In Re: The Calicut Hosieries and Others

Panchapakesa Ayyar, J.—This is a petition by the Calicut Hosieries Ltd. (accused 1) and three Directors of that firm (accused 2 to 4) for

setting aside their convictions under Sections 23 and 24, Industrial Disputes Act, XIV [14] of 1947, read with Section 26(2) for having declared

and carried on an illegal lock-out after a reference had been made by the Government of Madras to the Industrial Tribunal, Coimbatore, consisting

of one person, viz, Sri C. R. Krishna Rao, for deciding certain Industrial disputes between certain hosiery factories in the Province of Madras and

the workmen employed therein and a letter of the District Magistrate of Malabar to the accused drawing their attention to the fact that all disputes

between hosiery employers and workers had been referred to the Industrial Tribunal, Coimbatore and that the lock-out during the pendency of the

reference was illegal and should be terminated. The first petitioner firm has been ultimatly sentenced to pay a fine of Rs. 1000, and the directors of

the firm (P. Ws. 2 to 4) have been sentenced ultimately, by the appellate Court, to pay a fine of Rs. 500 each.

I have perused the entire records, and heard the learned counsel for the petitioners and the learned Public Prosecutor contra. The learned

counsel for the petitioners urged that the reference in this case by the Government to the Tribunal was far too vague and general and was invalid

under the rulings of Horwill and Rajagopalan JJ. in Sri T.D. Ramayya Pantulu, Industrial Tribunal for Engineering Firms and Type Foundries Vs.

Kutty and Rao (Engineer) Ltd. and Another, and of the Chief Justice and Mack J. in C. M. p. No. 3894 of 1949 a similar case but unreported.

The facts there being more or less identical with the facts here, it was urged that as the reference to the Industrial Tribunal, Coimbatore, itself was

illegal and void there could be no question of any illegal lock-out by these petitioners during the pendency of that reference (which is as if it were

not, being void and of no effect) or of any offence committed by them under the Industrial Disputes Act. The learned Public Prosecutor while-

conceding that the rulings above have held such references, including a reference as in this case, to be illegal and void, and that the petitioners

would have been entitled to an acquittal bad the matters stood there, relied on Section 5 of Madras Act XII [12] of 1949 for urging that the

reference to the Tribunal held to be invalid by those two Bench judgments of this Court, has been validated thereby, even for making this lock-out

illegal.

Section 5 runs as follows :

Where before the commencement of this Act any Industrial Tribunal has been constituted by the Provincial Government under the said Act, all

proceedings taken, all awards made, and all other acts and things done, whether before or after such commencement, by or before such Tribunal

in connexion with any industrial dispute, shall be deemed to be valid and shall not be called in question in any Court of law on the ground that the

Tribunal was not constituted in accordance with the provisions of the said Act or the dispute to which the proceeding, award, act or thing relates

was not referred to the Tribunal in accordance with such provisions.

It is clear from Section 5 that all acts and things done by or before such Tribunal in connection with any industrial dispute will be valid in spite of the

previous void nature of the reference. In other words, if the tribunal had passed an award under the reference in question in this case, it will be

binding on all the parties. The amendment itself was made to make such awards, rendered nugatory by the above decisions, valid and binding, and

not to create retrospective offences a thing unknown to our criminal law. It is quite futile to argue that any person charged with an offence of illegal

lock-out before the Validating Act can be convicted and sentenced for it, where the reference was void before the Validating Act. The second

para. of Section 5 itself declares that no decision or order of a Court which became final before the commencement of this Act shall be invalidated

because of Section 8. That shows that there was no intention to declare the Bench decisions null and void and shows the clear intention of the

Legislature not to make persons charged with offences before the Validating Act liable for those offences because of the Validating Act, if they

would not be liable without resort to the provisions of the Validating Act. A criminal offence is a peculiar thing, and the law is very particular that

only a person with the necessary mens rea or guilty of knowledge at the time it was committed shall be convicted of a criminal offence and

punished for it, except in very exceptional cases, of which this is not one. To say that because a reference has been validated therefore a look-out

which was legal before the Validating Act has become illegal, though it would certainly not have been illegal but for the Validating Act, is to ask for

too much on the side of the prosecution. No Act is held to be retrospective regarding crimes in my civilized country without the clearest words to

that effect.

The learned Public Prosecutor urged that this illegal lock-out was committed before the decisions of the two Benches, and so the P. Ws. cannot

avail themselves of these decisions. But it is obvious that Courts only declare the law, which is deemed to have existed always and that they cannot

create a law when pronouncing judgments, much less alter it, Thus a person declared illegitimate by a Court of law does not become illegitimate

because of the decision of the Court on that day, or by an act of the Court, but because he must be deemed to have been always illegitimate. In the

same way, it must be construed here that the reference in this case was illegal and void even when it was made and even before the Court''s rulings

were issued proving it to be illegal and void and making it easy for all men to see it in the light of the reasoning given in those judgments. That being

so, it is clear to me that these petitioners ought not to have been convicted in this case, and that they ought to have been acquitted, in the

circumstances stated above.

I accordingly set aside the convictions and sentences on all the petitioners, and direct the fines if paid, to be refunded to them.