PETITIONER:
ONKAR NATH & ORS.
Vs.
RESPONDENT:
THE DELHI ADMINISTRATION
DATE OF JUDGMENT15/02/1977
BENCH:
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 Notifi-
cation dated 26-11-1973 prohibiting a strike "in connec-
tion 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 re-
duced 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 defi-
nition 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 immi-
nent 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. Recog-
nition of facts without formal proof is an act of expedien-
cy. 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 connec-
tion 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 actual-
ly taken place of which indicial notice may be taken but
further that the strike was in connection with the industri-
al 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 prohib-
iting 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 industri-
al 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 contem-
plated by rule 118 (1)(a) itself is a strike in connection
with an industrial dispute and, therefore, it is not neces-
sary 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 evi-
dence 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).]
JUDGMENT
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 employ-
ees, 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 imprison-
ment. 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 appel-
lants.
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 lock-
outs.--(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 Opera-
tions, or for maintaining supplies and
services essential to the life of the communi-
ty, 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 imprison-
ment 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 serv-
ices 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 attend-
ed a meeting addressed by the appellants but he has not
stated as to what exactly the appellants said in the meet-
ing. 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 speech-
es 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 enu-
merates 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 knowl-
edge. (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 no-
ticed. 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 supe-
rior 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 prohib-
its 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 con-
travenes any order made under the Rule. We have no doubt
that the Government possesses the power to issue an appro-
priate 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 impor-
tant 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 connec-
tion 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 establish-
ment 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 defi-
nition of the word "strike" contained in rule 118(3)(b)
of the Defence of India Rules, 1971. It i,s unnecessary to
consider this question in view of our finding that the
evidence led by the prosecution is insufficient to ’estab-
lish 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 impris-
onment 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.
997