State of Kerala v. Antony D Cruz — 1965 DIGILAW 212 (KER)

Judgment :- 1. These four appeals by the State arise out of the judgment of the Second Additional Sessions Judge of Trivandrum in Criminal Appeal 80, 87, 88 and 89 of 1963 acquitting the respondents-accused who were found guilty and convicted under R.41(5) of the Defence of India Rules read with R.35(6)(i) and (o) and dealing with them under S.4(1) of the Probation of Offenders Act. Accused 2 & 4 did not file any appeal. It is against the other accused who were acquitted by the Sessions Judge that the State has filed these different appeals. These appeals were argued together and could conveniently be disposed of by a common judgment. 2. The facts that led up to the prosecution may be briefly stated as follows: The Trivandrum Port and Head-load Workers Labour Contract Co-operative Society No. 4245 (hereinafter referred to as the principal society) is the authorised clearing contractors of the Government of India, Food Ministry. Another society the Trivandrum Port Steavador and Boat Workers Labour Contract Cooperative Society T. 211 (hereinafter referred to as the agent society) were the clearing agents under the principal society. Pw.1 is the president of the principal society. Transport of rice bags and other cargo from the ship to the pier was being done by the labourers belonging to the two unions, one the Thuramugha Thozhilali Sangom and the other the Trivandrum Port Boatmen's Union (shortly called the rival union). The first accused Antony D'Cruz who was then a Member of the State Assembly was the secretary of the rival union. Second accused is the president and the third accused is the vice-president. The other accused were either workmen affiliated to the rival union or their sympathisers. 3. Transport of rice bags after discharge from the ship was being done in small boats called 'lighters' employed by the agent society. The vessel S.S. Maharani reached Trivandrum Port at Valiathura on 1-5-1963 with a large quantity of rice. The clearance commenced the same day by the labourers attached to the two unions and went on from day to day. The last consignment of 318 bags of rice discharged from the ship on 7-5-1963 were loaded in 13 boats belonging to the members of the rival union for being unloaded at the pier head for being transported to the Government godowns. The last consignment of 318 bags of rice discharged from the ship on 7-5-1963 were loaded in 13 boats belonging to the members of the rival union for being unloaded at the pier head for being transported to the Government godowns. Instead of doing so, they kept the boats in the open sea at the instigation of accused 1 and others. Both the principal society and the agent society demanded that the cargo be delivered at the pier but the workmen refused to accede to the request. On 17-5-1963 police aid was sought for. The Collector, the R.D.O. Pw. 3, the District Labour Officer, Port Conservator and some police officers were present at the place. Pw. 3 tried to persuade the workers shouting through the mike to come ashore, but accused 1 to 3 and 8 among others called out to the men not to come ashore. Pw. 3 then asked some of the workmen present and the police to pull the rope which tied the boats, but accused 1 to 3 and 8 called out that the ropes be cut and accused 4 and 5 cut the ropes. Accused 11 to 13 then rowed the boat into the interior of the sea to prevent the seizure of the rice bags. Ultimately the 318 rice bags got sunk in the sea, and only 79 bags were washed ashore which had by then become unfit for human consumption. Besides Pw. 3, other witnesses who were present had witnessed the incident and given evidence about what had taken place on that day. Pw. 11 the Circle Inspector arrested accused 1 to 3 on the spot. After completing the investigation accused were charge sheeted. 4. The accused generally denied the occurrence. Accused 1 to 3 stated that a pure industrial dispute and a strike started for the redressal of the grievances of the workmen have been magnified into a criminal complaint under the Defence of India Rules. They started that the allegations against them were false. The 8th accused denied commission of the offence and stated that what he did was to negotiate with the Regional Director of Food Supplies to have the cargo saved. The fourth accused stated that he was actually laid up with illness and was not present at the place. The other accused also denied commission of the offence. Five witnesses were examined on their side. 5. The fourth accused stated that he was actually laid up with illness and was not present at the place. The other accused also denied commission of the offence. Five witnesses were examined on their side. 5. Learned District Magistrate who tried the accused found that the incident as spoken to by the prosecution witnesses have been completely proved and rejecting the evidence of the defence witnesses found the accused guilty of the offence charged. On a reappraisal of the evidence, learned Sessions Judge also found that the acts attributed to the various accused had been satisfactorily established and found that those acts amounted to 'prejudicial acts' within the meaning of R.35(6)(i) and (o), but found that what the accused did cannot be said to have been done 'without lawful excuse' within the meaning of R.41 and found them not guilty and acquitted them. The finding of the learned Sessions Judge that there was 'lawful excuse' has been challenged by the State in this appeal. 6. Learned counsel for the respondents has rightly not chosen to attack the finding of fact, which has been well established, but he strenuously contended that the respondents had 'lawful excuse' for what they had done and in any view of the case being an appeal against the order of acquittal, it was urged that no interference is called for. 7. R.41 (1) says: "No person shall, without lawful authority or excuse- (a) do any prejudicial act, x x x x" We have then to see R.147. It reads: "Where any person is prosecuted for contravening any of these rules or order made thereunder which prohibits him from doing an act or being in possession of a thing without lawful authority or excuse or without a permit, licence, certificate, or permission, the burden of proving that he had such authority or excuse, or as the case may be the requisite permit, licence, certificate or permission shall be on him." By this rule when a person is prosecuted for contravening any rule or order made thereunder the burden of proving that he had lawful excuse for the same would be on him who sets up such a plea. So what has to be seen is whether prejudicial act in this case was done under any lawful excuse. So what has to be seen is whether prejudicial act in this case was done under any lawful excuse. If the accused are able to prove that there was 'lawful excuse' for what they had done then that would be sufficient to exonerate them. 8. The next question that arises is as to what is meant by'lawful excuse'. Learned counsel for the defence places great reliance on the two decisions referred to by the Sessions Judge. One, the case In re Alati Appalaswamy (AIR. 1942 Mad. 735) and the other in Dayaram v. Emperor (AIR. 1944 Bom. 243), which took the view that lawful excuse means an excuse which is not unlawful, that is to say not prohibited by law. In the case in AIR. 1942 Mad. 735 (cited supra) the president of a labour union called on a strike and dissuaded the workers from going to work in the mill engaged in producing war material. The finding was that the strike was resorted to not with the object of impeding any war effort but with the object of remedying the genuine grievances of the workers. The court held that it would amount to lawful excuse, for the strike when they had no other method of redressing their grievance except by going on strike was justified. It was stated that so long as strike as such has not been prohibited by law any excuse which is not unlawful would be sufficient to take it out of the category of the mischief contemplated by R.38(i) (a) of the Defence of India Rules. In the other case AIR. 1944 Bom. 248 (cited supra) strike started on the ground of insufficient wages, not being prohibited by law was held not without lawful excuse. Their Lordships stated: "The expression ‘without lawful authority' is distinct from without lawful excuse'. 'With lawful authority' means sanctioned by some lawful authority, whereas 'with lawful excuse' means having an excuse which is not unlawful, that is to say, not prohibited by law. Their Lordships stated: "The expression ‘without lawful authority' is distinct from without lawful excuse'. 'With lawful authority' means sanctioned by some lawful authority, whereas 'with lawful excuse' means having an excuse which is not unlawful, that is to say, not prohibited by law. There is no doubt that if the workers were not satisfied with the wages given to them, they had an excuse for going on strike, and unless such a strike is prohibited, the excuse cannot be regarded as unlawful." In both these cases it does not appear that there was contravention of the provisions of the Industrial Disputes Act in starting the strike as we have in this case. 9. Both these decisions were considered in a later case in Abidalli v. Emperor (AIR. 1947 Bom. 465). That was a case where the accused were convicted of an offence punishable under R.38 (5) of the Defence of India Rules, 1939. R.38 (1) lays down that no person shall, without lawful authority or excuse do any prejudicial act. This corresponds to R.41 of the present Act. Sen, J. stated: "Lawful authority clearly means an authority which is given or recognised by law and which permits the act in question to be done. It can scarcely mean, in our opinion, an authority which has not been shown to be unlawful. It is difficult to say, in our opinion, that'lawful excuse' is not ejusdem generis with ‘lawful authority' though the latter is a more precise expression. If so, it would mean an excuse which is allowed, created or recognised by some positive provision of law and not an excuse which is not shown to be illegal. To adopt the latter interpretation would be to include even frivolous excuse within the meaning of lawful excuse. An excuse, for instance, that the workers' health is being injuriously affected by work, or that they all want to visit a cinema show on a particular day, would be such a frivolous excuse which is not prohibited by any express provision of law. An excuse, for instance, that the workers' health is being injuriously affected by work, or that they all want to visit a cinema show on a particular day, would be such a frivolous excuse which is not prohibited by any express provision of law. It could obviously not have been the intention of the authority which made the Defence of India Rules that such an excuse would make the doer of a prejudicial act immune from the prescribed penalty." I am in respectful agreement with the view taken in this case and the expression 'lawful authority or excuse' would mean an authority or excuse allowed or recognised by law. So the question would be whether the accused had any legal justification for resorting to the so-called strike and refusing to unload the rice bags at the pier head. 10. It is only if the strike can be said to be legally justifiable under the Industrial Disputes Act (hereinafter referred to as the Act) that the accused can succeed in their plea that they had lawful excuse for calling on the strike and refusing to deliver the cargo. Learned Advocate-General has pointed out that there was no industrial dispute at the time when the strike was resorted to because the only dispute namely, the mode of payment had already been agreed upon in a settlement Ext. P.1 arrived at through conciliation. S.12 of the Act deals with conciliation proceedings. It reads: "(1) Where any industrial dispute exists or is apprehended the conciliation officer may, or where the dispute relates to a public utility service and a notice under S.22 has been given, shall hold conciliation proceedings in the prescribed manner. (2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute. (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute. Once a settlement has been so arrived at between the employer and the employee under the provisions of S.19 such a settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon for a period of six months, from the date on which the memorandum of settlement is signed by the parties to the dispute, and shall continue to be binding on the parties after the expiry of the period aforesaid, until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement. 11. Ext. P1 is the settlement reached as a result of the conciliation held on 21-4-1963. Accused 1 & 2 representing the workmen and Pw. 2 and the secretary of the principal society were parties to the conciliation and all of them have signed the settlement. The dispute was as to the mode of payment to the workmen and the following terms were agreed upon: 1. In future payments due to boatmen towards lighterage in Trivandrum Port will be paid by the Port and Headload Workers Labour Contract Society Ltd., through their agents viz., The Trivandrum Port Steavadors and Boat Workers Labour Contract Co-operative Society Ltd. 2. In case he above-mentioned agents failed to make the payments, The Trivandrum Port and Headload workers Labour Contract Co-operative Society Ltd., who are the principals shall be responsible for making such payments. 3. As regards payments of compensation, the union shall have the option to prefer claims either from the principal or their agents. 4. The union will withdraw all direct actions forthwith." 12. There is no case that it is not a valid settlement. S.19(1) says that a settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute. There is no case that it is not a valid settlement. S.19(1) says that a settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute. As no date has been fixed, Ext. P1 settlement would come into force from 21-4-1963, the date on which the parties had affixed their signature to it and it would continue to be binding on the parties for a period of 6 months and shall continue to be binding until the expiry of 2 months from the date the required notice in writing is given. It is not, therefore, open to the union to terminate and unilaterally repudiate the settlement without complying with the provisions contained in S.19(2) of the Act - vide the decision in Deccan Tile Works v. Their Workmen - (1960(2) LLJ. 298). There is no case here that any such notice was given. 13. Learned Judge has mixed up this dispute and settlement with an earlier dispute. That was a dispute regarding the enhancement of the lighterage charges and non-payment of certain amounts and on 1-4-1963 a settlement Ext. D3 was arrived at. The terms of that agreement were: 1. The management agrees to enhance the rate from Rs. 15.75 P. to Rs. 19 for 100 bags as ordered by the Govt. 2. An advance at the rate of Rs. 16 for 100 bags inclusive of the advance already paid for the work connected with the 'Jalaputra' will be paid on 6-4-1963. 3. The balance will be paid on or before 16-1963. 4. Al's union agrees to withdraw all direct actions forthwith. Pursuant to this settlement, arrangements were made to pay the amount. P. W. 4 the Labour Officer has sworn that the agent society was prepared to pay but the first accused union was not prepared to accept the amount from them and insisted on payment being made by the principal society. This dispute was in connection with the work done for unloading cargo from the steamer Jalaputra. This mode of payment was the subject matter of the second conciliation proceedings and in Ext. P.1 it was agreed that payments due to workmen towards lighterage charges would be paid by the agent society. This dispute was in connection with the work done for unloading cargo from the steamer Jalaputra. This mode of payment was the subject matter of the second conciliation proceedings and in Ext. P.1 it was agreed that payments due to workmen towards lighterage charges would be paid by the agent society. Neither P. W. 3 nor P.W. 4 who were present at the conciliation were asked the question whether payment of the balance amount was a condition precedent to the settlement in Ext. P1. There is nothing in the evidence to warrant the finding of the learned judge that the payment of the balance wages was a condition subject to which Ext. P1 was signed. It is true that on that day P. W. 4 had intimated to the secretary of the union by Ext. D 17 letter that the balance wages due to the labourers on account of the lighterage charges in respect of Jalaputra would be disbursed by him at 3 p. m. on the next day, 22-4-1963 at the port office. P. W. 4 has clearly stated that the letter was given after the settlement was reached and the parties had signed Ext. P1. There is nothing in Ext. P1 to suggest that a condition precedent to the acceptance of Ext. P1 was the payment of the balance wages. On 22-4-1963 the amount was, no doubt, not paid. The same day the first accused sent Ext. D 18 letter to the Labour Officer stating that they were, withdrawing from the agreement Ext. P1 and renewing direct action. However on 23-4-1963 P. W. 4 paid the arrears of wages evidenced by Ext. D 6 series and the first accused sent a communication Ext. D19 intimating that the direct action is withdrawn. 14. On 27-4-1963 the union sent another letter again insisting on the wages being settled every day and paid directly by the principal society. To this on 30-4-1963 the principal society sent Ext. D 9 letter making the position very clear that the settlement of 1-4-1963 was only regarding the enhancement of the wages and that in the subsequent settlement dated 21-4-1963 the union had unconditionally and categorically agreed to receive the wages from the agent society and that they cannot resile from the agreement. The real dispute at the time of the settlement Ext. The real dispute at the time of the settlement Ext. P1 was only as to the mode of payment that it must be paid direct by the principal society. That it is so is clear from Ext. D20 a report by P.W. 4 to the Labour Commissioner. It was stated therein that the rival union's stand was that Ext. P1 dated 21-4-1963 was not binding on them and that they would hand over the rice bags held in their boats only if the principal society paid their wages directly. There was at no time any complaint that the agent society was unwilling to pay or had refused to pay and the case of P. W. 2 the president of the agent society is that they were willing to pay but the Union would not receive wages from them. The evidence also shows that the principal society had paid daily advances to the agent society. When questioned whether the rival union were not having a strike from 7th onwards P. W. 4 the Labour Officer has given the reply that it was not so, because he stated there was no pending industrial dispute as the dispute about wages had been settled on 1-4-63 and the mode of payment was also settled under Ext. P.1 on 21-4-63 and payments were not made as the union refused to receive payment from the agent society. So it cannot be said that the first accused's union had any justification for resorting to the so-called strike on 7-5-63. 15. S.23 of the Act says: "No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such works shall declare a lockout (a) xx xx xx (b) xx xx xx (c) during any period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award." From what has been stated above it is clear that the strike was not in relation to any other matter not covered by the settlement, but only as to the mode of payment which had already been concluded by the settlement. Any strike or lockout in contravention of S.22 or S.23 is declared illegal by S.24 of the Act. 16. Any strike or lockout in contravention of S.22 or S.23 is declared illegal by S.24 of the Act. 16. Dealing with hasty action and starting of strikes without resorting to the normal and reasonable course provided by law the Supreme Court in the case in Chandramalai Estate, Ernakulam v. Its workmen (1960-2 L.L.J. 243) observed: "After all it is not the employer only that suffers if production is stopped by strikes. While on the one hand it has to be remembered that strike is a legitimate and sometimes unavoidable weapon in the hands of labour, it is equally important to remember that indiscriminate and hasty use of this weapon should not be encouraged. It will not be right for labour to think that for any kind of demand a strike can be commenced with impunity without exhausting reasonable avenues for peaceful achievement of their objects. There may by cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect labour to wait till after asking the Government to make a reference. In such cases strike even before such a request has been made may well be justified. The present is not however one of such cases. In our opinion the workmen might well have waited for some time after conciliation efforts failed before starting a strike and in the meantime to have asked the Govt. to make the reference." Thus there is in my view no escape from the conclusion that the strike was unjustified and illegal and the union has failed to substantiate that they had lawful excuse for starting the strike. 17. Learned Sessions Judge does not say that the settlement Ext. P1 is a nullity and could, therefore, be ignored. He finds that the required notice under S.19 was not given but what the learned judge says is that notice under S.19(2) could be waived by the parties entitled to receive notice and from the conduct of the parties in this case such waiver could be inferred. Reference has been made to the decision in Workmen of Continental Commercial Company v. Govt. of West Bengal (1962-1 L.L.J. 85). A perusal of the facts of that case would show that it has no application to the facts of this case. Reference has been made to the decision in Workmen of Continental Commercial Company v. Govt. of West Bengal (1962-1 L.L.J. 85). A perusal of the facts of that case would show that it has no application to the facts of this case. What the High Court held in that case was that a charter of demand asking for revision of service condition covered by a settlement would only amount to a tacit representation by workmen not to remain bound any more by the settlement and, therefore, the provision of S.19 (2) of the Act has to be complied with. It was, however, held that the notice under S.19(2) of the Act could be waived by the party to whom the notice is to be sent and in view of the fact that the company in the instant case took part in the subsequent conciliation proceedings and also made certain counter-offers and as it never took any objection in the course of the conciliation proceedings or even before the Industrial Tribunal that the old settlement was in force it must be taken that it waived the notice of termination of settlement as contemplated under S.19(2) of the Act. Here even though the union was insisting that the payment should be made by the principal society, at no time had the principal society participated in any proceedings to change the mode of payment, reached in Ext. P1 and in fact had written to the union that they were bound by the terms of Ext. P1. Learned Judge was not right in thinking that if Ext. P1 was in force on 23-4-1963 payment would not have been made by P.W. 4 and the receipts obtained by him. Payment under Ext. D6 series was in respect of back wages and payments were made by P.W. 4 in pursuance of the letter. P.W. 4 the Labour Officer does not say that there was any subsequent conciliation proceedings and he has stated that so long as Ext. P.1 was in force the union was bound to receive wages from the agent society and not having agreed to receive wages from the agent society it will not be open to them to make a grievance that from 7-5-1963 till 17-5-1963 no payment was made. There is thus no justification for the conclusion of the learned judge that the so-called strike is justified. 18. There is thus no justification for the conclusion of the learned judge that the so-called strike is justified. 18. Payment of wages is governed by the Payment of Wages Act 4 of 1963. S. 5(1) says: "The wages of every person employed upon or in (a) (b) any other railway, factory or industrial establishment shall be paid before the expiry of the tenth day after the last day of wage period in respect of which the wages are payable." S. 4 says: "Every person responsible for the payment of wages under S.3 shall fix periods in respect of which such wages shall be payable and that no wage-period shall exceed one month." The union has failed to prove that the principal society or agent society had fixed any wage period. If, therefore, the workers and the union are not entitled to daily wages then no further question of any arrears of wages or a lien for realisation of the wages would arise. The union had agreed to receive wages from the agent society and having refused to receive the same from the agent society it is not open to them to contend that there was any arrears and claim that they have got a lien on the goods. The findings of the learned judge in para 25 that what the appellants had done cannot be said to be without lawful excuse is therefore clearly wrong and having failed to prove that there is any lawful excuse the accused would be guilty of the offence under R.41 of the Defence of India Rules. The acquittal of the accused is therefore, unsustainable in law and has to be set aside. 19. Learned counsel for the accused finally argued that being an appeal against the order of acquittal there are no grounds to show that the trial court has grossly misconducted itself in the appreciation of the evidence on record, and there are no substantial or compelling reasons to set aside the order of acquittal. The powers of the appellate court in an appeal against acquittal had been dealt with in the decision of the Privy Council in Shee Swarup v. King Emperor (AIR. 1934 P.C. 227). The principles enunciated therein were subsequently affirmed and reiterated by the Supreme Court in a series of cases. In some of these cases, their Lordships have emphasised the necessity of interference only on'substantial and compelling reasons'. 1934 P.C. 227). The principles enunciated therein were subsequently affirmed and reiterated by the Supreme Court in a series of cases. In some of these cases, their Lordships have emphasised the necessity of interference only on'substantial and compelling reasons'. What really is 'compelling and substantial reason' has been made clear in the decision in Harbans Singh v. The State of Punjab (AIR. 1962 S.C. 439) where Das Gupta, J., speaking for the Bench has observed as follows: "But, on a close analysis, it is clear that the principles laid down by the court in this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the court of appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting judge is clearly unreasonable. Once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a 'compelling reason' for interference. For, it is a court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established". When the expression ‘compelling reason' is understood in the manner explained by the Supreme Court it is clear that the expression is not intended to place any restriction or impose any limitation on the appellate court's powers while hearing appeals against acquittal. Even in an appeal against the acquittal, the appellate court has full power to review the entire evidence on record and come to its own independent conclusion on the question as to whether such evidence is sufficient to conclusively establish the guilt of the accused. I have scrutinised the evidence in this case with great care and bearing in my mind the principles governing appeals against the order of acquittal I have come to the conclusion that there was evidence which would clearly make out the offence charged against the accused that they have not succeeded in discharging the burden which lay heavily on them under R.147 of the Defence of India Rules and that they have been wrongly acquitted, resulting in a miscarriage of justice. The order of acquittal is, therefore, set aside. The respondents (accused) in these appeals are found guilty and convicted of the offence under R.41 read with R.35 of the Defence of India Rules. As far as the sentence is concerned, I agree with the learned District Magistrate that in the peculiar circumstances of this case the ends of justice would be met if the accused are dealt with under S.4 (1) of the Probation of Offenders Act, XX of 1958 and they are ordered to be released on probation for one year on each of the accused entering into a bond for Rs. 2,000/- with two solvent sureties for each of the accused to keep the peace and be of good behaviour and appear and receive the sentence whenever called upon during the said period. Ordered accordingly. The appeals are allowed. Allowed.