Dr. B.S. Chauhan, J.
1. By this petition, the petitioners have challenged the order/authorisation dated 11.3.1994 contained in Annexure F to the petition granted by the "appropriate Government" under Sub-section (1) of Section 34 of the Industrial Disputes Act, 1947 (hereinafter called "the Act") authorising prosecution of the Management/petitioners under Sections 25T and 25U of the Act for alleged commission of certain unfair labour practice as defined under Section 2(ra) read with Schedule-V of the Act. The prosecution is assailed basically on the ground that unless there is an adjudication of the dispute and eligibility of the persons alleging the unfair labour practice, there cannot be authorisation for prosecution.
2. The factual gamut of the case reveals that the respondent No. 3, 6 the General Secretary, Lake Palace Hotel Employees Union made an application to the respondent No. 1, the "appropriate Government" for authorisation to file a complaint before the competent Court of the learned Magistrate for prosecuting the management for adopting the unfair labour practice which was in respect of changing the seniority, rating the workmen because of trade union activities, refusal to give promotion to the workmen to higher posts on their trade union activities and for giving unmetted promotion to certain workmen to create discard amongst the workers and undermine the strength of the union. The said application, alongwith its annexure, is contained in Annexure. A to the petition. On 21.1.1992 the respondent No. 1, the appropriate Government issued a Show Cause Notice (Annexure. D) to the Management/petitioners as to why the authorisation should not be granted. The management filed its reply on 13.2.1992 which is contained in Annexure. C to the petition, wherein a detailed reply to the application was filed with an additional plea that a Conciliation Settlement No. 27/81 dated 23.10.1981, which became the part of the Rules applicable in the instant case and the said rules provide for a detailed Grievance Redressal Procedure i.e., making a representation against any unfair labour practice to the concerned authority of the hotel and, also, provided for further remedies under the Rules and without exhausting the same, the said application was not maintainable. The other main ground mentioned in the reply to the show cause notice was that unless the issue of adoption of unfair labour practice is adjudicated upon by the Tribunal in a reference under Section 10 of the Act. The said application is not maintainable. The management, also, made applications on 26.8.1992 and 5.8.1994 contained in Annexures. D and E respectively, making requests to record evidence before sanctioning the authorisation of the prosecution and alongwith those application, some evidence was also adduced to rebut the allegations of respondent No. 3, the employee union. The respondent No. 1, "appropriate Government" gave opportunity of hearing to both the parties and passed the impugned order dated 11.3.1994 authorising the respondent No. 3 to file complaint before the competent Court. The relevant part of the authorisation reads as under:
Whereas an application was made by the General Secretary, Lake Palace Hotel Employees Union, Udaipur...for authorising him to file a complaint against the General Manager, Lake Palace Hotel, Udaipur, for committing unfair labour practice and whereas on the application of the union, the concerned authorises were heard on the same and whereas the State Government is satisfied that there is a prima facie case of committing unfair labour practice against the General Manager, Lake Palace Hotel, on the basis of the complaint and the record made available to the State Government, now, therefore, in exercise of the powers conferred on the State Government under Sub-section (1) of Section 34 of the Industrial Disputes Act. Shri Virendra Singh...is authorised to file a complaint.
3. In pursuance to the said authorisation, respondent No. 3 filed a complaint in the Court of the Chief Judicial Magistrate, Udaipur a copy of, which is annexed as Annexure. Rule 1. Being aggrieved and dissatisfied, the petitioners have challenged the said order of authorisation by filing this writ petition.
4. The instant petition has mainly been filed on the following grounds:
(1) The authorisation to a private person under Section 34(1) of the Act by the appropriate government is not permissible as the mandate of the Act requires that the complaint may be filed either by the State or its officer if authorised by the State;
(2) no authorisation can be granted unless some competent forum, i.e. Labour Court/Industrial Tribunal or Civil Court, in appropriate cases, records a finding of facts of adopting the unfair labour practice.
(3) the authorisation is bad as the Rules applicable in the instant case had been framed by incorporating the Conciliation Award dated 23.10.1981 and the procedure for redressal of the grievance provided under the said Rules had not been followed.
(4) the authorisation is bad as the same has been granted without application of mind as much as it does not disclose the reasons, for which it has been allowed.
5. The respondents No. 1 and 2, i.e., the State through Special Secretary and Labour Commissioner, have filed reply refuting all the averments made in the writ petition. Respondent No. 3 has, also, filed a detailed reply voicy-forcely opposing the factual as well as the legal averments made by the petitioners. It has been contended that the petitioners are guilty of suppressing the material facts, the settlement dated 23.10.1981 stood superseded by the subsequent agreement/settlement and particularly the Standing Orders framed in 1991, against which the present petitioners have obtained an interim stay from the Bombay High Court and the petitioners cannot be permitted to take the advantage of the Rules and the Award which stood superseded by the said standing orders once the petitioners have obtained the stay order from the competent Court of Law. It is further averred that the remedy of getting the dispute settled by way of reference to the Industrial Tribunal is a separate and independent remedy and the availability of that relief would not exonerate the management from the liability of criminal prosecution for adopting the unfair labour practice and the authorisation to the respondent No. 3, i.e., a Private individual by the Government is legal and valid as under Section 3(1) of the Act, the State can grant authorisation to file complaint to any person. The management, also, filed rejoinder-affidavit reiterating its assertions made in the writ petition.
6. Heard learned Counsel for the parties and perused the record.
7. The first submission made by Mr. C.N. Sharma that the State cannot authorise, under Section 34(1) of the Act, a private party to file a complaint for adopting unfair labour practice which is punishable under Section 25T and Section 25U of the Act, is based upon the Division Bench judgment of Delhi High Court in Tobu Enterprises Ltd. v. Lieutenant Governor, 1994 (1) LLJ 1221, wherein the Delhi High Court has taken the view contrary to that taken by the Full Bench of Karnataka High Court in S.S. Hada v. Binny Ltd. Staff Association, 1988 (1) LLJ 405 wherein it was held that the State Government can authorise a private individual to file the complaint. The controversy stood resolved by the judgment of the Hon'ble Apex Court in Raj Kumar Gupta v. Lt. Governor. Delhi and Ors. 1997 Lab. & IC 2653, wherein the Apex Court has held that the provisions of Section 34 are in the nature of limitation on the entitlement of a workman or a trade union or an employer to complain of offences under the Act. Therefore, in the public interest, they should not be permitted to make frivolous, vexatious or otherwise patently untenable complaint and to this end, the Act provides that the Courts will not take cognizance of any complaint unless it is made with the authorisation of the appropriate government and having regard to the nature of prosecution and public policy, there is an implied limitation in Section 34 of the Act that "a prosecution could only be at the instance of the Government." Thus, the Government can authorise a private party to file a complaint for the offence under Section 25T of the Act.
8. The offences, for which the authorisation can be granted, relate to the workmen, the representative of the trade union and the management/employers. Therefore, the provisions of Section 34 cannot be interpreted in a way that the persons concerned with the offences must be exonerated from making such complaint and the Hon'ble Supreme Court approved the law laid down by the Karnataka High Court and disapproved the judgment of the Delhi High Court. Thus, in view of the above, there is no force in the submission made on behalf of the management on this count.
9. It has further been submitted on behalf of the management that authorisation under Section 3(1) cannot be made unless the competent Court/Tribunal/Authority records a finding of fact regarding adoption of unfair labour practice. In Trilok Chand v. NITC Ltd., 1994 (69) FLR 791, wherein the Delhi High Court has observed that the cases of unfair labour practice adopted to deprive the workmen of their legitimate right created under the Industrial Disputes Act, if any dispute arises with regard to the rights of the parties, the dispute should be referred to under Section 10 of the Act by the appropriate government to the Labour Court for its adjudication. In Kerala Rubber & Reclaims Ltd. v. P.N. Sunny, 1989 (58) FLR 534, the Kerala High Court considered various aspects of the problem and after putting reliance of a catena of judgments of the Hon'ble Supreme Court, wherein it has been laid down that if the right under the Common Law is violated, the aggrieved party has a right to choose the forum and it can approach either the Civil Court or resort to the proceedings under the Act, but where the rights alleged to have been violated, are created under the Act, in that case the party has to seek relief under the provisions of the Act and cannot go to Civil Court. As per the mandate of Section 2(k), which defines the 'industrial dispute', an individual workman would not be able to raise the dispute at all and if the submission of the petitioners is accepted, an individual workman would be deprived of his right to raise the grievance against the unfair labour practice. The trade union, acting in representative capacity, can do the needful for getting the industrial dispute settled. The prohibition against representation of single individual rests on broad policy of maintenance of industrial harmony and peace by promoting the principle of collective bargain. Therefore, if an individual workman is discriminated and subjected to unfair labour practice, he may not be able to raise industrial by the Union. In such an event he cannot be deprived of the right to make an application to the appropriate government to accord' sanction under Section 3(1) of the Act for launching criminal prosecution for offences punishable under Sections 25T and 25U of the Act.
10. The Hon'ble Supreme Court, dealt with the issue of unfair labour practice as provided under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act, 1971, in Hindustan Liver Ltd. v. Ashok Vishnu Kate and Ors. , but that judgment has no bearing on the facts of this case as the law applicable in the State of Maharashtra is quite distinguishable. The Hon'ble Supreme Court in Bharat Iron Works v. Bhugubhai Balubhai Patel and Ors. , observed as under:
The onus of establishing a plea of victimisation will be upon the person pleading it. Since a charge of victimisation is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evident by acts and conduct, these have to be established by safe and sure evidence. Mere allegation, vague suggestion and insurrection are not enough. All particulars of the charge brought-out, if believed, must be made by the Tribunal and a conclusion should be reached on the totality of the evidence produced. Again victimisation must be directly connected with the activities of the concerned employee invitably leading to the penal action without necessary proof of a valid charge against him.... A proved misconduct is antithesis of victimisation as understood in industrial rules. (Emphasis added).
11. On the strength of the aforesaid judgment, it is averred by Mr. Sharma that unless the Tribunal considers the case of unfair labour practice and reaches a conclusion that the employer/management had adopted the unfair labour practice, the authorisation cannot be accorded. In fact the judgment referred to above, is not the authority on the law. The issue involved in the instant case is whether in a given case where the aggrieved party has given-up the grievance against the civil consequences of the unfair labour practice but wants to raise the issue of criminal prosecution against the other side, whether in such a situation sanction can be accorded or not? Mr. M.S. Singhvi, learned Counsel for the union has relied upon the judgment of the Hon'ble Supreme Court in P. Jayappan v. S.K. Perumal , wherein an identical issue was involved as to whether criminal proceedings can be launched under Sections proceedings can be launched under Sections 276(c) and 277 of the Income Tax Act, as long as some proceedings for assessment/ re-assessment under the Act, in which there is a chance of success of the assessee, is pending. The Supreme Court held that the Criminal Court has to decide the case before it independently on the material placed before it independently on the material placed before it. The Hon'ble Apex Court observed as under:
At the out-set it has to be stated that there is no provision in law which provides that a prosecution for the offence in question cannot be launched until re-assessment proceedings initiated against the asessee, are complete. No other legal bar for the institution of the proceedings is urged except stating that in the event of the petitioner being exonerated in the re-assessment proceedings, the prosecution may have to dropped.... In criminal case, all the ingredients of the offence in question have to be established in order to secure the conviction of the accused. The criminal court, no doubt, gives due regard to the result of any proceeding under the Act having a bearing on the question in issue and in an appropriate case it may drop the proceeding in the light of an order passed under the Act. It does not, however, mean that the result of a proceeding under the Act would be binding on the criminal court. The criminal court has to judge the case independently on the evidence placed before it.... The prosecution in those circumstances cannot be quashed on the ground that it is a pre-mature one.... The institution of-the criminal proceedings cannot, in the circumstances, also, amount to an abuse of the process of the Court.
12. In the instant case no provision has been pointed out in the Act which prohibits the criminal prosecution in absence of the finding recorded by the Tribunal on the issue of unfair labour practice. Even there is no provision like the Income Tax Act that findings in the departmental proceeding would have bearing on the criminal prosecution and the prosecution may be dropped in view of the finding recorded by the Tax Authorities having bearing on it. The aggrieved party has a right to choose for the relief. For instance, in a given case embezzlement/misappropriation/pilferage of an amount of the employer by an employee may empower the employer to hold an enquiry against the delinquest and award appropriate punishment, the amount so misappropriated may. also, be recovered from him and at the same time criminal prosecution may, also, be launched under the provisions of Sections 406 and 409 of the Indian Penal Code. But if any employer chooses not to opt for the criminal prosecution, it would be deemed that the employer has compounded his offence to that extent. The natural corollary of it may be that the employer may launch the criminal prosecution against such an employee and may choose not even to initiate disciplinary proceedings and even if he is acquitted by the criminal court. In such a situation, such an employee may seek re-employment if acquitted by Criminal Court but cannot agitate that the criminal prosecution is not permissible at all.
13. In Modi Industries Ltd. v. State of Uttar Pradesh, , the Hon'ble Supreme Court dealt with the provisions of Section 3 of the Industrial Peace (Timely Payment of Wages) Act, 1978. The provisions of the said Act encloathed the competent authority under the Act to issue a certificate of recovery of arrears of the wages only in a case of admitted facts. The authority had no competence to issue such a certificate in case of disputed facts. In that case it was held that the competence of the said statutory authority extended only to find out whether in the admitted facts the workman had worked, the grievance of the workman was of some substance or not, but if a genuine dispute existed between the parties as who was at fault, the Labour Commissioner had no competence to decide the factual controversy and in such a case the appropriate forum to adjudicate upon the issue was held to be the Industrial Tribunal and directions to make a reference under Section 10 of the Act were issued. Similarly, in Syndicate Bank and Ors. v. Umesh Nayak , the
Constitution Bench of the Supreme Court has held that the proper forum for the decision on factual issue is the Adjudicator under the Act. Similarly, in the case of M/s. Firestone Tyre & Rubber Company of India. Put. Ltd. v. the Workmen AIR 1980 SC 1626, the reference under Section 10 was made to determine the issue of unfair labour practice.
14. No doubt, in all these cases it has been held that the issue of unfair labour practice may be referred to the Tribunal to redress the grievance of a party. However, it does not mean that in absence of such a reference the Criminal prosecution cannot be launched for the offences punishable under Sections 25T and 25U of the Act. The submissions made on this court, also, have no substance.
15. Mr. Sharma has vehemently argued that the Conciliation Award dated 23.10.1981 provides a detailed Grievance Redressal Procedure which is binding on the members of the union and without following the said procedure, the application for according authorisation was not maintainable particularly in view of the fact that the Rules, which are applicable to the workmen, have incorporated the terms of the said Award. Rule 5 of the Service Rules provides as under:
5. Redressal of Employees against unfair treatment.
All complaints arising out of employment including those relating to unfair treatment, wrongful applications of these Standing Order shall be submitted to the Manager or any other person authorised in this behalf with right of appeal to the Executive Project Coordinator (Rajasthan). The following procedure will be adopted by the employees in the order stated:
(a) Representation to the Head of Department;
(b) Representation to the Administrator/Personnel Officer;
(c) Represenation to the Manager or General Manager; and
The employees shall exhaust the above procedure before taking up the grievance or dispute with any agency or authority directly or indirectly.
16. It is further submitted that the Standing Order No. 27 adopted in 1991 under the provisions of the Industrial Employment Standing Orders Act, 1946, also, provides for Grievance Redressal Procedure, according to which the employee is bound to put his grievance first before the Head of Department and if the workman is not satisfied by his decision, he would approach the Officer Incharge of the Hotel and even then the employee is not satisfied with the solution rendered by the Officer Incharge, he would approach the Personal Manager of Personnel Affairs and similarly a further hierarchy of authorities to hear the grievance is provided, which includes the Personnel Manager, Managing Director and after exhausting all the remedies if the workman is not genuinely satisfied, the workman would be justified in approaching the Court of Law.
17. The respondents herein have submitted that the management itself has obtained the interim order staying the operation of the said Standing Order from the Bombay High Court and the Management cannot raise that plea at all. Moreover, it is further submitted by the learned Counsel for the respondents that the Award dated 23.10.1981 also stood superseded by subsequent amendment but there is nothing on record to substantiate the averment that the said award has been superseded. However, if the award itself has been incorporated in the Standing Order which has been incorporated in the Standing Order which has been stayed by the operation of the interim order passed by the Bombay High Court, the petitioners cannot take any benefit of the said award. The Standing Order has not been framed by reference to the Award/Awards made from time to time. If it is a case of incorporation of the said Award dated 23.10.1981, the management cannot take any advantage of this. (Vide Gauri Shanker Gaur v. State of Uttar Pradesh , wherein the scope of the legislation by
incorporation and reference has been explained after putting reliance on a catena of Supreme Court judgments on the subject, particularly, Ujagar v. Union of India ; Dr. Pratap Singh v.
Director Enforcement, F.E.R.A., ; Western Goal Field Ltd. v. Special Area Development Authority, Korba AIR 1992 SC 697; and Barnajoze Jute Factory Company v. Inspector of Central Excise,, ).
18. Moreover, the submission made by Mr. Sharma that the breach of the terms of the award is, also, subject to imposition of penalty cannot be sustained and if the management feels that the workmen had violated the terms of the settlement and the award, he ought to have raised the grievance before the competent forum provided under the Act. Once the conciliation award stood incorporated in the rules, the operation of which has been stayed, the averment becomes preposterous. Under the provisions of Sections 18 and 19, the Settlement and Awards are binding on the parties but the management failed to lay down any factual foundation putting all the material before the Court as how the said Award dated 23.10.1981 remained operative after its incorporation in the said Rules.
19. In view to fortify his submissions, Mr. Sharma has placed reliance upon a Division Bench judgment of Karnataka High Court in v. Ramarao v. Commissioner of Labour, 1991 (1) LLJ 14, wherein it has been held that the authority according sanction is required to decide if there is a genuine dispute between the parties as to the terms of the Settlement and for violation of which the sanction for prosecution is sought. The authority must take care to see and must satisfy itself that the dispute in terms of the settlement is genuine and if such a controversy is raised, the authority empowered to accord sanction for prosecution has to decide the same before according sanction. In the absence of any such decision, the order according sanction for prosecution will be without authority of law, or without any basis because the very terms of the settlement, the violation of which is alleged, will be under dispute. The ratio of the said judgment is not applicable in the instant case at all for the reason that the facts involved herein are quite distinguishable. Petitioners have suppressed the fact regarding, the dispute pending before the Bombay High Court and it is not possible to ascertain as what are the issues involved therein and what are the terms of interim order passed.
20. In Bharat Singh v. State of Haryana and Ors. , it has been held that "when a point which is ostensibly a point of law, is required to be substantiated by fact, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such fact is not annexed to the writ petition, or to the counter-affidavit, as the case may be, the Court will be entertain the point for the reason that the proceedings in writ jurisdiction are entirely distinguishable from the civil court proceedings wherein only the factual averments are made in the plaint and the written statement as the parties therein have ample opportunity to adduce the oral as well documentary evidence in support of their case before the Court."
21. Thus, the submission made by Mr. Sharma is not tenable on this point, also.
22. It has further been submitted on behalf of the management that the impugned authorisation is bad in law as it does not reveal reasons, on the basis of which the authorisation has been accorded, nor there has been any application of mind while granting the said authorisation and the case of the management was not considered prior to passing of the said order. A large number of judgments have been cited at Bar on the issue of Sanction as provided under Section 197 of the Code of Criminal Procedure or under Section 6 of the Prevention of Corruption Act and Section 19 of the Official Secrets Act. It may be relevant to mention here that there is a distinction in 'sanction' accorded under the provisions of the said Acts/Code and under the provisions of Section 3(1) of the Act. The purpose of requirement of sanction under Section 197 Cr. P.C. is entirely different as the persons who are liable to face criminal prosecution hold the public posts and the allegation against them is of committing an offence relating to their official position. The purpose therein is to protect the employees of the State from frivolous and vexatious criminal prosecution and the public policy requires that prior to putting a public officer on prosecution, the higher officer/authority may apply its mind to the facts and circumstances of the case and have a subjective satisfaction whether there is prima facie sufficient material on record warranting the prosecution of the government employee. The issue of sanction is considered by the competent authority under the law after a thorough investigation by the investigating agency which places the entire evidence before the competent authority and in case the competent authority chooses to grant sanction, the Court any take cognizance, frame the charges under Section 228 Cr. P.C. and proceed with the case as per the requirements of the law.
23. In a case under Section 3(1) of the Act we should not over-sight the fact that in a case of Industrial dispute the Us is between the management and the employee or management and the trade union. The appropriate government is required to interfere only to maintain industrial harmony and nothing else. The complaint to be filed before the learned Magistrate under the Act is by no means different from that of a private complaint filed by an individual under Section 200 of the Code of Criminal Procedure. The involvement of the appropriate government is necessary just to see that the industrial peace and tranquillity is not disturbed either by the management or by the trade union. By enacting penal provisions, the aim of the Legislature is to ensure compliance of the provisions of the statute, i.e., that neither the employer nor the employee must adopt the unfair labour practice if such provisions had not been enacted, there would have been very likelihood of filing frivolous complaints indiscriminately, which might ultimately affect the industrial peace. Therefore, the public policy requires that appropriate government may apply its mind and satisfy itself before it authorities a person to file complaint and the purpose of Legislature to enact Section 3(1) of the Act is only to ensure non-filing of frivolous complaints and nothing more. Therefore, the authorisation under Section 34 cannot be put at par to the sanction which the appropriate government is required to exercise in granting or refusing sanction where sanction is a condition precedent to filing of a complaint. The discretion is just that of a private person who may file a complaint on pure ground of expediency and nothing else. (Vide Ram Das v. KM. Sen, 1955 Cal. 517). The reason being that there are two separate provisions in the Code of Criminal Procedure which provide for according the sanction. Section 196 provides that no Court shall take cognizance of any offence punishable under certain Sections unless complaint is made by order of or under authority from the State Government or some officer empowered by the State Government in this behalf. The other provision, i.e., Section 197, provides that when certain public servant are accused of any of offence alleged to have been committed by them while acting or purporting to act in discharge of the official duty, no Court shall take cognizance of such offence except with the previous sanction of certain authorities. Putting the previous consecutively in the Code require to draw inference that both the provisions must mean two different things and must be made applicable in two different situations. When an individual person files a complaint, he certainly exercises a certain amount of discretion and it is this discretion which is to be exercised while according or refusing authorisation under Section 34(1) of the Act.
24. When the order of sanction refers to 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. In such a situation, the provisions of Articles 226 and 227 of the Constitution cannot come to the rescue of the petitioners. In such a case if the petition is entertained, it will not only lead to delay in the prosecution but it will, also, lead to delay in the implementation of the Settlement and the execution of the mandatory provisions of the Act. (Vide F.K. Menzlin v. B.P. Prem Kumar, 1991 (1) LLJ 55).
25. In Martin Burn Ltd. v. R.N. Banerjee , the Apex Court, while considering the case under Section 22 of the Act, has held that while determining whether a prima facie case has been made out, the relevant consideration is whether on the evidence it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the appropriate court or Tribunal, on this question, may have arrived at a different conclusion. The appropriate government does not have to substitute its own judgment for deciding the question in issue. It has only to consider whether the view taken is a possible view on the evidence on record.
26. The same view had been taken by the Hon'ble Apex Court in Management of Bangalore Woollen, Cotton and Silk Mills, Company Ltd. v. B. Dasappa , wherein it was held that prima facie case does not mean the case proved to the hilt.
27. In Gokulchand Dwarkadas Morarka v. King AIR 1948 P.C. 82, it was held that The object of the provision of sanction is that the authority giving the sanction should be able to consider for itself the evidence before it and come to the 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 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.
28. Similarly, in Deshpandey (P.M) and Anr. v. Ferro Alloys Corporation and Ors. , the Court held that the authorisation must establish fully that the Government, while giving authorisation, had considered all the material on record and came to the definite conclusion on the evidence that accused should be prosecuted and where the authorisation is a necessary, it must be clear that it should not be an automatic formality, rather the sanction must reveal that the authority had applied its mind to the relevant facts and it its satisfaction which is material and sufficient for the purpose. However, this fact can be proved either by direct evidence or otherwise and it is not necessary that such satisfaction should be evident from the order of authorisation itself.
29. The issue was considered by the Apex Court in Superintendent, C.B.I. v. Deepak Chowdhari , and it was held that the sanctioning authority is required only to see whether the material collected during the investigation would constitute an offence, for which the sanction is sought. In State of Bihar and Anr. v. P.P. Sharma and Anr. , the Supreme Court has observed that the
Sanctioning Authority must apply its mind and consider all the reports and material-facts which may prima facie establish the commission of an offence. The order of sanction is an administrative one and not quasi-judicial, nor a lis involved, the order may not contain the detailed reasons, the Apex Court observed as under:
When the Government accords sanction, Section 114(e) of the Evidence Act raises a presumption that the official acts have been regularly performed. The burden is heavier on the accused to establish the contra to rebut that statutory provision.
30. Similarly, in State of West Bengal v. Mohammed Khalid AIR, 1995 SC 789, the Supreme Court observed that in such a case it would be more appropriate that the issue may be raised at the time of framing the charges under Section 228 Cr. P.C. and if sufficient grounds do not exist for proceeding with the trial, the accused may be discharged. As the purpose of enacting the provisions of Section 228 Cr. P.C. seems to be not to waste public time over cases which do not disclose a prima facie case and to save the accused from formidable harassment and expenditure.
31. In view of the above, the present petitioners failed to rebut the presumption under Section 114 of the Evidence Act. The sanction had been according after giving them full opportunity to show cause and after affording an opportunity of hearing. The submission made on behalf of the management falls short to rebut that presumption. Thus, the submission made on this count, also, cannot be up-held.
32. There is another aspect of the case. In the instant case it has been stated at the Bar that the process has not yet been issued by the learned Magistrate against the management. A detailed procedure has been provided under Chapter XV of the Code of Criminal Procedure. Section 200 provides for examination of the complainant and Section 202 provides for postponement of issue of process against the accused for the purpose that before issuing the process the Court may enquire into the case itself or direct an investigation to be made by the police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. The purpose of an enquiry under Section 202 Cr. P.C. is not in the nature of trial, for there can be in law only one trial in respect of any offence and that a trial can commence only after the charge is framed under Section 228 Cr. P.C. (Vide State of Bihar v. J.A.C. Saldhana and Ors. ; State of U.P. v. Laxmi Brahmin
; and Kan Singh v. State of Rajasthan, 1997 (3) RLW 2053).
33. The proceedings prior to the issue of a process are not proceeding between the complainant and the accused. A person, against whom complaint is filed, does not become an accused until it is decided to issue process against him. Even if he participates in the proceedings under Section 202 of the Code of Criminal Procedure, he does so not as an accused but as a member of the public. (Vide Dr. S.S. Khanna v. Chief Secretary, Patna ). If the learned Magistrate does not find sufficient material after considering the statement on oath of the complainant etc. and the sanction and forms the opinion that there is no sufficient ground of proceeding, he shall dismiss the complaint and in that situation, the management may not face the prosecution at all. The complainant has to lead evidence before the Court to substantiate the allegations regarding the unfair labour practice and satisfy the Court that the facts require issuing of process (Vide Pfizer Ltd. v. Mazdoor Congress and Ors. ). Even if the process is issued under Section 204 of the Code, the petitioners can raise all these issues before the Magistrate. Section 204 of the Code indicates that the proceedings before the Magistrate commence upon taking cognizance of the offence and the issue of summons to the accused. If the need to try an accused arises, the accused can plead before the Magistrate that the process against him ought not have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. The Magistrate is empowered to drop the proceedings or rescind the process. The order issuing a process in an interim order and not a judgment and it is subject to variation or recall. The fact that the process has been issued is no bar to drop the proceedings. (Vide KM. Methew v. State of Kerala ). The issue can further be raised at the time of framing the charges. It is to early for the petitioners to make all these averments and this Court should refrain from making any observation as it may adversely affect the cause of either party before the trial Court.
34. The case requires examination from another angle, also. Petitioners are seeking quashing of the authorisation and if they succeed in it, it would ultimately result in quashing the prosecution itself. The prosecution, which is sought to be quashed, has not reached the stage where the petitioners come in picture as no process has yet been issued. Even otherwise, the petitioners cannot be permitted to achieve the goal by adopting such an oblique method. What cannot be done "per directum is not permissible to be done per obliqum, meaning thereby whatever is prohibited by law to be done directly, cannot legally be effected by an indirect and circuitous contrivance and it can be explained by legal maxim "quando aliquid prohibetur, prohibeturet omne per quod devenitur ad illud." (Smt. Ramapti Jaiwal v. State of U.P. ).
36. The law regarding quashing the criminal charges is well settled as has been considered by the Hon'ble Supreme Court in Emperor v. Khawqja Nazir Ahmed AIR 1945 PC 18; State of West Bengal v. Swapan Kumar Guha ; State of Haryana and Ors. v. Chaudhary Bhajan Lal and Ors. ; Janta Dal v. S.S. Choudhary and Ors.
Rehman Faizy and Ors. ; State of Bihar v. Rajendra
Agrawal, ; and Smt. Rashmi Kumar v. Mahesh Kumar
Bhada, . In all these cases it has been held that the powers of quashing the criminal prosecution, i.e.,
FIR/Charge-sheet/Sanction should be used under exceptional circumstances and very sparingly and consciously only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised. But while examining the case it is not permissible for the Court either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out. In Roopan Deol Bajaj v. K.P.S. Gill and Anr. , the Supreme Court
observed as under:
Great care should be taken by the High Court before embarking to scrutinize the FIR/charge-sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider the necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. When investigating officer spent considerable time to collect the evidence and place the charge sheet before the Court, further action should not be short-circuited by resorting to exercise inherent power to quash the charge sheet. If a person is not allowed to do a thing directly, he cannot do so to do a thing directly, he cannot do so indirectly.
37. In substance, I am of the considered opinion that there is no illegality or infirmity according authorisation to respondent No. 3 by the appropriate Government to file complaint against the petitioners before the learned Magistrate for adopting unfair labour practice. Determination of the issue of unfair labour practice by the Labour Court cannot be a condition precedent for launching criminal prosecution. The authorisation order (impugned) does not suffer from any illegality and the facts and circumstances of the case do not warrant any interference at this stage.
38. Thus, in view of the above, the petition is devoid of any merit and it is accordingly dismissed. In the facts and circumstances of the case the parties are left to bear their own costs.