- (1.) This is a petition under Art. 226 of the Constitution of India. It challenges a Notification No. 2804 (ST)XXXVI-1-47(ST)-74, dated 26th April, 1974, issued by the State Govt. under R. 119 (1) of the Defence of India Rules, 1971, and an order passed under R. 119 (4) dated 3rd of May, 1974. The notification dated 26th April, 1974 is Annexure 'A' and the order dated 3rd May, 1974 is Annexure 'SI', to the petition. Annexure A declares the employment of all workmen under the Eveready Flash Light Co. a division of M/s. Union Carbide India Ltd., petitioner No. 1, to be an employment to which the provisions of R. 119 apply. Annexure S-l cancels the suspension orders passed against the workmen of the concerned factory and issued directions regarding the domestic enquiry instituted against them. Annexure A is challenged, inter alia, on the grounds that it has been issued in colourable exercise of power and for a collateral purpose and that it is tainted with mala fides and is also hit by Art. 14. Annexure S-l is challenged on the grounds (1) that the order is beyond the scope of R. 119 (4) and (2) that it has been passed in breach of the principles of natural justice. The two notifications are as follows: The Notification dated 26-4-74 Annexure A reads: "In exercise of the powers under sub-rule (1) of R. 119 of the Defence of India Rules, 1971, the Governor, being of opinion that such employment or class of employment is essential for securing the maintenance of public order and for maintaining supplies and services essential to the life of community, is pleased to declare the employment of all workmen as defined in the U. P. Industrial Disputes Act, 1947 under the Eveready Flash Light Company, Lucknow, a division of M/s. Union Carbide India, Ltd., to be employment to which the provisions of the said rule apply." Annexure S-1 states: "Whereas the employment of all workmen as defined in the U. P. Industrial Disputes Act, 1947, under the Eveready Flash Light Company Limited, Lucknow, a division of Messrs Union Carbide India Ltd., has been declared by notification No. 2804 (S. T.)/ 38-1-47 (S. T.)-74 dated April 26, 1974, to be employment to which the provisions of R. 119 of the Defence of India Rules, 1971 apply; And whereas on s ccount of disputes between the employer and the workmen of this Company which have been going on for some time, due to which the production in the factory is at stand-still, and during the course on the said disputes the employer has. placed under suspension 26 workmen as mentioned in their notices Nos. F/T/ 3/74, dated April 18, 1974 and F/T/4. 74, dated April 19, 1974 and have prohibited them from entering the factory which is causing further discontent among the entire workmen . of the Company; And whereas the State Government is satisfied that it is necessary for maintaining supplies essential to the life of the community so to to; Now, therefore, in exercise of the powers conferred by sub-rule (4) of the said R. 119, the Governor is pleased to regulate the conditions of services of the workmen who have been placed under suspension as aforesaid, to the following extent, namely: 1. The disciplinary inquiry against the said 26 workmen shall be conducted by a public officer nominated by the Labour Commissioner, U. P., instead of by a nominee of the employer. 2. The inquiry shall be concluded as expeditiously as possible. 3. The employer as well as the workmen shall be bound by the findings and recommendations of the said inquiring officer. The aforesaid suspension shall stand revoked immediately".
(2.) The Union Carbide India Ltd., petitioner No. 1, is the proprietor of the Eveready Flash Light Company, which is engaged in the manufacture of flash light cases, commonly known as torches. Petitioner No. 2 is its works manager. The factory employs a large number of workmen. A long term settlement, it appears, was entered into between the petitioner Company and its hourly rated workmen through their Union in July, 1969, which was to continue up to 25th Dec. 1973. On 22nd December, 1973 it is stated another charter of demands was put forward by the workmen to the employers and before any discussion could take place, the workmen started agitation for the fulfilment of their demands. The Assistant Labour Commissioner intervened and a Conciliation Board was formed. July 15, 1974 was fixed for conciliation proceedings. Paragraph 2 (k) of the petition states that before the conciliation proceedings could take place the workmen started indulging in subversive activities by stopping ingress and egress of the staff to the factory premises and giving threats of violence to them. These threats were further intensified from. 26th March, 1974. Serious acts of misconduct are alleged to have been committed by a large number of workmen but it is stated that only two. of them were charge-sheeted and suspended. They were Sri A. K. S. Sana and Sri Shiva Kailash. Sri Rana it is alleged physically assaulted a foreman of the factory inside its premises and made attempts to lead a group of workmen to the production office for assaulting the supervisory staff. He was suspended on 31st March 1974. The workmen in protest struck work and launched an agitation and threatened the supervisory and managerial staff with dire consequences. The counter-affidavit gives a counter version of the incident but admits that there was a great agitation prevailing in the factory on that date due to the suspension of the two employees. The petition states that the factory lights were switched off and telephone connections were cut and the supervisory staff was assaulted. The staff took refuse in a room and managed to contact the police authorities somehow. The police arrived on the scene and rescued them by opening fire on the agitators. This fact finds corroboration from a statement made by respondent No. 2 in the Legislative Assembly in connection with a query regarding opening of fire by police on the workmen of the Eveready Flash Light Company. A copy of the statement is filed as Annexure R-.1 to the second rejoinder affidavit.
(3.) It is clear from the statement as also from the allegations in the petition that the situation in - the Eveready Flash Light Company on the 31st March, 1974 was very tense on account of the agitation of the workmen against the employers. A lockout was declared the next day and a press conference was called by the Works Manager of the Company on April 3, 1974 at 6 p.m. After he had finished his address, the police arrived on the scene, and arrested three of the Company's Officers who were sent to the court of a Magistrate next morning. The agitation continued and the workmen, it is stated committed grave and serious acts of indiscipline and misconduct between the 1st and 17th of April, 1974. Twenty four workmen were suspended during this period. The number of suspended and charge-sheeted workmen thus now totalled to 26. A domestic enquiry was initiated against them. The suspended workmen are respondents Nos. 4 to 29 to the petition. It was in this state of industrial unrest that the notification dated 26th April, 1974 was issued. Paragraph 4E of the petition states that on 23rd April, 1974 a meeting was held at the residence of respondent No. 2. He asked the management to revoke the suspension orders and withdraw the charge-sheets otherwise R. 119 of the ' Defence of India Rules may have to be invoked, In reply the counter-affidavit of Sri Vishnu Prakash, filed on behalf of the State states that in the meeting referred to above respondent No. 2 impressed upon the Management the desirability of restoring industrial peace so that production of torches, articles essential to the life of the community may not be disrupted. He further tried to impress upon the management the necessity of bringing about normalcy so that the agitation might not engulf other areas causing danger to public order and in this connection pointed out that in case no amicable settlement was forthcoming the Government might have to take suitable action under R. 119 of the Defence of India Rules. The lock-out, it appears, was partially lifted but the situation continued to be explosive and no settlement being in sight the Government, it is stated, was left with no option but to issue the impugned notifications. It is clear from these averments that the impugned orders were passed on account of the industrial unrest and the serious law and order situation existing in the factory. It is further clear that the orders were issued with a view to controlling the disorder and preventing its spreading over to other areas as also to bringing about industrial peace. The counter-affidavit of Sri Vishnu Prakash has made it very plain that the declaration under sub-rule (1) of R. 119 "for securing the maintenance of public order" was made not because of the essential character of the employment being closely connected to that purpose but because of the conditions developing in the undertaking requiring immediate control. The averments are clear that the issue of the notification was necessitated so that the agitation may not engulf the industrial areas causing danger to public order. The question is whether this approach of the Government for the invocation of the rule as regards the purpose of securing maintenance of public order was correct.;