Mohammed and others vs V.P. Nair

K. Sadasivan, J.—Accused Nos. 1 to 9 who have been convicted by the Sub Magistrate of Tirur u/s 143 I.P.C. and S. 4 of the Essential Services Maintenance Act, 1968 (shortly stated the Act), have come up in revision. The conviction and sentence (fine of Rs. 25/- each) have been confirmed in appeal by the District Magistrate of Manjeri. The revision petitioners are employees of the Tirur head post office. On 19-9-68 the National Federation of P & T Employees Union organised a strike and in anticipation of the strike the government on 13-9-68 had promulgated an ordinance prohibiting all organised strikes by the employees of the essential services. u/s 4 and 5 of the Ordinance (which was subsequently followed by the Act), persons who participated in the strike or actively instigated others to strike were punishable with fine or imprisonment. On 19-9-68 when the strike was in progress Sri C. Mohammed, Deputy Post Master of Tirur head post office went to the Tirur post office at about 9.30 a.m. to attend to his official duties. The strikers did not allow him to enter the post office. The same was the fate of Sri. Sankaran Nair, Asst. Post Master who also tried to enter the office room of the post office. The accused had all kept out from the office and prevented others from entering the office. Thus, according to the complainant, the accused had committed offences punishable under sections 143, 341 and 353 read with S. 149 I.P.C. and sections 4 and 5 of the Essential Services Ordinance (now the Act). The complaint was first lodged before the Tirur police; but no action was taken by them and ultimately the complaint was referred as false. Therefore on 14-12-68 a complaint was preferred before the Magistrate and it was taken on file as C.C. 1634/68 under the Penal Code and the Essential Services Ordinance. The learned Sub Magistrate, at the conclusion of the trial found the accused guilty of the offence under S. 143 I.P.C. and S. 4 of the Act and sentenced them each to pay a fine of Rs. 25/-. They were found not guilty of the other offences, with which they were charged. In appeal the learned District Magistrate allowed fresh evidence to be adduced by the complainant and accordingly the Superintendent of post office, who was examined as Pw.1 was recalled and examined as Pw.1 and the gazette notification issued under the Act prohibiting strikes in the essential services including Post, Telegraph and Telephone services was proved through him. Before the Magistrate, in the course of the argument, the learned counsel for the appellants raised a point that the original notification had not been proved by the prosecution and as such the prosecution itself was unsustainable. It was to fill up this lacuna that the witness was recalled and examined; but I think the fresh evidence adduced has not served the purpose. In fact, it has helped only to widen the gap in the prosecution evidence and the prosecution must fail on that sole ground. The Supreme Court has held in Harla Vs. The State of Rajasthan, that:-- In the absence of any special law or custom, it would be against the principles of natural justice to permit the subject of a state to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence.

Sub-s. (2) of S. 3 of the Act provides the particular mode in which an Order or notification is to be published. The sub-section reads:--

(2) 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.

According to Pw.1, the superintendent, a particular mode of publishing Ex-R1 notification was decided upon and it was communicated to all subordinate officers. The mode prescribed was that the notification should be shown to each of the employees to be affected thereby and his acknowledgement taken. Pw.1 was asked in cross-examination "Have you notified any of the appellants about the contents of this notification?" His answer was, "yes, by a letter." He was further asked. "Have you taken acknowledgement from the appellants?" He answered, "I have instructed the subordinate officers to take acknowledgement of the receipt of the notification from all persons working under them. These acknowledgements might be available." But none of the acknowledgements has been produced in the case. In the circumstances, it has to be held that section 3(2) of the Act has not been complied with in the present instance. Mere proof of the issuance of the notification is not enough to pin the accused with knowledge of the notification. To saddle them with responsibility thereunder, a copy of the notification should individually be served on them and acknowledgement taken. In the absence of that as observed by the Supreme Court in Harla Vs. The State of Rajasthan, it would be a violation of natural justice and the accused cannot be penalised for any violation of the said notification. The complaint was filed u/s 4 and 5 of the Act which deal with the penalty provided for violation of the provisions of S. 3 and now that the mandatory direction of Sub-s (2) of S. 3 has not been complied with, the prosecution must be held to be unsustainable.

I would, therefore, set aside the conviction and sentence passed on the revision petitioners (accused) and acquit them. Fine, if realised will be refunded. The revision petition is allowed.