Lokur, J.:—

The applicant who is a communist and the secretary of the Railway Men's Union at Manmad, district Nasik, was tried by the Resident Magistrate, First Class, Manmad, for instigating a strike among the labourers in the Reserve Supply Base Depôt at Manmad and there by abetting the doing of a prejudicial act. He was convicted under r. 38(5) read with r. 121 of the Defence of India Rules, 1939, and was sentenced to suffer rigorous imprisonment for two years. His appeal to the Sessions Judge at Nasik having been dismissed, he has made this application for revision to have his conviction and sentence set aside. Five of the workmen who went on strike were also tried along with him. They were convicted under r. 38(5) of the Defence of India Rules and were given the benefit of s. 562(1) of the Criminal Procedure Code. They did not appeal against their conviction.

The Reserve Supply Base Depôt is a military depôt where commodities required for military purposes are stored and from where they are transported to places where they are required by military authorities. A large number of labourers are employed in the depôt for arranging, loading and unloading the commodities stored there, and a strike among them resulting in the cessation of work is bound to impede and delay the handling of transport and distribution of essential commodities. Such a strike is undoubtedly a prejudicial act as defined in, r. 34(h) of the defence of india rules.

It is not disputed that at about 8-30 a.m on May 12, 1943, a large number of labourers in the depôt went on strike. But the applicant denied at the trial that he instigated them to do so and alleged that he was on the contrary trying to persuade them to go on duty. On the evidence, it has been found that he did instigate the labourers to go on strike, and that finding of fact cannot now be challenged.

Rule 38(1)(a) says that no person shall, without lawful authority or excuse, do any prejudicial act, and any one who contravenes this provision is punishable under r. 38(5). Rule 121 provides, inter alia, that any person who attempts to contravene, or abets, or attempts to abet, or does any act preparatory to, a contravention of, any of the provisions of the rules or of any order made thereunder, shall be deemed to have contravened that provision or, as the case may be, that order. Assuming that the strike was a prejudicial act and that the applicant instigated it, Mr. Sule argues that it is not proved that the prejudicial act was done “without lawful authority or excuse”. To appreciate this contention it is necessary to consider the circumstances which led to the strike.

The labourers employed in the Depôt were demanding higher wages and a cheap grain shop. Their wages were raised once in February, 1942, and again in September, 1942, but they were not satisfied. In March, 1943, they made a representation to the local authorities in the Depôt that the rise given to them was not enough and that their wages should be further increased. It appears that their request was referred to higher authorities in Delhi. Before any reply was received from Delhi, the labourers made a written request on April 8, 1943, that their wages should be increased. It is in evidence that on May 11, 1943, a reply was received from Delhi partially granting their request and raising their wages to some extent. The labourers being not satisfied with that much rise in their wages, the applicant advised them to go on strike. Accordingly on the next day, May 12, 1943, about 1,000 out of 1,200 employees went on strike. This act was undoubtedly a prejudicial act and the question is whether it was done without lawful authority or excuse.

It is not contended that the strike was authorised and it cannot by any stretch of imagination be said that the prejudicial act was done with any lawful authority. The learned Magistrate framed a specific issue as to whether the workers went on strike without lawful authority or excuse. But in recording his finding in the affirmative on that issue, he considered only the question as to whether there was any lawful authority for doing the prejudicial act, but lost sight of the question as to whether there was any lawful excuse for the workers to go on strike. That part of the issue does not appear to have been considered by the learned Sessions Judge at all.

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.

Although the Trade Disputes Act, 1929, and the Bombay Industrial Disputes Act, 1938, provide means for settlement of trade and industrial disputes in order to avoid strikes and lock-outs, it was thought necessary to have more elastic provisions during the war and r. 81A was added to the defence of india rules in January, 1942. That rule itself did not prohibit strikes, but on the other hand it indirectly recognised a strike as a legitimate means to obtain redress of the workers' grievances. But the rule empowered the Central Government, if it thought necessary or expedient so to do for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community, to make provision for prohibiting, subject to the provisions of the order, a strike or lock-out in connection with any trade dispute. In exercise of those powers the Central Government issued an order on August 21, 1942, providing, among other things, that “no person employed in any undertaking shall go on strike in connection with any trade dispute without having given to his employer within one month before striking not less than fourteen days' previous notice in writing of his intention so to do”. Rule 81A-(4) makes it an offence to contravene any order made thereunder, and prescribes the punishment for it.

In this case the evidence shows that on April 8, 1943, the employees made a written demand for a rise in their wages and they went on strike on May 12, 1943. That demand did not amount to a notice of their intention of going on strike within one month. It is, therefore, argued for the Crown that although that demand for a rise in the wages may be a reasonable excuse for the workers to go on strike, yet it was not lawful for them to do so without giving fourteen days' notice as required by the said order.

This contention presupposes that r. 81A and the order made thereunder are applicable to a strike by the workers in the Military Supply Base Depôt at Manmad. Rule 81A(5) says that the word “strike” in that rule shall have the meaning assigned to it in s. 2 of the Trade Disputes Act, 1929. In s. 2(i) of the Trade Disputes Act, 1929, “strike” is defined as a cessation of work by a body of persons employed in any trade or industry 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. The Depôt does not carry on any trade or industry. As already pointed out, it is a mere store-house of certain commodities and the workers are employed to arrange them and load and unload them when they are to be transported. Hence the cessation of work of the employees of the depôt does not fall under the definition of a strike. The prosecution must have realized this since the accused were not prosecuted under r. 81A(4) of the Defence of India Rules, but under r. 38(5).

A similar question arose in In re Appalaswamy. In that case the President of a labour union called a strike and dissuaded the workers from going to work in a mill engaged in producing war materials, not with the object of impeding the war effort but with the object of remedying the real or supposed grievances of the union with regard to the arbitrary dismissal of a worker without any inquiry, and it was held that the President and the union must be deemed to have had a “lawful excuse” for the strike, when they had no other method of redressing their grievance except by going on strike, though the President knew that as a result of the strike essential war work would be impeded. In acquitting the President, Horwill J. observed that strikes and lockouts, though clumsy and injurious, were the only existing means of deciding trade disputes, and that the calling of a strike was not illegal. It may be noticed that case was decided in July, 1942, before the order under r. 81A was issued by the Government of India in August, 1942, so that at the time of the strike dealt with in that case there was no requirement of a notice of fourteen days by those who intended to go on strike. In the present case also as we have already pointed out no such notice was required as r. 81A and the order thereunder do not apply to a strike by the workers in the Depôt which does not carry on any trade or industry.

It is argued that the demand made by the workers had been partially met and that their wages had been raised three times in the course of a year and that hence the excuse put forward by them to go on strike was unjust and unreasonable. But r. 38(1) prohibits the doing of a prejudicial act without lawful authority or excuse, and does not require that the excuse should be reasonable or just. On the other hand, s. 5(b) of the Essential Services (Maintenance) Ordinance, 1941, makes it punishable for any person engaged in any employment or class of employment to which the Ordinance applies, to abandon such employment or to absent himself from work without reasonable excuse. That section, however, applies to individual cessation of work, but not to a strike. So long as a strike is not prohibited by law, any excuse which is not unlawful would be sufficient to take it out of the category of the mischiefs contemplated by r. 38(1)(a) of the defence of india rules.

As held in Bundoo v. Emperor, in a charge under r. 38 of the Defence of India Rules, the prosecution is bound to prove that the act committed by the accused which is the basis of the charge against them was committed without lawful authority or excuse. And in the absence of proof that the excuse put forward by the strikers was not lawful, the applicants' conviction cannot be sustained.

We, therefore, make the rule absolute, set aside the applicant's conviction and the sentence passed upon him and order him to be acquitted and set at liberty.

Rajadhyaksha, J.:—I agree.

Rule made absolute.

Y.V.D