W. Broome, J.
1. Babu Ram and Sukhdeo Prasad, the applicants in this criminal revision; were convicted by a first class Magistrate of Bareilly for an offence under Sec 5 of the Essential Services Maintenance Ordinance 1960 and were sentenced to nine months' R.I. and a fine of Rs. 500/- each. In appeal the Second Additional Sessions Judge of Bareilly maintained the conviction but reduced the sentence to three month's R.I. and a fine of Rs. 100/- each.
2. The prosecution allegations are as follows : By a notification published in the Gazette Extraordinary of July 8, 1960, the Central Government, acting under the powers conferred by Section 3 of the Essential Services Maintenance Ordinance 1960, prohibited strikes in various essential services, including 'any railway service', and as a result, any person who instigated or incited others to take part in this kind of strike became liable to punishment under Section 5 of the Ordinance.
On 14.7.1960 the accused-applicants, who were employed by the N.E. Railway as gangman and pointsman respectively, instigated their fellow employees to strike by making speeches and shouting slogans on the platform at Bareilly City station al a place in front of the tea stall, not far from the waiting room A crowd which included several railway employees collected on the spot. The accused shouted: 'Rel ka chakka nahin chalega; hartal hamara nara hai', whereupon they were arrested by Head Constable Jiwan Lal (P.W. 1) and taken off to the police station.
3. The accused-applicants deny the prosecution allegations in toto and have produced negative evidence in defence; but the courts below, relying on the testimony of the prosecution witnesses (in particular Jiwan Lal and Banne, P.Ws. 1 and 3) have found the prosecution allegations to be fully substantiated and have convicted the accused accordingly.
4. I can see no reason to interfere with the findings of fact arrived at by the courts below and I am satisfied that the accused did actually shout the slogans quoted above to a crowd of persons, including railway employees, who had collected on the platform at the Bareilly City station on 14.7.1960. A feeble attempt has been made to argue that the aforesaid slogans were no incitement to strike but merely an expression of the accused's personal views; but the circumstances revealed by the evidence on record leave no room for doubt on this score. The accused, who were wearing badges and holding flags, were clearly taking part in an organised demonstration, whose only object could have been to incite railway employees to join in a general strike, so as to bring the railway service to a standstill.
5. Learned Counsel for the applicants has tried to make out that they were prejudiced by the defective nature of their examination under Section 342, Cri.P.C. but on perusing the record I can see no substance in this suggestion. The basic prosecution allegations were put to the accused on 18.7.1960, when they were first examined, and were totally denied by Sukhdeo Prasad while Babu Ram declined to make any statement at all. Then on 2.8.1960, after the evidence of the prosecution witnesses had been recorded, the accused were asked if they had anything further to say and gave the same replies as before. I can see no reason to think that they were in any doubt as to the precise nature of the charge which they had to meet, and I am not prepared to hold that the omission on the part of the Magistrate to put more detailed questions to them has resulted in any prejudice whatsoever.
6. It was further contended that the applicants had been denied the right to consult and be defended by a legal adviser of their choice, which is guaranteed by Article 22(1) of the Constitution. The record shows, however, that when the accused made an application to the trying Magistrate on 19.7.1960 asking for time to arrange for defence counsel, he remarked in the order passed thereon that 'jail itself adjoins vakalatkhana and every facility is given to use telephones even for counsel and he further observed: 'Now a peon may 'be deputed to summon the counsel when they name. This order was passed eight days Before 27.7.1960, when the first prosecution witnesses' evidence was recorded; and on that date a defence lawyer was to attendance, as is clear from the vakalatnama and applications on the file. The accused were thus granted ample facilities for contacting and engaging counsel and there can be no question of Article 22 having been infringed.
7. The main argument of learned Counsel for the applicants is against the validity of the Ordinance under which the accused have been convicted. This ordinance was promulgated in accordance with the powers conferred on the President by Article 123(1) of the Constitution, which runs as Follows:
If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
The contention is that this procedure can only be resorted to when there is some immediate necessity for action, whereas the Ordinance itself shows that there was no real urgency. In this connection reliance is placed on the wording of Section 3(1) of the Ordinance, which is in the following terms:
If the Central Government is satisfied that in the public interest it is necessary or expedient so to do, it may, by general or special order, prohibit strikes in any essential service specified in die Order.
This, it is argued, meant that action was to be deferred until the Central Government has made up its mind regarding the necessity for such action, and therefore there could have been no immediate urgency, which alone could justify the President's promulgating an Ordinance under Article 123. According to learned Counsel for the applicants, if the President was satisfied that immediate action was necessary, he should have himself issued orders banning the strikes straightway, instead of delegating the power to make the decision to the Central Government.
It seems to me however, that this interpretation of Article 123 is far too narrow and unduly circumscribes the wide powers vested in the President under the Article. The satisfaction of the President regarding the existence of circumstances that render it necessary for him to take immediate action is a subjective matter, which cannot be probed or questioned in a court of law; and the precise nature of the action that he may decide to take in such circumstances is also left to his discretion and cannot be challenged. In the present case the immediate action which the President deemed necessary wag not to ban the general strike himself but to arm the Central Government with the necessary powers to issue such a ban; and I see no reason to hold that immediate action of this kind is not within the scope of Article 123.
8. Learned Counsel for the applicants goes on to argue that Section 3(1) of the Ordinance is unconstitutional and void, because it grants the Central Government an arbitrary power to decide whether to take or not to take action, thereby offending against Article 14 of the Constitution. But as pointed out by the Supreme Court in In re Kerala Education Bill 1957 AIR 1958 SO 956.
discretionary power is not necessarily a discriminatory power and the abuse of power by the Government will not be lightly assumed
Again, in Ram Krishna Dalmia v. S.R. Tendolkar : 1SCR279 , the following observations are to be found, regarding the wide discretion left to the Government under the Commission of Inquiry Act, 1952;
this Court not being in possession of all the facts will, we apprehend, be slow to adjudge the executive action to be bad and illegal. We are not unmindful of the fact that a very wide discretionary power has been conferred on the Government and, indeed^ the. contemplation that such wide powers in the hands of the executive may in some cases be misused or abused and turned into an engine oft oppression has caused considerable anxiety in our mind. Nevertheless, the bare possibility that the powers may be misused or abused cannot per se induce the court to deny the existence of the powers. It cannot be overlooked that Parliament has confided this discretion, not; to any petty official but to the appropriate Government itself to take action in conformity with the policy and principle laid down in the Act.
Similar considerations must prevail in the present case and I see no justification for striking down Section 3(1) of the Ordinance merely because it giants, wide discretionary powers to the Central Government.
9. A subsidiary argument advanced in this connection was that it was open to the Government to take alternative action against illegal strikes under the law relating to industrial disputes and that consequently there Was actually no necessity for resort to the Ordinance; but I see as need to consider this aspect of the matter for in any case the limited material available on this record affords no basis for holding that there actually was any scope for alternative action.
10. The validity of the Ordinance is further challenged on the ground that it infringes the fundamental right guaranteed by Article 19(1)(g) of the Constitution. This argument is based on the definition of 'strike' given in Section 2(1)(b) of tile Ordinance, which runs as follows:
Strike means cessation of work by a body of persons employed in any essential service acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment.
This definition, it is argued, means that where a strike in a particular essential service has been declared illegal, refusal on the part even of outsiders to accept employment in that service will become punishable; and this, it is urged, is an infringement both of Article 19(1)(g) and also of Article 23, which prohibits forced labour. It seems to me however that the words 'accept employment' should not be construed as meaning 'accept recruitment'. The definition clearly refers only to those persons 'who are or have been employed' in essential services and cannot be stretched so as to include persons not yet employed. The only persons who could be punishable for participation in a strike as defined above would be those already in employment in an essential service who refuse to continue to work or refuse to do the jobs assigned to them; and there can be no question of outsiders being pressed into employment.
Another line of attack pursued in this connection is that the definition o 'strike' is so wide that even the cessation of work by four or five persons, because of some legitimate private grievance against a foreman or overseer could be declared to be an illegal strike and the participants therein would be liable to punishment. This, it is urged, would constitute an unreasonable restriction on the right of carrying on one's profession or occupation that is guaranteed by Article 19(1)(g). But there can be no presumption that the Central Government would exercise its discretion in this unreasonable manner. On the contrary we must assume that when discretion is vested in the Government and not in a minor official, there Will be no abuse of power and that action will be taken in conformity with the policy underlying the Ordinance in question Moreover we must not lose sight of the fact that this Ordinance was promulgated in a time of national emergency when the Government had to meet the threat of a crippling general strike in essential services that might have brought the whole administration to a standstill; and in such circumstances I am not prepared to hold that the powers which the Ordinance conferred were disproportionately wide or that they constituted an unreasonable inroad into the fundamental rights of citizens.
11. The final argument advanced on behalf of the accused is that they cannot be held criminally liable in this case because there is no proof on the record that they had knowledge of the notification issued on July 8, 1960, under the Essential Services Maintenance Ordinance on the date when they committed the alleged offence. I may point out however, that neither of the accused-applicants ever put forward the plea at the time of their trial that they had been ignorant of the Ordinance and the notification. Section 3(2) of the Ordinance directs that
an order made under Sub-section (1) shall be published in such manner as the Central Government considers best calculated to bring it to the notice of the persons affected by the Order.
and the Government seems to have taken the view that the most convenient and efficacious mode would be by publication in the official Gazette.
It is of course obvious that the accused-applicants fire unlikely to have read a, copy of the Gazette itself; but we can safely assume that the threatened strike on the railways and the steps taken by the Government to meet that threat were given wide publicity throughout the country in the newspapers and over the radio and I find it hard believe that on 14.7.1960 any member of the general public residing in towns served by the railways (let alone railway employees, who were vitally interested in the controversy that was going on) could have remained ignorant of the fact that strikes on the railways had been prohibited. There is thus no force in the contention now put forward at this late stage that the accused were unaware of the notification at the time when they committed the offence.
12. This revision application is accordingly rejected, the conviction and sentences of the accused-applicants being confirmed. They are at present on bail, but shall surrender forthwith to serve out the remainder of their sentences; and the stay of realisation of the fines granted on 17.3.1961, is vacated.