P. Govinda Menon, J.
1. These four appeals by the State arise out of the judgment of the Second Additional Sessions Judge of Trivandrum in Criminal Appeals Nos. 80, 87, 88 and 89 of 1963 acquitting the respondents-accused who were found guilty and convicted under Rule 41(5) of the Defence of India Rules read with Rule 35(6)(i) and (o) and dealing with them under Section 4(1) of the Probation of Offenders Act. Accused 2 and 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.
3. The Trivandrum Port and Headload Workers' Labour Contract Co-operative Society No. 4245 (hereinafter referred to as the principal society), is the authorized clearing contractors of the Government of India, Food Ministry. Another society, the Trivandrum Port Stevedores and Boat Workers' Labour Contract Co-operative Society, T. 211 (hereinafter referred to as the agent society), were the clearing agents under the principal society. P.W. 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. Accused 2 is the president and the accused 3 is the vice-president. The other accused were either workmen affiliated to the rival union or other sympathizers.
4. 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 May 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 May 1963 were loaded in thirteen 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.
5. On 17 May 1963 police aid was sought for. The Collector, the Revenue Divisional Officer, P.W. 3, the District Labour Officer, Port Conservator and some police officers were present at the place. P.W. 3 tried to pursuade 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. P.W. 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 P.W. 3, other witnesses who were present had witnessed the incident and given evidence about what had taken place on that day. P.W. 11, the circle inspector, arrested accused 1 to 3 on the spot. After completing the investigation accused were chargesheeted.
6. 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 pomplaint under the Defence of India Rules. They stated that the allegations against them were false. Accused 8 denied commission of the offence and stated that what lie did was to negotiate with the Regional Director of Food Supplies to have the cargo saved. Accused 4 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.
7. Learned District Magistrate who tried the accused found that the incident as spoken to by the prosecution witnesses has 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 Rule 35(6)(i) and (6), but found that what the accused did cannot be said to have been done ' without lawful excuse' within the meaning of Rule 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.
8. 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.
9. Rule 41(1) says:
No person shall, without lawful authority or excuse,-
(a) do any prejudicial act, * * *
10. We have then to see Rule 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 a 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.
11. 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. 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.
12. 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 A.I.R. 1942 Mad, 735 and the other In Dayaram v. Emperor A.I.R. 1944 Bom. 248 which took the view that lawful excuse means an excuse which is not unlawful, that is to say, not prohibited by law.
13. In the case in A.I.R. 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.
14. 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 Rule 38(1)(a) of the Defence of India Rules.
15. In the other case, A.I.R. 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. 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.
16. 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.
17. Both these decisions were considered in a later case in Abidalli v. Emperor A.I.R. 1947 Bom. 465, That was a case where the accused were convicted of an offence punishable under Rule 38(5) of the Defence of India Rules, 1939, Rule 38(1) lays down that no person shall, without lawful authority or excuse, do any prejudicial act. This corresponds to Rule 41 of the present Act.
18. Sen, J., stated:
Lawful authority clearly means an authority which is given or recognized 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 known 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 recognized 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. 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.
19. 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 recognized 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.
20. 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.
21. 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 Ex. P. 1, arrived at through conciliation.
22. Section 12 of the Act deals with conciliation proceedings.
23. 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 Section 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 the memorandum of settlement signed by the parties to the dispute. * * *
24. Once a settlement has been so arrived at between the employer and the employees under the provisions of Section 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.
25. Exhibit P. 1 is the settlement reached as a result of the conciliation held on 21 April 1963. Accused 1 and 2 representing the workmen and P.W. 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 Head-load Workers' Labour Contract Society, Ltd., through their agents, viz., the Trivandrum Port Stevedores and Boat Workers' Labour Contract Co-operative Society, Ltd.
(2) In case the abovementioned 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.
26. There is no case that it is not a valid settlement. Section 19(1) says that a settlement shall come into operation on such date as it 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, Ex. P. 1 settlement would come into force from 21 April 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 six months and shall continue to be binding until the expiry of two 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 Section 19(2) of the Act-vide the decision in Deccan Tile Worki v. their workmen 1960-II L.L.J. 298. There is no case here that any such notice was given.
27. 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 April 1963 a settlement Ex. D. 3 was arrived at. The terms of that agreement were:
(1) The management agrees to enhance the rate from Rs. 15.75 to Rs. 19 for 100 bags as ordered by the Government.
(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 April 1963.
(3) The balance will be paid on or before 1 June 1963.
(4) Accused 1's union agrees be withdraw all direct actions forthwith.'
28. 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 accused 1 union was not prepared to accept the amount from them and insisted on payment being made by the principal society. This dispute was in connexion 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 Ex. P. 1 it was agreed that payments due to workmen towards lighterage charges would be paid by the agent society.
29. 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 Bettlement in Ex. P. 1. 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 Ex. P. 1 was signed. It is true that on that day P.W. 4 had intimated to the secretary of the union by Ex. 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 April 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 Ex. P. 1. There is nothing in Ex. P. 1 to suggest that a condition precedent to the acceptance of Ex. P. 1 was the payment of the balance wages. On 22 April 1963 the amount was, no doubt, not paid. The same day accused 1 sent Ex. D. 18 letter to the labour officer stating that they were withdrawing from the agreement Ex. P. 1 and renewing direct action. However, on 23 April 1963, P.W. 4 paid the arrears of wages evidenced by Exs. D. 6 series and accused 1 sent a communication Ex. D. 19 intimating that the direct action is withdrawn.
30. On 27 April 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 April 1963 the principal society sent Ex. D. 9 letter making the position very clear that the settlement of 1 April 1963 was only regarding the enhancement of the wages and that in the subsequent settlement dated 21 April 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 Ex. P. 1 was only as to the mode of payment that it must be paid directly by the principal society. That it is so is clear from Ex. D. 20 a report by P.W. 4 to the Labour Commissioner. It was stated therein that the rival union's stand was that Ex. P., dated 21 April 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 7 instant 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 April 1963 and the mode of payment was also settled under Ex. P. 1 on 21 April 1963 and payments were not made as the union refused to receive payment from the agent society. So it cannot be said that accused 1 union had any justification for resorting to the so-called strike on 7 May 1963.
31. Section 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) * * *(b) * * *(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.
32. From what has been stated above it is dear 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 Section 22 or 23 is declared illegal by Section 24 of the Act.
33. Dealing with hasty action and starting of strikes without resorting to the normal and reasonable course provided by law, the Supreme Court in Chandramalai Estate, Ernakulam v. its workmen 1960-II 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 be 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 Government to make the reference.
34. 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.
35. Learned Sessions Judge does not say that the settlement Ex. P. 1 is a nullity and could, therefore, be ignored. He finds that the required notice under Section 19 was not given but what the learned Judge says is that notice under Section 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. Government of West Bengal 1962- I 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 Section 19(2) of the Act has to be complied with. It was, however, held that the notice under Section 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 Section 19(2) of the Act.
36. 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 Ex. P. 1, and in fact had written to the union that they were bound by the terms of Ex. P. 1. Learned Judge was not right in thinking that if Ex. P. 1 was in force on 23 April 1963 payment would not have been made by P.W. 4 and the receipts obtained by him. Payment under Exs. d. 6 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 proceeding and he has stated that so long as Ex. 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 to 17 May 1963 no payment was made. There is thus no justification for the conclusion of the learned Judge that the so-called strike is justified.
37. Payment of wages is governed by the Payment of Wages Act, 4 of 1963. Section 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.
38. Section 4 says:
Every person responsible for the payment of wages under Section 3 shall fix periods in respect of which such wages shall be payable and that no wage-period shall exceed one month.
39. 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 realization 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.
40. The finding 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 Rule 41 of the Defence of India Rules. The acquittal of the accused is, therefore, unsustainable in law and has to be set aside.
41. 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.
42. 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 A.I.R. 1934 P.O. 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 emphasized the necessity of interference only on 'substantial and compelling reasons.'
43 What really is 'compelling and substantial reason' has been made clear in the decision in Harbans Singh v. State of Punjab : AIR1962SC439 , 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.
44. 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 scrutinized 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 Rule 147 of the Defence of India Rules and that they have been wrongly acquitted, resulting in a miscarriage of justice.
45. The order of acquittal is, therefore, set aside. The respondents (accused) in these appeals are found guilty and convicted of the offence under Rule 41 read with Rule 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 Section 4(1) of the Probation of Offenders Act, 20 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.