1 Cw-5671-96 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH O R D E R Gauri Cement Private Ltd. Vs. State of Rajasthan & anr. S.B.CIVIL WRIT PETITION NO.5671/ 1996 under Article 226 of the Constitution of India DATE OF ORDER : : : : : 21st October, 2009 PRESENT HON'BLE MR.JUSTI CE K.S.CHAUDHARI Mr.Lokesh Sharma for the petitioner. Mr.S.D.Khaspuria Addl.Govt.Counsel for the State. Mr.Suresh Kashyap for the respondent No.2. The brief facts of the case are that respondent No.2 made a complaint to respondent No.1 mentioning therein that members of the Union were pressurised by the petitioner to resign from the membership of Union and when members of the union refused to resign, they were removed from service with effect from 31st August, 1994 and thus, violated provisions of Section 5 of the Industrial Disputes Act, 1947 and prayed for sanction for prosecution under Section 25-U of the said Act. Prior to above complaint proceedings for conciliation were initiated before the competent authority, but on account of failure of conciliation proceedings respondent No.1 referred the dispute to the Industrial Tribunal, Bharatpur and presently the sam e is yet to be adjudicated. 2 Cw-5671-96 Petitioner filed reply to the notice dated 23.9.1994 denying allegations and clarifying the fact that concerned workmen left the job with their own choice after receiving their due amount. It was further mentioned in reply that now they have joined duties with effect from 30th Septem ber, 1994 and as such now no dispute is existing between the petitioner and the workmen and no cause of action remains and no question of any unfair labour practise arises on the part of the petitioner, hence, notice may be dropped. Respondent No.1 vide its order dated 30th August, 1996 (Annexure-6) issued sanction to respondent No.2 for prosecution against the petitioner holding that petitioner violated provisions of Section 25-T of the said Act. Private individual has no authority under the Act to file the complaint and when matter is subjudice for adjudication before the Industrial Tribunal simultaneous proceeding for prosecution is illegal, hence, order of sanction Annexure-6 may be quashed. Heard learned counsel for the parties and perused the record. Learned counsel for the petitioner submitted 3 Cw-5671-96 that under the Industrial Disputes Act, 1947 respondent No.1 had no authority to authorise respondent No.2 to prosecute petitioner, hence order may be quashed. On the other hand, learned counsel for the respondent submitted that the Hon'ble Apex Court has held that any person can be authorised to file complaint, hence, petition may be dismissed. Learned counsel for the petitioner submitted that in view of judgment of Division Bench of Delhi High Court in Tobu En t er pr ises Lt d. & Ot h er s v s. Lt .Gov er n or , Delh i & ot h er s, r epor t ed in 1 9 9 4 LLR, 1 6 9 complaint for an offence under the Act except Section 30 could not have been filed by a private individual under the authority of the appropriate Government, hence, impugned order Annexure-6 may be quashed. Learned counsel for the respondents placed reliance on AI R 1 9 9 7 Su pr em e Cou r t , 2 6 8 0 ( Raj Ku m ar Gu pt a vs. Lt .Gover n or ,Delh i an d ot h er s in which Tobu Enterprises Ltd.'s case (supra) was considered and it was held by the Apex Court: “14.The provisions of Section 34 require that no Court shall take cognizance of any offence punishable under the said Act or of the abetment of such offence save on a complaint made by the appropriate Government or under the authority of the 4 Cw-5671-96 appropriate Government. There is no limitation therein in regard to the party to whom the authorisation may be given. It is the workman, the trade union and the employer who are most concerned with offences under the said Act and neither the terms of Section 34 nor public policy require that they should be excluded from making such complaints. 15.At the same time, the provisions of Section 34 are in the nature of a lim itation on the entitlement of a workman or a trade union or an employer to complain of offences under the said Act. They should not, in the public interest, be permitted to make frivolous, vexatious or otherwise patently untenable complaints, and to this end Section 34 requires that no complaint shall be taken cognizance of unless it is made with the authorisation of the appropriate Government. 16. The argum ent that the words “or under the authority of” in Section 34 (1) are only clarificatory and an amplification of the provisions of Section 39 must be rejected. Section 39 empowers the appropriate Government to delegate the powers exercisable by it under the said Act. This is altogether different from the concept of authorisation to file a com plaint under Section 34. If the powers under Section 34 have been delegated under Section 39, the delegate can file the complaint himself or authorise someone else to file it. Learned counsel's argum ent, if accepted, would render the words “or under the authority of” in Section 34 otions and that is impermissible. These words necessarily must be given due meaning and the meaning is that the appropriate Government may authorise someone other than itself, even a non-Government servant, to file a com plaint under Section 34.” In the light of law laid down by the Apex Court 5 Cw-5671-96 it becomes clear that respondent No.1 was competent to authorise respondent No.2 to prosecute the petitioner vide order Annexure-6 and the petition is liable to be dismissed. Hence, the writ petition of the petitioner is dismissed. (K.S.CHAUDHARI), J teekam 6 Cw-5671-96 S.B. CIVIL MISC. STAY APPLICATION NO. 4723/ 1996 IN S.B.CIVIL WRIT PETITION NO.5671/ 1996 DATE OF ORDER : : : : : 21st October, 2009 PRESENT HON'BLE MR.JUSTI CE K.S.CHAUDHARI Mr.Lokesh Sharma for the petitioner. Mr.S.D.Khaspuria Addl.Govt.Counsel for the State. Mr.Suresh Kashyap for the respondent No.2. Since the main petition itself has been dismissed, the stay application also stands dismissed. ( K.S.CHAUDHARI ) ,J. Teek am /