Onkar Nath & Ors Vs. The Delhi
Administration [1977] INSC 56 (15 February 1977)
CHANDRACHUD, Y.V.
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
SHINGAL, P.N.
CITATION: 1977 AIR 1108 1977 SCR (2) 991 1977
SCC (2) 611
ACT:
Defence of India Rules 1971--Rule 118(1)(a)
r/w Notification dated 26-11-1973 prohibiting a strike "in connection with
any industrial dispute", ingredients of--Legal evidence must be led to
prove the ingredients of an offence.
Judicial notice--Whether the courts can take
judicial notice of facts namely "a railway strike was imminent" and
such a strike was, in fact, launched on May 8, 1974 "in a trial for an
offence of "exciting workmen to go on strike"--Section 46 and 57 of
the Evidence Act (Act 1 of 1872), 1872.
HEADNOTE:
In respect of an alleged speech made, on May
5, 1974, at a meeting held in Tughlakabad Railway Station Yard inciting workers
to go on strike from May 8, 1974, the appellants who were leaders of the
Northern Railwaymen's Union were convicted by the learned Metropolitan Magistrate
under Rule 118 and 119 of the Defence of India Rules and sentenced to six
months rigorous imprisonment. The order of conviction was upheld in appeal by
the Sessions Court but in revision, the Delhi High Court while upholding the
conviction reduced the sentence to the period already undergone.
In appeal by special leave to this Court, the
appellants contended (1) There was no legal evidence to warrant the conviction;
(2) The courts below were not justified in taking judicial notice of the fact
that on the date when the appellants delivered their speeches a railway strike
was imminent and that such a strike. was, in fact, launched on May 8, 1974 and
(3) The conduct attributed to the appellants does not fall within the mischief
of the order because inciting other workers to go on strike is outside the definition
of the word "strike" contained in rule 118(3)(b) of the Defence of
India Rules, 1971.
Allowing the appeal by special leave, the
court,
HELD: (1) The courts below were justified in
assuming without formal evidence that the railway strike was imminent on May 5.
1974 and that a strike intended to paralyse the civic life of the nation was
undertaken by a section of workers On May 8, 1974. [995A-B] (2) The purpose of
s. 57 of the Evidence Act is to provide that the court shall take judicial
notice of certain facts rather than exhaust the category of facts of which the
court may in appropriate cases take judicial notice. Recognition of facts
without formal proof is an act of expediency. Shutting the judicial eye to the
existence of such facts and matters is in a sense an insult to commonsense and
would tend to reduce the judicial process to a meaningless and wasteful ritual.
No court insists on a formal proof by evidence of notorious facts of history--past
or present and events that have rocked the nation need no -roof and are
judicially noticed. judicial notice in such matters takes place of proof and is
of equal force. [994F-H, 995-A] (3) The Government possesses the power to issue
an appropriate order under rule 118(1) prohibiting the strike "in
connection with any industrial dispute" even if there is no existing
industrial dispute because the owner can be exercised prophylactically by
preventing a strike in connection with an imminent strike. [995C-D] (4) In
order to maintain a charge under rule 118(1) of the Defence of India Rules,
1971, the prosecution has to establish not only that a strike was imminent or
had actually taken place of which indicial notice may be taken but further that
the strike was in connection with the industrial dispute which is a matter of
evidence. [995E-F] 992 (5) What is chargeable as contravening the prohibition
must under the order issued by the Government of India under Rule 118(1)(a) is,
in the circumstances of this case, the words used by the speakers and not the
gist of the speeches made by a member of the audience. A summary of speech may
broadly and generally not be inaccurate and it may' not faithfully reflect what
the speaker actually said and in what context. [994D-E] (6) Rule 118(1)(a)
limits the power of the Government to issue an appropriate order, general or
special, for prohibiting inter alia, a strike in connection with any industrial
dispute. Since the rule does not empower the Government to issue an order
prohibiting strikes generally, whet.her it is in connection with the industrial
dispute or not, there can be no contravention of the order unless it is
established by evidence that the strike was in connection with an industrial
dispute. In the instant case, the prosecution did not lead any evidence to
prove this important ingredient of the offence and the generalisation made by
the witnesses in their evidence is wholly inadequate for accepting that the
appellants gave incitement to a strike in connection with any industrial
dispute. [995F-G] (7) The contention of the prosecution that what is contemplated
by rule 118 (1)(a) itself is a strike in connection with an industrial dispute
and, therefore, it is not necessary for the prosecution to establish that the
strike was in connection with any industrial dispute is neither warranted nor
supported by anything contained in sub-rule (3) of rule 118 which defines
expressions "industrial dispute" and "strike". [995H,
996A-B] [In view of the finding that the evidence led by the prosecution is
insufficient to establish the charge, in the instant case, the court thought it
unnecessary to consider the question whether the conduct attributed to the
appellants fall within the mischief of the order dated 26-11-1973, since
inciting other workers to go on strike may be outside the definition of the
words "strike" contained in Rule 118(3)(b) of the Defence of India
Rules, 1971." The court, however, pointed out that the appropriate
provision of the Defence of India Rules under which an incitement to strike as
in the instant case may be punished in Rule 36(6) read with Rule 43(1)(a).]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 502 of 1976.
(Appeal by Special Leave from the Judgment
and Order dated 16-9-1975 of the Delhi High Court in Criminal Revision No. 139
of 1975).
A.K. Gupta, for the appellants.
G. Das, and R.N. Sachthey, for the
respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, J.--The appellants who are Railway employees, were convicted by
the learned Metropolitan Magistrate, Delhi under rules 118 and 119 of the
Defence of India Rules, 1971 and were sentenced to six months' rigorous
imprisonment. The order of conviction was upheld in appeal by the learned
Additional Sessions Judge and in revision by the Delhi High Court with the
difference that whereas the former upheld the sentence too, the latter has
reduced it to the period already undergone. In this appeal by special leave the
Iegality of conviction is questioned by the appellants.
The case of the prosecution is that the
appellants are leaders of the Northern. Railwaymen's Union and that on May 5,
1974 they 993 held a meeting in Tughlakabad Railway Yard inciting railway
workers to go on strike from May 8. This is alleged to be in breach of the
order passed by the Government of India under rule 118(1) of the Defence of
India Rules, 1971. That rules reads thus:
"118. Avoidance of strikes and lockouts.--(1)
If in the opinion of the Central Government or the State Government it is
necessary or expedient so to. do for securing the defence of India and civil
defence, the public safety, the maintenance of public order or the efficient
conduct of military Operations, or for maintaining supplies and services
essential to the life of the community, nothwithstanding anything contained in
any other provisions of these rules, the Central Government may, by general or
special order, applying generally or to any specific area and to .any
undertaking or class of undertakings, make provision-(a) for prohibiting,
subject to the provisions of the order, a strike or lock-out in connection with
any industrial dispute;
(b) for requiring employers, workmen, or
both, to observe for such period as may be, specified in the order such terms
and conditions of employment as may be determined in accordance with the order:
Provided that no order made under clause (b)
shall require any employer to observe terms and conditions of employment less
favourable to. the workmen than those which were applicable to them at any time
within three months preceding the date of the order." By sub-rule (2), if
any person contravenes any order made under sub-rule (1) he shall be punishable
with imprisonment for a term which may extend to three 'years or with fine or
with both.
The order issued under rule 118(1)(b) by the
Government of India in its Ministry of Labour on November 26, 1973 recites that
in the opinion of the Central Government it was necessary and expedient for
maintaining supplies and services essential to the life of the community to
prevent strikes in the Railway Services 'and that therefore "the Central
Government hereby prohibits a strike in connection with any industrial
dispute/disputes in the said Railway Services in India for a period of six
months w.e.f. the 26th November, 1973." In support of its case the
prosecution examined three witnesses called S.D. Sharing, Dilbagh Rai and
jasbir Singh.
Sharma's evidence is in the nature of hearsay
and indeed he admits in so many words that his knowledge regarding the
incitement given by the appellants to the Railway workers to go on strike was
derived solely from information received by him. The witness admits that he had
no personal knowledge that the appellants had held any meeting nor had 994 he
heard their speeches. The second witness Dilbagh Rai was in charge of the
Police Post at Tughlakabad Railway Station and was entrusted with the
investigation of the case. In the nature of things he too has no personal
knowledge of what the appellants did or said.
Jasbir Singh who was in charge of the Diesel
Shed at Tughlakabad is in the circumstances the only witness whose evidence
could, if at all, help the prosecution to establish the charge that the
appellants had contravened the order issued by the Government of India under r.
118(1)(a) of the Defence of India Rules, 1971. But even that evidence, in our
opinion, is inadequate for proving the charge levelled against the appellants.
Jasbir Singh claims to have attended a meeting addressed by the appellants but
he has not stated as to what exactly the appellants said in the meeting. He has
given his own gist or summary of what the appellants meant to convey to the
audience stating that they incited the workers to go on strike and threatened
them with dire consequences if they did not respond to the call. Such a broad,
resume is not safe to rely upon for holding the charge proved. In view of the
total absence of evidence showing what the appellants in fact said in the
meeting, the summary coined by Jasbir Singh of the happenings in the meeting
cannot form the basis of conviction. What is chargeable as contravening the
prohibition imposed under the order issued by the Government of India under r.
118(1)(a) is in the circumstances of this case the words used by the speakers
and not the gist of the speeches made by a member of the audience. A summary of
a speech may broadly and generally not be inaccurate and yet it may not
faithfully reflect what the speaker actually said and in what context.
Therefore, we would prefer not to rely on the
gist given by the witness without knowing the data on the basis of which the
gist was given. The charge must therefore fail.
One of the points urged before us is whether
the courts below were justified in taking judicial notice of the fact that on
the date when the appellants delivered their speeches a railway strike was
imminent and that such a strike was in fact launched on May 8, 1974. Section 56
of the Evidence Act provides that no fact of which the Court will take judicial
notice need be proved. Section 57 enumerates facts of which the Court
"shall" take judicial notice and states that on all matters of public
history, literature, science or art the 'Court may resort for its aid to
appropriate books or documents of reference. The list of facts mentioned in
section 57 of which the Court can take judicial notice is not exhaustive. and
indeed the purpose of the section is to> provide that the .Court shall take
judicial notice of certain facts rather than exhaust the category of facts of
which the Court may in appropriate cases take judicial notice. Recognition of
facts without formal proof is a. matter of expediency and no one has ever
questioned the need and wisdom of accepting the existence of matters which are unquestionably
within public knowledge. (see Taylor 11th edn. pp 3-12; Wigmore sec 2571
foot-note; Stephen's Digest, notes to Art, 58; Whitley Stokes' Anglo-Indian
Codes Vol. II p. 887). Shutting the judicial eye to the 995 existence of such
facts and matters is in a sense an insult to commonsense and would tend to
reduce the judicial process to a meaningless and wasteful ritual. No Court
therefore insists on formal proof, by evidence, of notorious facts of history,
past or present. The date of poll, the passing away of a man of eminence and
events that have rocked the nation need no proof and are judicially noticed.
Judicial notice, in such matters, takes the place of proof and is of equal
force. In fact, as a means of establishing notorious and widely known facts it
is superior to formal means of proof. Accordingly, the Courts below were
justified in assuming, without formal evidence, that the Railway strike was
imminent on May 5, 1974 and that a strike intended to paralyse the civic life
of the Nation was undertaken by a section of workers on May 8, 1974.
But the matter does not rest there. Rule
118(1)(a) empowers the Government to issue an order prohibiting a strike
"in connection with any industrial dispute". The Order issued by the
Government on November 26, 1973 recites, as required by the Rule, that the
Central Government prohibits a strike "in connection with any industrial
dispute" in the Railway Services in India for a period of six months.
Rule 118 (2) prescribes punishment for a
person who contravenes any order made under the Rule. We have no doubt that the
Government possesses the power to issue an appropriate order under Rule 118 (1)
even if there is no existing industrial dispute because the power can be
exercised prophylactically for preventing a strike in connection with an
imminent industrial dispute. But the prosecution must establish, in order that
the conduct charged as penal may fall within the mischief of the Order, that
the strike in regard to which the incitement was given was in connection with
an industrial dispute. Unless that is established, there can be no
contravention of the order issued by the Government, because the contravention
consists in doing what is prohibited by the order. And what is prohibited by
the order is a strike in connection with an industrial dispute. Thus the
prosecution has to establish not only that a strike was imminent or had
actually taken place, of which judicial notice may be taken, but further that
the strike was in connection with an industrial dispute, which is a matter of
evidence. Rule 118(1)(a) limits the power of the Government to issue an
appropriate order, general or special, for prohibiting inter alia a strike in
connection with any industrial dispute. Since the rule does riot empower the
Government to issue an order prohibiting strikes generally, whether they bear
any connection with an industrial dispute or not, there can be no contravention
of the order unless it is established by evidence that the strike was in
connection with an industrial dispute. The prosecution did not lead any
evidence to prove this important ingredient of the offence and the
generalisation made'by the witnesses in their evidence is wholly inadequate for
accepting that the appellants gave incitement to a strike in connection with
any industrial dispute.
It is urged by the learned counsel appearing
for the Delhi Administration, who are respondents to the appeal, that what is
contemplated by rule 118(1)(a) itself is a strike in connection with 996 an
industrial dispute and therefore it is not necessary for the prosecution to
establish that the strike was in connection with any industrial dispute. There
is no warrant for this submission and nothing contained in sub-rule (3) of rule
118 which defines the expressions "industrial dispute" and
"strike" lends support to the counsel's submission. It is well known
that strikes are sometimes undertaken for purposes unconnected with an
industrial dispute, as for example when the workers demand a closure of the
establishment on the demise Of a person of national importance. In fact,
strikes are not unoften launched for reasons which do not reasonably bear any
connection with an industrial dispute.
An argument was advanced before us on behalf
of the appellants that the conduct attributed to the appellants does not fall
within the mischief of the order because inciting other workers to go on strike
is outside the definition of the word "strike" contained in rule
118(3)(b) of the Defence of India Rules, 1971. It i,e. unnecessary to consider
this question in view of our finding that the evidence led by the prosecution
is insufficient to 'establish the charge levelled against the appellants. We
would however like to point out that the appropriate provision of the Defence
of India Rules under which an incitement to strike as in the instant case may
be punished is rule 36(6)(j) read with rule 43(1)(a). The former defines a
"prejudicial act" to include instigation or incitement for cessation
or slowing down of work by a body of persons employed in any place of
employment in which 100 persons or moro are normally employed, in furtherance
of any strike which is prohibited under rule 118 or is illegal under any law
for the time being in force. The latter provides that no person shall without
lawful authority or excuse do any prejudicial act. By rule 43 (5) a person who
contravenes any of the provisions of rule 43 is punishable with imprisonment
which may extend to 5 years or with fine or with both.
In the result we allow the appeal, set aside
the order of conviction and sentence and acquit the appellants.
S.R. Appeal allowed.
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