary, NGEF-AEG Staff Employees Association, Bangalore, to file the complaint to prosecute the petitioner.
7. The Full Bench during the course of its Judgment has also made certain observations about the object of Section 34 of the Act thus (pp. 409-410) :
"As we look at the matter, interpretation of Section 34 would be easier if the scheme of the Act, especially penalty provisions, are kept in mind as cognizance of a complaint under Section 34 is taken by a Magistrate only with regard to the offences specified therein. Under the Act, two parties between whom this exists are the Employer and the Employee. An offence of which complaint can be made would be committed either by the Employer or the Employee. By enacting penal provisions the aim of the legislature is to ensure compliance of the order of the Tribunal and also to ensure obedience and compliance of the provisions of the statute. By non-compliance or disobedience of any provisions of the Act, it is an individual right - either of the Employer or of the Employee - which is affected. The intent of the Legislature in enacting a provision like Section 34 is to save the party against whom the complaint is to be filed, from harassment, and it is for that reason that the Government is required to apply its mind and determine the propriety of filing a complaint. The phrase 'under the authority of the appropriate Government' implies a sanction by the Government after it has considered the desirability of prosecution. If such a provision had not been enacted there could be every likelihood of filing of frivolous complaints indiscriminately. Moreover, there are certain offences which have importance either to the Employer or the Employee only. In such matters why should the Government at all involve its Officers in filing the complaint and not allow the real aggrieved party to prosecute the complaint properly and diligently. What interest can the Government or its agency have in filing and prosecuting a complaint in which the rights of some private individuals are involved and which does not require determination of some question which may be of some importance and may warrant intervention of the State Government or its agency. As is clear, authorisation is a pre-requisite essential for taking cognizance of an offence under this Section. The appropriate Government, therefore, is required to apply its mind and satisfy itself before it grants the authority. It is this satisfaction which is material and sufficient for the purpose. Once on consideration of the relevant material the State Government finds it to be a fit case for prosecution, then who should file the complaint is not of much importance. The interpretation sought to be put on the words 'under the authority of the appropriate Government 'does not in any way advance the purpose of the Act. Strict grammatical or etymological propriety of language would not be of much use in understanding the intent of the Legislature and in construing the provision in question. It is well settled that the words of a statute, when there is a doubt about their meaning, are to be understood in the sense in which they best harmonize with the subject of the enactment and the object which the Legislature has in view. As has been brought our earlier, the intent of the Legislature is only to ensure the non-filing of frivolous complaints and nothing more."
Therefore it is also not disputed by either side before us that the object of Section 34 of the Act is to avoid false and frivolous complaints and thereby save the party from harassment; that precisely for that reason the Government is required to apply its mind and determine the propriety of filing the complaint.
8. The manner and the mode of application of mind and determination of the question as to whether there is application of mind by the authority empowered to accord sanction for filing the complaint, came up for consideration before the Supreme Court in various decisions. In Jaswant Singh v. State of Punjab (57-II, LLJ-269) the Supreme Court considered the validity of sanction accorded for prosecution under the Prevention of Corruption Act, and held thus : (p. 271) :
"The sanction under the Act is not intended to be, nor is, an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness; (Basdeo Agarwala v. Emperor 1945 FCR 93 at age 98) : The object of the provision for sanction is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. In Gokulchand Dwarakadas Morarka v. The King 1948 75 Ind. App. 30 at page 37, the Judicial Committee of the Privy Council also took a similar view when it observed :
'In their Lordship' view, to comply with the provisions of Clause 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since Clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But 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. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction.'
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, in 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. In Yusofalli Mulla v. The King (1949.LR.76-L.A. 158) it was held that a valid sanction on separate charges of hoarding and profiteering was essential to give the Court jurisdiction to try the charge. Without such sanction the prosecution would be a nullity and the trial without jurisdiction."
However, ultimately on the facts of that case it was held that as the sanction was not for the offence punishable under Section 5(1)(d) of the Act and as the prosecution was conducted for that offence, it was held that the prosecution was bad because there was no sanction for the offence for which the prosecution was conducted.
9. Again in Mohd. Iqbal Ahmed v. State of Andhra Pradesh the Supreme Court considered the sanction accorded under the Prevention of Corruption Act for prosecution. After quoting the actual order of sanction the Supreme Court observed thus :
"It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence all under to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficult (sic-defect) in the prosecution, the entire proceedings are rendered void ab initio."
It is also relevant to notice that both these decisions were rendered not in a petition under Articles 226 and 227 of the Constitution, but in the cases arising out of prosecution.
10. However, Sri Leelakrishna, learned Counsel appearing for the 1st respondent, placed reliance on a decision of the Supreme Court, in Ram Sagar Pandi v. State of Bihar (1963-II-LLJ-466). That was also a case wherein the sanction was accorded for prosecution under the provisions of the Prevention of Corruption Act for prosecuting for the offence punishable under Section 5(1)(2) and (3) of the Prevention of Corruption Act. In that case, the order of sanction did not disclose the facts, and documents which had a bearing on the case for the authority to come to the conclusion that it was a case for according sanction for prosecution. The decision in Gukulchand Dwarakadas Morarka v. The King 1948 (75) I.A. 30 which was also relied upon in Jaswant Singh's case (supra) was also referred to. In addition to this the decision in Madan Mohan Singh v. State of Uttar Pradesh and the decision in Jaswant Singh's case (supra) were considered. The decision in Ram Sagar Pandit's case (supra) was rendered by a larger Bench whereas the cases of Jaswant Singh (supra) and Mohd Iqbal were decided by a Bench of 2 Judges. In Ram Sagar Pandit's case (supra) after referring to the decision in Gokulchand Dwarakadas Moraka's case (supra) the Supreme Court observed thus : (pp 470-471) :
"Section 6 of the Act also does not require the sanction to be given in a particular form. The principle expressed by the Privy Council, namely, that the sanction should be given in respect of the facts constituting the offence charged, equally applies to the sanction under Section 6 of the Act. In the present case all the facts constituting the offence of misconduct with which the appellant was charged were placed before the Government. The second principle, namely, that the facts should be referred to on the face of the sanction and if they do not so appear, the prosecution must prove them by extraneous evidence, is certainly sound having regard to the purpose of the requirements of a sanction. In the present case though the sanction ex-facie does not disclose the facts, the documents which are exhibited in the case give all the necessary relevant facts constituting the offence of criminal misconduct. This Court in Biswabhusan Naik v. State of Orissa
rejected a contention similar to that now raised before us. There the sanction given under Section 6 of the Act referred only to sub-section (2) of Section 5 of the Act and it did not specify which of the four offences mentioned in Section 5(1) was meant. This Court, adverting to a similar contention, observed :
'It was evident from the evidence that the facts placed before the Government could only relate to offences under Section 161 of the Indian Penal Code and Clause (a) of Section 5(1) of the Prevention of Corruption Act. They could not relate to Clause (b) or (c). When the sanction was confined to Section 5(2), it could not in the circumstances of the case, have related to anything but Clause (a) of sub-section (1) of Section 5. Therefore, the omission to mention Clause (a) in the sanction did invalidate it.'
The aforesaid two decisions therefore answer the first two contentions of the learned Counsel :
Nor does the decision in Madan Mohan Singh v. State of Uttar Pradesh (supra) held the appellant. It is stated therein : 'the burden of proving that the requisite sanction has been obtained rests on the prosecution and such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based; and these facts may appear on the face of the sanction or may be proved by extraneous evidence.'
The proposition so stated is unexceptionable. In the present case not only the sanction discloses that the sanctioning authority has considered the documents place before it, but the documents so placed give all the necessary facts constituting the offence of criminal misconduct.
Reference is made to the decision in the case of Jaswant Singh v. State of Punjab (1957-II-LLJ-269). There this court held that after the sanction was granted for the prosecution in respect of one offence, cognizance could not be taken in respect of another offence in respect of which there was no sanction. In that case sanction was granted to prosecute Jaswant Singh Patwari for accepting an illegal gratification of Rs. 50 from one Pal Singh, but a charge was framed for his habitual acceptance of illegal gratification. This Court held that the prosecution for the offence under Section 5(1)(d) was valid but the offence of habitually receiving illegal gratification could not be taken cognizance of and the prosecution for that offence was void for want of sanction. This decision is relied upon in support of the contention that the letter of the Superintendent of Police only disclosed a specific act of bribery. This decision has no relevance to the question now raised before us. In the present case the sanction was given for prosecuting the appellant for criminal misconduct under Sections 5(1) (a) and 5(1)(d) of the Act. On the basis of the said sanction a charge was framed against the appellant for his having habitually accepted gratification other than legal remuneration and obtained for himself pecuniary advantage by corrupt and illegal means or by otherwise abusing his position as public servant and thereby committed the offence of criminal misconduct, an offence punishable under sub-section (2) read with sub-sections (1) and (3) of Section 5 of the Act II of 1947. All the facts necessary therefore to sustain a prosecution under sub-sections (1)(a) and (1)(d) were placed before the sanctioning authority and after having obtained the sanction the appellant was charged in respect of the said offence. This decision therefore does not help the appellant. For the aforesaid reasons we hold that there is no merit in either of the three contentions raised to invalidate the sanction."
The Supreme Court in Ram Sagar Pandit's case (supra) held that the decision in Jaswant Singh's (supra) rested upon the fact that there was no sanction accorded for the offence punishable under Section 5(1)(d) of the Prevention of Corruption Act and, therefore, the prosecution for that offence was invalid for want of sanction. Regarding the requirement of sanction, it was held that the sanction should disclose the facts which have a bearing on the question as to whether the offence had been committed and in case such disclosure was not found in the order of sanction it could be proved by producing evidence and material necessary for coming to the conclusion that there was a case for according sanction and such relevant material was placed before the authority who accorded the sanction.
11. That being the position, it is still open to the petitioners to contend before the Court before which they are to be prosecuted that the sanction accorded is not in accordance with law and that the Sanctioning Authority has accorded sanction without application of mind. In such an event, it is open to the prosecuting agency to prove that the sanction was accorded after taking into consideration the material having a bearing on the question. In addition to this, in the instant case there is a reference to the settlement and also the complaint made by the Secretary, NGEF-AEG Staff Employees Association for non-compliance with the terms of the settlement, the show-cause notice issued to the petitioners on the complaint filed and the reply submitted by the petitioner. On referring to all these materials in the preamble portion of the order, the order according sanction has been passed. However, we do not want to express any opinion on the question as to whether there is a requisite application of mind for according sanction and we leave that question to be urged before the Court where the petitioners are to be prosecuted. When the order of sanction refers to the relevant material, though it does not refer to the contents of the same, and the order is passed after issuing show-cause notice to the petitioners and on a reply submitted by them, and even thereafter it will still be open to the party to agitate before the Court during the course of prosecution that the sanction accorded is invalid, it would not be either just or proper for this Court to exercise jurisdiction either under Article 226 or under Article 227 of the Constitution. In such a case, if the petition is entertained, it will not only lead to delay in prosecution, it will also lead to delay in the implementation of the Settlement. Consequently, the party who is entitled to relief under the Settlement will be deprived of the relief. So, entertaining of petition under Article 226 or 227 of the Constitution in such cases will only result in miscarriage of justice.
12. On taking into consideration all the facts and circumstances and in the light of the decision in Ram Sagar Pandit's case (supra) we are of the opinion that this is not a case in which interference under Article 226 of the Constitution is called for.
13. For the reasons stated above, this Writ Petition fails and the same is dismissed. All the contentions touching the validity of the order according sanction for prosecution are left open to be urged in the prosecution.