S.N. Guha Ray, J.
1. This petition in revision is directed against an order by which all the petitioners were convicted under Section 27, industrial Disputes Act on two counts, the first committed on 29-7-53 and the second on 16-8-53, petitioners Nos. 1 & 2 being each sentenced on each count to a fine of Rs. 25/- only or in default, to a week's simple imprisonment, and petitioners Nos. 3 and 4 each to a fine of Rs. 100/-only on each count or simple imprisonment for 30 days in default. There was an unsuccessful appeal by them.
1a. B. K. Pain, petitioner No. 3 and Abdul Hakim alias Moku mistry, petitioner No. 4 were admittedly the General Secretary and the President respectively of the Bengal Kagajkal Majdoor Union which counted among its members the workers of Mills No. 2 of the Titaghar Paper Mills Co. at Kankinara, of which Bookless, P. W. I was admittedly the Manager and Superintendent and petitioners Nos. 1 and 2 Ram Naresh and Idris were admittedly workers. It is further an admitted fact that industrial disputes known as the 9th and the 10th Adjudications which started on the 10th July and 10th September respectively of 1952 were pending on both the dates, namely 29-7-53 and 16-8-53. Two sets of charge-sheets were admittedly submitted against 8 ash coolies during the pendency of these adjudications, one for their adoption of go-slow tactics, disobedience and the other for assaulting the Chief Engineer. Bookless, P. W. 1 on 9-4-53 found these coolies guilty of the charges on inquiry and directed their suspension till the company secured permission from the Tribunal for their dismissal under Section 33(b) of the I. D. Act. This provided the occasion for an agitation on behalf of the workers demanding the withdrawal of the charge sheets, of the order of suspension, and of the application for permission and also the reinstatement of the workers Suspended. Bookless thought these demands to be unreasonable and, did not accede to them. Labour unrest in the Mills followed and the workers took up an attitude of non-co-operation. Attempts at conciliation failed. On 27-7-53, petitioner No. 3 B. K. Pain served a strike notice on Bookless who replied that the strike would be illegal in view of the pendency of industrial disputes before a tribunal and that the matter should be reconsidered. On the nest day, B. K. Pain informed Bookless that reconsideration was not possible and a notice was hung up at gate No. 1 of the Mills enumerating the demands of the workers. A conciliation meeting held on the 28th July in the presence of the Assistant Labour Commissioner was attended by the first three petitioners but their non-cooperative attitude did not permit any conciliation being brought about. On the 29th July, all the four petitioners instigated a strike and the workers left the departments in spite of the personal requests of Bookless to carry on the work. Ram Naresh and Idris who were themselves workers of the Mills joined the strike. Again on the 10th August, 1953, another strike notice was served by Pain and again Bookless informed him that it would be an illegal strike. On 14-8-53 Pain, wrote back to Bookless saying that the workers were not prepared to change their mind and on the 16th the petitioners again incited the workmen to go on strike and they did go on strike that day too. Ram Naresh and Idris amongst others went en strike that day also. On these facts all the four petitioners were charged with and convicted of an offence under Section 27, I. D. Act, on two counts, one for inciting the strike on 29-7-53 and the other for inciting the strike on 16-8-53. Ram Naresh and Idris who were liable under Section 26 also on each of these days were not charged with that offence in this trial.
2. The defence was a plea of not guilty. The learned Magistrate held on the evidence that the charges had been proved and the learned Sessions Judge on appeal concurred with that finding and maintained the convictions and the sentences.
3. The only points raised on behalf of the petitioners are :
1. There is no evidence to show that the petitioners instigated the strike on either day, the evidence of Bookless that they did so on the 29th July being directly in conflict with the evidence of P. ws. 2, 3, and 4.
2. The 16th August, 1953, was a Sunday and work on that day is optional on the part of the workers so that there could be no incitement to a strike on that day.
3. The authority given by the Government in this case under Section 34 does not show that the Government applied its mind to the particular offences for which the petitioners were tried and there is no difference in principle between a sanction for prosecution and an authority for it and reliance was placed on Jiwan Das v. Rabin Sen, (A).
4. The strikes were not illegal, first because they were not in breach of contract and secondly because of Section 24(3) as the so-called strikes were the consequences of an illegal lock out of the 8 ash coolies who were placed under suspension.
4. On the first point, namely, whether there is evidence on the record to prove that the petitioners instigated the strikes on 29-7-53 and again on 16-8-53, Mr. Sanyal does not appear to have been at all correct, for there is evidence which if believed, fully establishes the case against each of the petitioners. (After discussion of the evidence the judgment proceeds:) Both the learned Magistrate and the learned Judge believed this evidence and there is no reason at all why this Court in its revisional Jurisdiction should take a different view of the evidence. The first point therefore of Mr. Sanyal is without any substance.
5. Mr. Sanyal's second contention that the 16th August, 1953 being a Sunday, there was no question of any strike on that day is equally without substance. The attendance of a worker on Sundays is certainly optional but he can attend if he likes and as provided in the Standing Orders, if he does work on a Sunday, i.e., more than 48 hours a week, he is to be paid at double his usual basic rate, so that there is for workmen an incentive to work on Sundays. There can therefore, be an incitement to a strike even on Sundays if workers who are willing to work are incited not to do so and this is exactly what the petitioners were on the evidence held to have done.
6. The third point is as to the validity of the authority by which the Government directed Bookless to make the complaint. This authority is Ex. 11. It mentions the petitioners and the offences committed by them but there is no reference in it to any of the particulars of the offences for which Mr. Bookless was being authorised to make the complaint. If one confines one's attention to Ex. 11 alone, one certainly misses the particulars of the offence so that the infirmities from which the authority in (A), suffered, would
undoubtedly be there. But the memorandum under which a copy of this authority was sent to the Company refers to the Company's letter No. LRP/P.C. 72 dated 28-8-53. This letter is Ex. 10/1 and it fully sets out the facts on which the prosecution is based. Thus though the authority taken by itself does not indicate the particulars of the offences for which Mr. Bookless was being authorised to complain against the petitioners, If it is read along with Ex. 10/1. there can be" no room for doubt that the authority Ex. 11 was an authority for comnlaining against the petitioners for the selfsame offences with which they were charged in this trial. It is certainly desirable that an authority given under Section 34(1) should, as far as practicable, be self-contained but the mere fact that it is not, will not invalidate it, so long as evidence is available to link it up with the offences for which the prosecution is instituted on the Strength of it.
7. The fourth and last point of Mr. Sanyal is that the strikes in question were not illegal, first because they were not in breach of contract and secondly because the order of suspension of 8 ash coolies amounted to a lockout and the strikes of 29-7-53 and 16-8-53 being the consequence of this illegal lockout could not have been illegal. Section 23 I. D. Act is a general prohibition against strikes and lockouts, strikes in breach of contract being forbidden during the pendency, inter alia, of proceedings before a tribunal and lockouts being forbidden during the pendency of such proceedings. That the expression "breach of contract" in the section means breach of contract of service or employment and not a special contract not to go on strike is clear from the fact that while there must necessarily be a contract of service, express or implied between a workman and his employer, a special contract not to go on strike does not constitute an essential part of the contract between a workman and his employer, so that a contract of service may exist without any such special contract. If therefore, the legislature really sought to imply by this expression a special contract not to go on strike, it could reasonably be expected to say so in clear terms and the mere fact that it does not, would go to show that the expression could not possibly have been intended to mean the breach of any such special contract. Besides, if the expression "In breach of contract" in Sections 22 and 23 really referred to a contract not to strike, the prohibition in these two sections would be almost meaningless for there could not possibly be any strike in breach of contract where there is no such special contract at all or in other words, when workmen "strike" within the definition of the word in Section 2(q) but at the same time there is no special contract not to strike, the prohibitions In Sections 22 and 23 would not affect such strikes. Thus, a large part of the evil which Is a measure like the Industrial Disputes Act seeks to remedy would on this interpretation be left completely uncovered. According to ordinary canons of interpretation therefore, the construction which Mr. Sanyal seeks to put upon the expression must be discarded. There Is yet third consideration. It is this that the definitions of the words "strike" and "workman' in Sections 2(q) and 2(s) use expressions like "persons employed" and "any person employed" and these to my mind suggest that the contract spoken of in Sections 22 and 23 is the contract of employment and nothing more nor less. That in the contract of employment of every workman, there is an implied term that he will work according to the rules of the concern in question goes without saying and the Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946, particularly rule 10, would make this quite clear. The first Part therefore, of Mr. Sanyal's contention that the strikes on 29-7-1953 and 16-8-1953 were not in breach of contract must fail.
8. The second part of Mr. Sanyal's contention is that the order of suspension amounted to a lockout and therefore, the strikes would not be illegal, in view of the provisions of Section 24(3) which clearly lays down that a strike declared in consequence of an illegal lockout shall not be deemed to be illegal. The question therefore, that arises here is whether the order of suspension amounted in fact and law to an illegal lockout. If it amounted to a lockout at all, it would be illegal for the simple reason that it was during the Pendency of two adjudications before a Tribunal, A lockout, as defined in Section 2(1), means the closing of a place of employment or the suspension of work or the refusal by an employer to continue to employ any number of persons employed by him. Evidently, the order of suspension of 8 ash coolies does not amount to a closing of the place of employment or to a suspension of work. The only part of the definition therefore, which may conceivably cover the order of suspension of 8 ash coolies is the last part. The Order of suspension of the ash coolies was merely a provisional order which, to my mind, can only mean a suspension for the time being of the employment of these men or a provisional putting into abeyance of the position of these men as employees, although it could not amount to a final termination of their employment. As a matter of fact, the true effect of this order of suspension, provisional in its character, cannot be estimated till the final order of dismissal or discharge or of refusal to dismiss or discharge is passed. So long as the final order is not passed, it can only amount to a provisional putting into abeyance of the position of the men suspended us employees. Rule 19 (a) of the Standing Orders prescribes suspension as a legitimate form of punishment for certain acts of omission or commission. Of course, here suspension or temporary cessation of employment alone without an ultimate order of discharge or dismissal may be re-sorted to as a punishment as Rule 19 (b) indicates. That however, would not alter the character of an order of suspension as a temporary as distinct from a final, order of termination of employment. In this view, even the last part of the definition of a lockout will not be satisfied by this order of suspension, for the simple reason that as there was a temporary termination of their employment or as these workers ceased, under the order of suspension for the time being to be the employees of the Company by refusing to give them employment during the subsistence of that order, the Company cannot be said to have refused to continue to employ men employed by it or men who were still in its employ. There was thus no lockout and consequently, the strikes of 29-7-1953 and 16-8-1953 cannot be held to be strikes declared in consequence of an illegal lockout and as they were resorted to during the pendency of two disputes before an industrial Tribunal, they were clearly illegal under Section 24(1)(a).
9. In the result all the contentions of Mr. Sanyal must fail and the rule discharged.
J.P. Mitter, J.
10. I agree.