Shankarbhai Kashibhai Patel v. Emperor

Beaumont, C.J:— This is an application in revision made by the accused who was convicted of an offence under Section 5(a) of the of the Essential Services (Maintenance) Ordinance, 1941, under the penal section, which is S. 7. The Essential Services (Maintenance) Ordinance was published on 20th December, 1941, under Section 72 in Sch. 9 of the Government of India Act of 1935. The Ordinance provides in S. 3 that it shall apply to all employment under the Grown and to any employment or class of employment which the Central Government or a Provincial Government, being of opinion that such employment or class of employment is essential 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 or services necessary to the life of the community, may, by notification in the official Gazette, declare to be an employment or class of employment to which the Ordinance applies. Section 4 enables orders to be made directing employees affected by the Ordinance not to leave a particular area. Section 5(a) provides that any person engaged in any employment or class of employment to which the Ordinance applies, who disobeys any lawful order given to him in the course of such employment, is guilty of an offence under the Ordinance. Then S. 7 provides penalties, and sub-sec. (3) directs that no Court shall take cognizance of any offence under the Ordinance except upon complaint in writing made by a person authorized in that behalf by the Central or a Provincial Government.

2. On 8th August, 1942, there was added to the Defence of India Rules, passed under Section 2 of the Defence of India Act, 1939 (the validity of which I assume for the purposes of this case) a new Rule 38-B, which provides that if in the opinion of the Provincial Government any local authority has used or is likely to use its local fund, or has employed or permitted or is likely to employ or permit, any of its officers, members or servants to act, in furtherance of any activity prejudicial to the defence of British India, the public safety, the maintenance of public order, the efficient prosecution of war, or the maintenance of supplies and services essential to the life of the community, or has passed any resolution approving of or supporting any such activity, or has failed to carry out any orders or directions lawfully made or given to it, the Provincial Government may by order supersede the local authority for such period as may be specified in the order; and then it is provided in sub-r. (2) that when an order of supersession has been made, all the powers and duties exercisable by or on behalf of the local authority shall, until the local authority is reconstituted as therein mentioned, be exercised and performed by such person or persons as the Provincial Government may direct. Acting under that rule the Government of Bombay by an order made on 21st August 1942, superseded the Municipality of Ahmedabad. The notification of the order provides that in exercise of the powers conferred by sub-r. (2) of R. 38-B of the Defence of India Rules, the Government of Bombay is pleased to direct that all the powers and duties which may, by or under any law for the time being in force, be exercised or performed by or on behalf of the Ahmedabad Borough Municipality shall, until the Municipality is reconstituted as therein mentioned, be exercised and performed until further orders by the Collector of Ahmedabad.

3. On 12th September, 1942, the Government of Bombay in exercise of the powers conferred by Section 3 of the Essential Services (Maintenance) Ordinance, 1941, being of the opinion mentioned in that section, declared employment in connexion with the maintenance, working or management of the Ahmedabad Municipality to be employment to which the Ordinance applied. So that at that date the provisions of the Ordinance applied to service under the Ahmedabad Municipality or the Administrator appointed to perform its duties. On the same date the Administrator of the Municipality was authorized to make orders under S. 4 of the Ordinance, and by a further/notification of the same date Government in exercise of the powers conferred by sub-s. (3) of S. 7 of the Ordinance, authorized the Administrator of the Municipality to make complaints in respect of offences under the Ordinance against any person engaged in any such employment in connexion with the maintenance, working or management of the Municipality. It appears that on 7th September, 1942, Mr. Whitworth arrived in Ahmedabad, and, according to his evidence, took charge of the duties of Administrator of the Municipality from the Collector of Ahmedabad, and, on 16th September, he passed an order for breach of which the present applicant was convicted. So far as material the order provides as follows:

Under the said Ordinance, I farther order that all persons employed in connexion with the maintenance, working or management of the said municipality to work properly and carefully and to dispose expeditiously of all tasks which have been or may be lawfully assigned to them in the course of such employment.

4. The present applicant was not willing to perform any work, and accordingly a complaint was filed on 16th September, by Mr. Whitworth. It is argued that the order made by Mr. Whitworth is somewhat vague in requiring employees to work properly and carefully and to dispose expeditiously of all tasks assigned to them, without specifying the nature of the work to be done. No doubt questions might arise whether work performed by a particular employee was done properly, carefully and expeditiously, but no question of that sort arises in the case of the present applicant, because he declined to do any work, and it has never been his case that he was willing to work, or did work, in the manner required by the order. The order was not, I think, too vague, and there is no substance in that argument. Nor, I think, is there any substance in another point taken by Mr. Thakor that the Ordinance has never been properly applied to the Ahmedabad Municipality, because Government did not declare what particular services in relation to the Municipality's duties were essential. In my opinion, it was quite sufficient for Government to declare that all services under the Municipality came within the description referred to in the Ordinance as being of an essential nature.

5. The only argument advanced on behalf of the applicant, which, in my opinion, has any force in it, and which, I think, must prevail is that it is not proved that Mr. Whitworth was appointed Administrator of the Ahmedabad Municipality before the date of the order of 16th September or before he filed his complaint. That point was taken in the lower appellate Court, but not before the trial Magistrate, but as it goes to jurisdiction, it can be taken in any Court. The learned Magistrate could not take cognizance of the offence except upon a complaint in writing made by a person authorised in that behalf by the Central or a Provincial Government, and it is essential, therefore, to show that the person authorised, who was in terms the Administrator, had been properly appointed in that capacity. It was argued by Mr. Thakor that in any case merely authorising the Administrator to file a complaint would not comply with the terms of S. 7, sub-s. (3), which require that the complaint must be made by “a person” authorised. If there had been any change in the holder of the office, there might be a question whether the order of Government was valid; whether, that is, it applied to the administrator for the time being. But, if at the time when Government authorised the Administrator to file a complaint, that person was Mr. Whitworth, then in my opinion he was the person authorised to file the, complaint, though not mentioned by name.

6. But the difficulty in Government's way is that they have not proved the appointment of Mr. Whitworth. We are asked in this Court to presume that he had been validly appointed under Section 114 of the Evidence Act, 1872, which provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. How can we draw such a presumption in view of the facts? On 21st August 1942, the powers of the Administrator were vested in the Collector of Ahmedabad, and I should certainly presume that if those powers had been taken out of that Officer's hands, and transferred to somebody else, there must have been an order to that effect, which could be easily proved. This is not like the cases cited by the Advocate-General where some person had been acting in an office for years, and it was held that his appointment might properly be presumed. We cannot presume that powers vested in one person on 21st August had been transferred to another person by 15th September when no order is produced. The only natural presumption from the failure to prove the making of an order appointing Mr. Whitworth as Administrator is that no such order was passed. That is so, seems to be tolerably clear from Government's notification of 5th October, 1942, in which in exercise of the powers conferred by R. 38-B, Defence of India Rules and in modification of the orders issued by Government notification of 21st August 1942, Government directs that the powers and duties which were assigned to the Collector of Ahmedabad were to be exercised and performed by Mr. Whitworth with effect from 7th September, 1942, that is from the date on which he took over charge from the Collector. The fact that notification purports to modify the order of 21st August 1942, which vested & these powers in the Collector of Ahmedabad, seems to me to show clearly that there had been no intermediate order, and seems to me to rule out the argument that there may have been an intermediate order, though no notification of it had been given in the “Gazette.” The only possible presumption, which in my opinion, we can draw from the non-production of the order appointing Mr. Whitworth prior to 16th September, is that no such order exists, and that goes to the root of the case. If Mr. Whitworth had not been properly appointed, then he was not the man who could issue order to the employees. That could only be done by the Collector of Ahmedabad. He was not the man described as the Administrator of the Municipality to whom authority had been given to file a complaint. That description again applied to the Collector of Ahmedabad. It seems to me, therefore, on that point the applicant is entitled to succeed. The conviction and sentence must be set aside. Fine, if paid, to be refunded.

7. Weston, J.:— The only substantial point in this application is whether Mr. Whitworth, on the date when he filed the complaint, was the validly appointed Administrator of the Ahmedabad Municipality. Although this is a matter affecting the jurisdiction of the Magistrate in whose Court the complaint was filed, it is after all a matter of fact; and in a case like the present, when such question of fact was not raised before the Magistrate nor, as I understand from the learned Advocate General, even in the memorandum of appeal to the Sessions Court, I do not think that ordinarily this Court would interfere merely because the officer authorised or said to be authorised to file a complaint did not bring or produce in Court the formal order of his appointment or of his authorisation. Complaints by public servants or persons specially authorised are not peculiar to the Essential Services Ordinance. Such, for example, are complaints within the provisions of section 195 of the Cr PC. But neither this section nor S. 476 requires that a public servant making the complaint must produce in Court evidence establishing conclusively that he is a person authorised to make the complaint. When his appointment is challenged, then no doubt, proof is necessary. But when, as in this case, the competence of the complainant was not then disputed, in the ordinary course, I do not think further evidence than the statement on oath made by Mr. Whitworth that he was acting as a Administrator was necessary. However, in the present case the point sought to be made out for the applicant, I think, has been established for his benefit by the notification made by Government on 5th October, 1942, whereby, in supersession of previous orders appointing the Collector of Ahmedabad as Administrator of the Municipality, Government purported to appoint Mr. Whitworth. That part of the notification seeking to give retrospective effect to the appointment of Mr. Whitworth, of course, can have no effect to validate a complaint filed by him in his capacity as Administrator before 5th October and, on the wording of this notification, I think it must be held that when the complaint was filed on 16th September, 1942, Mr. Whitworth was not a person authorised to file it.

8. I agree, therefore, that the conviction is bad and must be set aside.

9. Conviction set aside.