Ananda Rao vs Labour Officer and Inspector

K.T. Koshi, C.J.—The petitioner has been convicted by the second class magistrate of Cochin in calendar case No. 619 of 1954 by his judgment, dated 22 December 1955. The concluding portion of the judgment reads as follows:

In the result I convict the accused u/s 45(1) of Act IX of 1125 read with Section 41 (3) of the said Act and sentence him to pay a line of rupees twenty-five or in default to undergo simple imprisonment for two weeks.

Act IX of 1125 is the Travancore-Cochin Shops and Establishments Act, 1125. Sub-section (1) of Section 45 of that Act provides that any employer who contravenes any of the provisions of the sections enumerated in that sub-section "shall be punishable, for a first offence, with fine which may extend to twenty-five rupees and for a second and subsequent offence, with fine which may extend to two hundred and fifty rupees." Section 41 is one of the sections mentioned in Section 45(1) and it reads as follows:

(1) No employer shall dispense with the services of a person employed continuously for a period of not less than six months, except for a reasonable cause and without giving such person at least one month''s notice or wages in lieu of such notice, provided, however, that such notice, shall not be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an inquiry held for the purpose.

(2) The person employed shall have a right to appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer.

(3) The decision of the appellate authority shall be final and binding on both the employer and the person employed.

It is clear from the wording of Sub-section (3) of Section 41 that a non-compliance with a decision of the appellate authority has not been made penal and the conviction therefore for a contravention of the provisions of that sub-section cannot be sustained.

The provisions of Section 41 which if contravened will constitute an offence liable to be punished u/s 45 (1) are those embodied in Sub-section (1) of Section 41. There was no complaint before the second class magistrate to the effect that the provisions of Sub-section (1) of Section 41 had been contravened by the employer.

The second class magistrate also seems to have been labouring under a misapprehension as to the scope of a trial for the contravention of the provisions of Section 41 in view of Sub-section (3) of that section which says that "the decision of the appellate authority shall be final and binding on both the employer and the person employed." Paragraph 13 of his judgment reads as follows:

Section 41(3) is explicitly worded and states that ''the decision of the appellate authority shall be final and binding on both the employer and the person employed.'' In the face of this, I do not think that this Court is competent to question Ex. A [the decision of the appellate authority u/s 41(2), dated 21 November 1952] or to find that it has been passed without jurisdiction. I therefore reject this argument.

Sections 41 and 51 of the Madras Shops and Establishments Act, 1947, and Sections 41 and 51 of the Travancore-Cochin Shops and Establishments Act, 1125, are identical in wording and in LXX Madras Law Weekly 87 the question as to what exactly is the effect of the words "shall be final" in Sub-section (3) of Section 41 came up for consideration. Somasundaram, J., said:

The main question in this revision is whether court can refuse to go into the question about the legality or illegality of the dismissal of P.W. 2. Section 41 of the Act provides the procedure to be adopted by the employer before he dismisses an employee, that is under Clause (1). Under Clause (2) a right of appeal is given to the authority prescribed under the Act, that is, the Commissioner of Labour. Under Clause (3) the decision of the appellate authority shall be final and binding on both the employer and the person employed. It is the provision of this Clause (3) which has given trouble in this case. The question is whether on account of this clause, the court can refuse to go into that question. In connexion with this, it is necessary to compare the Provisions of Section 51 of the same Act. Section 51 is as follows:

If any question arises whether all or any of the provisions of this Act apply to an establishment or to a person employed therein or whether Section 50 applies to any case or not, it shall be decided by the Commissioner of Labour and his decision thereon shall be final and shall not be liable to be questioned in any court of law.

Under Section 51 therefore the decision given by the Commissioner of Labour cannot be questioned in a court of law. There is no such prohibition in Clause (3) of Section 41. It merely lays down that the decision is final. It does not say such a decision shall not be questioned in a court of law. Where in the same Act the decisions under two sections are final with respect to the matters mentioned therein and in one of the sections it is, specifically stated that that decision cannot be questioned in a court of law and in the other section there is no such prohibition, the ordinary and legitimate inference is that where there is no such prohibition in a section the court of law can ques-he legality, although the decision may be final as between the parties.

We are in entire agreement with this view.

The Sessions Judge of Anjikaimal before whom an appeal was filed by the petitioner against his conviction and sentence toy the second class magistrate�criminal appeal No. 8 of 1956�appears to have been labouring under a misapprehension of a different type. He came to the conclusion that the second class magistrate can take cognizance of the offence only u/s 190(1)(c) of the Code of Criminal Procedure, 1898, and said:

A perusal of Section 530, Clause (k), will show that if the magistrate was not empowered u/s 190(1)(c), then his proceedings shall be void. Since there is no evidence on that point in this case, the case has to go back for decision on that point. If the magistrate has not been empowered by Government in this behalf, then necessarily he has to throw out the complaint. Therefore, the conviction of the appellant is set aside and the case sent back to the trial court for disposal afresh in the light of the observations made above.

Section 190(1) reads:

Except as hereinafter provided, any presidency magistrate, district magistrate or sub-divisional magistrate and any magistrate specially empowered in this behalf, may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.

There is no provision in the Travancore-Cochin Shops and Establishments Act, 1125, like for example, Section 43 of the Hyderabad Shops and Establishments Act (a provision which we consider eminently reasonable and which with advantage could be incorporated in the local enactment):

No court shall take cognizance of any offence under this Act or any rule or order made thereunder except on a complaint in writing by the chief inspector, or an inspector specifying the facts constituting such offence and made within six months of the date on which the offence is alleged to have been committed.

and in the absence of such a provision we do not see why the complaint filed by the labour officer before the second class magistrate should not be considered as a complaint of facts constituting the offence u/s 190(1)(a) of the Code of Criminal Procedure.

"Complaint" is defined in Section 4(h) of the Code as follows:

''complaint'' means the allegation made orally or in writing to a magistrate, with a view to his taking action under this Cede, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer.

As pointed out in ILR 13 Bom. 600:

As a general rule any person, having knowledge of the commission of an offence, may set the law in motion by a complaint, even though he is not personally interested or affected by the offence. The exceptions to this rule, of which Sections 195 and 198 of the Criminal Procedure Code are examples, are exceptions created by statute. There is nothing in the Code showing an intention to confine prosecutions to the persons directly injured.

In order to take cognizance of offences u/s 190(1)(a) the second class magistrate should of course have been specially empowered in that behalf. All the second class magistrates of Travancore-Cochin have been so empowered by a notification of the Government of Travancore-Cochin dated 5 November 1951 and published in the gazette dated 13 November 1951 (1931 Statutory Rules and Notifications, p. 582).

In the light of what we have stated in Para. 3 above the judgments in CO. No. 619 of 1954 and criminal appeal No. 8 of 1956 have to be set aside and the petitioner acquitted. We order accordingly. The fine, if paid, will be refunded to him.