SANTOSH KUMAR Vs. SUPDT CENTRAL JAIL NAINI

JUDGEMENT

(1.) Does sub-see. (2) of S.3 of National Security Act (hereinafter referred to as Act) visualise detention of an Office-bearer of employees' Union, without trial under extraordinary legislation of preventive detention for hunger strike or threat of life and property to the general manager of Corporation if the demands of Union were not met or creating disturbance in the office or misbehaving with officials or such action is a scornful reflection on abuse of power is one of the sensitive issues noised in this habeas corpus petition, filed on behalf of petitioner, Secretary of Jal Kal Karamchari Sangh, Allahabad for last ten years, by his wife. The order detaining petitioner is also assailed for absence of material or circumstance which could furnish foundation for being satisfied that public order was endangered or there was threat or likelihood of disruption of supplies essential to the Community, for mechanical exercise of power by detaining authority, delay in disposal of representation by State Government, divergence in the order and grounds of detention, failure to place letter dated 6th May, 1986, a subsequent but vital material, before confirming authority and detention because of apprehension of petitioner being enlarged on bail when no abnormal circumstance or situation existed.

(2.) Prior to narrating the grounds of detention the circumstances which led to petitioner's arrest maybe stated in brief. Crisis of water supply in Allahabad was being voiced through press from January, 1986. In the news item published on 14th January, in Amrit Prabhat, a Hindi newspaper published daily from Allahabad, the situation in various areas was described asalarming. For this both the officials and employees were accusing each other. Relations between officials and office bearers of the Union appear to have been strained. Sri Radhey Shyam Tewari, the Maha Prabandhak of the Sansthan, lodged a First Information Report on 15th February, 1986, against petitioner for going on hunger strike along with others in the premises of Sansthan. It was also mentioned that he delivered provocative speeches and misbehaved with the Maha Prabandhak. Another complaint was filed on 17th February against petitioner for extending threat to life and property of Maha Prabandhak if demands were not met. On 1st March, 2nd April, and 11th April, news items were published describing grim situation of writer supply in the city. On 15th April, another First Information Report was lodged, against petitioner, for obstructing the Maha Prabandhak in his working in the office. Climax reached on 26th April when Northern India Patrika and Amrit Prabhat, the two newspapers, highlighted deteriorating water supply on one hand and increasing apathy of officers of the Jal Sansthan on the other. It was on this very day that petitioner made a representation to Sri J.N. Dwevedi the Administrator of Mahapalika about grievances of the employees and complaining against irregularities of the Maha Prabandhak. Later in the night he was arrested from the Sansthan and sent to jail. On the same day the Administrator wrote to District Magistrate to take action against petitioner under National Security Act. The Senior Superintendent of Police also made similar recommendation on 28th April, 1986. And on 29th April, the District Magistrate in exercise of power under S.3(2) of Act passed the impugned order as he was satisfied that it was essential to detain petitioner to prevent him from doing anything which may result in disrupting supplies essential to the Community. Reasons which were communicated to petitioner on same day, however, indicate that the District Magistrate was impelled to invoke extraordinary power because the activities of petitioner were not only likely to disrupt supply of water but they were also likely to stop the sewer and were threat to public order. whether addition of these two in the grounds rendered the detention order bad or it had no effect and were innocuous in nature shall be adverted to later. To complete the factual narration the communication mentions as many as four incidents :

(3.) Foundation, therefore, for action to detain petitioner without trial, principally was the hunger strike or threat to strike if demands were not met or giving speeches in courtyard of Jal Sansthan. And this was being resorted to by petitioner to press for demands of the employees who are permitted to form union. The objective and purpose of recognising union now in Government and Police service, even, is to permit employees to represent their claim before the employer through its representatives. It is collective bargaining. In exercise of this right they at times, resort to strike which is a joint or agreed refusal by the employees not to work under given conditions. With encouragement of trade union activities it has become a legitimate and effective weapon for ventilation of grievance by employees of not only factories, and Mills but Government servants, University teachers, doctors and even lawyers. Even though it has statutorily been recognised under Industrial Disputes Act only but its efficacy- and success in other spheres including essential services has rendered it an instrument of tremendous bargaining potential. Therefore, if the petitioner who undisputedly is the Secretary of Union of employees threatened to go on strike or even resorted to it for sake of meeting the demands of union his activities as such could not be branded as anti-social or anti-national. If in exercise of this fight the petitioner transgressed the limits and his activities became a threat to the Society the authorities could have taken recourse to provisions of the Act. But in no case for hurling abuses on officials or threatening Maha Prabandhak with life and property or even disturbing the work in the office. Each and all of such actions are actionable under law both civil and criminal. They do not furnish basis for raking action under extraordinary legislation. Every infraction of law does not justify circumventing proceeding under ordinary law. An order of preventive detention by its nature being founded on anticipation or suspicion it requires great care and attention. Therefore, while allowing full play to authorities to invoke it for welfare of society, a primary concern of any Government, its arbitrary exercise cannot be countenanced.