MOHAMMED Vs. V P NAIR

JUDGEMENT

(1.) ACCUSED Nos. 1 to 9 who have been convicted by the Sub magistrate of Tirur under 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. Under 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 S. 143,341 and 353 read with s. 149 I. P. C. and S. 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 1412 68 a complaint was preferred before the Magistrate and it was taken on file as c. C. 1634/68 under the various sections of 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 Offices, who was examined as pw. 1 was recalled and examined as RW1 and through him the gazette notification issued under the Act prohibiting strikes in the essential services including Post, telegraph and Telephone services was proved. 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 v. State (AIR. 1951 S. C. 467) that:

(2.) 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. . .