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Section 138: Prior sanction for prosecution

The Code on Social Security, 2020 (Act No. 36 of 2020) • Official Statutory Text & Plain English Practice Guide

Statutory Mandate
Chapter XII: Offences and Penalties
Competent Labour Forum
Act No. 36 of 2020
Section 137 All 163 Sections of Code on Social Security, 2020 Section 139

Legal Commentary & Landmark Judgments: Section 138

Section 138 of the Code mandates prior sanction for prosecution, providing that no prosecution shall be instituted against any employer without the previous sanction in writing of the designated sanctioning authority.

  • Mandatory Statutory Prior Sanction Prerequisite: Prohibits the filing of any criminal complaint under Chapter XII without the prior written sanction of the Central Board, Corporation, or designated State authority.
  • Substantive Application of Mind Safeguard: Requires the sanctioning authority to independently examine the inspection record, employer explanations, and proof of default before according prosecution sanction.
  • Threshold Jurisdictional Bar: Renders any criminal trial void ab initio if the complaint is filed without a valid, contemporaneous sanction order.
Key Landmark Precedents:
  • Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997) 7 SCC 622: Supreme Court affirmed that the grant of sanction is a solemn quasi-judicial function requiring active application of mind to all material facts; mechanical or rubber-stamp sanctions are void.
  • State of Bihar v. Kirly Mines AIR 1961 SC 171: Supreme Court held that absence of valid statutory sanction invalidates criminal cognizance taken by the trial magistrate.
  • Regional Provident Fund Commissioner v. Hooghly Mills Co. Ltd. (2012) 2 SCC 489: Affirmed that prior sanction provisions in labor codes protect employers from hasty or arbitrary field-level prosecutions.
Courtroom Practice & Strategic Litigation Guidance:

In challenging a prosecution summons, examine the Section 138 sanction order: if the sanction is a templated form with blank spaces filled in, or if it fails to reference the employer's reply to the show-cause notice, challenge it under Mansukhlal for non-application of mind.

Section 137 All 163 Sections of Code on Social Security, 2020 Section 139