1. The two applicants have been convicted by the Chief Presidency Magistrate of an offence punishable under Rule 38 (5) of the Defence of India Rules and applicant No. 1 (accused No. 1) has also been convicted under Rule 81 (a), Clause (a) read with Rule 121 of the said rules. The prosecution case was as follows. On April 3, 1945, a Police Sub-Inspector went to the head office of the Bombay Electric Supply and Tramways Company and saw leaflets being distributed there which were addressed to the members of the B.B.S.T. Workers Union and which bore the signature of accused No. 1, the President, and of accused No. 2, the General Organiser of the said Union. It was stated therein that there was a hartal all over India on the said date in order that 'the youths of Chimur and Ashti (who were under the sentence of death) might not be hanged,' and all workers of the B.B.S.T. Co. were requested to join in the said hartal for ten minutes from 6 to 6-10 p.m. In consequence of the said instructions a strike took place on the said day at the appointed time. The leaflets had been got printed by accused No. 1 and a copy of it was obtained by the Police Sub-Inspector from accused No. 2. On these facts, which were not disputed, the two accused, were tried for infringement of the provision in Rule 38(1) (a) of the Defence of India Rules, viz. that 'no person shall, without lawful authority or excuse, do any prejudicial act'. Rule 38(5) provides the penalty for such infringement. A 'prejudicial act' is defined in Rule 34 as any act which is intended or is likely, inter alia (to quote Clause (hh) of Sub-rule (6) of the said rule),-
To cause or produce, or to instigate or incite, directly or indirectly, the cessation of work by a body of persons employed in any place of employment in which one hundred persons or more are normally employed, except in furtherance of a trade dispute (as defined in the Trade Disputes Act, 1929) with which such body of persons is directly concerned.
It is not disputed that the B.E.S. & T. Co. employ more than one hundred persons at their head office, nor that the cessation of work in this case was not in furtherance of a trade dispute, as defined in the Trade Disputes Act. There. can be no doubt, on the evidence in this case, that both the accused directly caused and instigated or incited the cessation of work by a large number of the employees of the company and thus committed a prejudicial act. Rule 38 (1) (a) lays down that no person shall, without lawful authority or excuse, do any prejudicial act. There is nothing to show, nor has it been contended, that the strike in question was sanctioned or permitted by or under any lawful authority. The only question, therefore, which arose for decision, so far as the charge common to the two accused persons was concerned, was whether there was any 'lawful excuse' for doing the prejudicial act in question. Apart from authority, and on a plain reading of the language of Rule 38(1) (a) it appears to us quite evident that the word 'lawful' in the phrase 'lawful authority or excuse' must bear only one meaning, i.e., that it is not possible to assign to it two different meanings according as it is used in reference to the two words 'authority' and 'excuse'. The expression 'lawful' is capable of a positive as well as a negative meaning, viz. (1) allowed, created or recognized by law and (2) not prohibited by law. 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 excuses 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. 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.
2. The applicants, however, have relied on the decision of this Court in Emperor v. Kashinath Dayaram (1943) 40 Bom. L.R. 444 wherein it was held that the expression 'with lawful excuse' means having an excuse which is not unlawful, that is to say, not prohibited by law. In that case the Secretary of the Railwaymen's Union at Manmad was tried for instigating a strike in March 1943 among the labourers in a military depot where commodities required for military purposes were stored and from where they used to be transported to other places according to the requirements of the authorities. It was held that the strike was a prejudicial act as defined in Rule 34(6) (h) of the Defence of India Rules, under which an act intended or likely 'to impede, delay or restrict the means of transport or locomotion, any work necessary for the efficient prosecution of the war, the production, handling or transport of any munitions of war or the supply or distribution of any essential commodity' is a prejudicial act. There was rightly no reference in that case to Clause (hh) of Rule 34, Sub-rule (6), the said clause having been enacted on April 17, 1943, i.e., after the date of the strike. Mr. Justice Lokur, who gave the judgment, after construing the words 'lawful excuse' as meaning an excuse which is not unlawful, or not, prohibited by law remarked: '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'. There had been a prohibition of strikes in connection with trade disputes in an order of the Government of India passed under Rule 81A in 1942 subject to a certain condition, but it was held that the strike in question, had not been in connection with a trade dispute. Thus strikes of the kind under consideration had not so far been prohibited, but they would, in certain circumstances and with reference to the results they produced or tended to produce, be prejudicial acts. Lokur J. relied on In re Appalaswamy A.I.R . Mad. 735 where a strike had been called even before the prohibition of strikes in connection with trade disputes (subject to a certain condition) under Rule 81A. The accused in that ease were tried for an offence under Rule 38(5) but were acquitted by the High Court, the learned Judge remarking: 'Strikes and lock outs, though clumsy and injurious, are the only existing means of deciding trade disputes; and the calling of a strike has not yet been declared to be illegal.' In the state of the law then existing it could perhaps be said that the calling of a strike for the decision of a trade dispute (in that case a dispute as to the legitimacy of the dismissal of a worker without inquiry) was with a lawful excuse for the workers had resorted to a recognised mode or procedure for getting their grievance redressed. This recognised procedure, however, was subsequently made the subject-matter of at least two restrictive or prohibitory enactments or orders; in March 1942 the Central Government made an order under Rule 81 of the Defence of India Rules prohibiting strikes in connection with trade disputes without notice being given to the employer, within one month before striking not less than 14 days' previous notice in writing of the intention to strike; and on April 17, 1943, the Central Government inserted Clause (hh) in Sub-rule (6) of Rule 34 relating to strikes called not in connection with trade disputes.
3. It seems to me that the above enactments have so materially altered the law applicable to strikes that it is now not possible to follow the reasoning in Applaswamy's case, and I am not sure that if it had been necessary in Kashinath's case to consider the effect of the new Clause (hh) on the general right to call or join a strike Lokur J. 's decision or his reasoning would have been the same. So far as any right to call a strike might be said to be previously recognised, such recognition must be deemed to have been withdrawn to the extent that the calling of a strike was made a prejudicial act, and the same right cannot now be available as a lawful excuse for doing such an act. I, therefore, am disposed to think that on this ground we would be justified in distinguishing the present case from Kashinath's case and holding that the interpretation which we were inclined to put upon the expression 'lawful excuse', based on the language of the rule itself, must apply to the facts of this case. In our opinion the expression 'lawful authority or excuse' means an authority or excuse allowed or recognised by law. We think, therefore, that the learned Chief Presidency Magistrate was right in holding that the prejudicial act in this case was not done with lawful authority or excuse and in convicting the accused under Rule 38(5).
4. As to accused No. l's conviction under Rule 81A, Clause (a), the rule intended appears to be Rule 81A, the sub-rule applicable being Sub-rule (4). Under Rule 81A, the Central Government passed the order already referred to and relating to strikes in connection with trade disputes. Accused No. 1, not having called such a strike, cannot be affected by the said order, and his conviction under r. 8.1A is clearly not justified. We must, therefore, set aside that conviction and the sentence of a fine of Rs. 50 passed under the said rule. The result will be that the conviction of the accused under Rule 38(5) and the sentence passed on accused No. 1 thereunder are affirmed. The sentence passed on accused No. 2, therefore, deserves to be reduced to Rs. 50 and we order accordingly. We further direct that for default of the payment of fine each of the accused shall undergo simple imprisonment of seven days.