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"Gherao or wrongful confinement and criminal trespass.

2 Though workers may go on peaceful striker which are not illegal they have no right to resort to coercive methods like wrongful restraint, wrongful confinement and criminal trespass which are all cognizable offences. Such methods are also unwarranted as there is a machinery set up by law to deal with all industrial disputes.

3. It is necessary to emphasize that the police should never lay themselves open to the charge of inaction When the police receive information from any source whatsoever, regarding such occurrences or any apprehension of such occurrences they should immediately seek confirmation thereof and proceed to the scene of occurrence particularly if police help is asked for by the management A responsible police officer not below the rank of Sub-Inspector should be in charge of the party. On arrival at the place the officer should contact the management to find out if police intervention is necessary.

Both are cognizable offences.

Section 351 deals with assault. Section 357 deals with assault or criminal force in attempt wrongfully to confine a person. This is a cognizable offence. Section 378 deals with theft. This is a cognizable offence.

Section 440 deals with "mischief". It runs as follows:

"440. Mischief committed after preparation made for causing death or hurt.--Whoever commits mischief, having made preparation for causing to any person death or hurt or wrongful restraint, or fear of death, (sic) of hurt, or of wrongful restraint shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine'' It is a cognizable offence.

draw at a distance unless the management wanted assistance. It was also provided that where there was a serious threat to life and property the police were to ascertain from the local representative of the labour Directorate whether the strike was legal or not. Where removal of finished goods from the factory was interrupted, thus committing a criminal offence, the district officer was invariably to consult the Labour Department to find out what should be the appropriate time for intervention. The learned Advocate General argues that the impugned circular dated the 27-3-1967 was really an attempt to supersede the illegal directions contained in the earlier circular and there is nothing in it which is contrary to law. First, of all, we are not concerned in this case with the 1956 circular. I think that there is much in what the learned Advocate General says about its illegality. The learned Advocate General has argued that in the 1956 circular, the pride of place was given to the management. Nothing was to be done without consulting the management. The present Government did not like this emphasis and gave no privileged position to the management, but were more concerned with labour. That is why recourse was directed to the Labour Minister. He says that today, labour has become restive because of the great delay in labour adjudications and implementation of their awards. All that was done by the impugned circular was to give an opportunity to the labour Minister to intervene and settle disputes, preventing violence. It is impossible for us to say whether the policy of Government has changed or whether the change is more beneficial to employers or the employed. We should have thought that a Government to be worth the name should represent both the employer and the employed and protect their rights impartially and in a manner which will be of the greatest assistance to national progress. For national progress, what is required is the rapid industrialisation of the country, the modernisation of existing industries, the increase of production, the increase of export and the increase of per capita earning. This can only be achieved in an atmosphere of peace and co-operation between labour and the management. How this can be achieved by encouraging violence, and intimidation or the playing of one against the other by successive Governments is beyond my comprehension However the point to be considered by us, at present is as to whether the two impugned circulars contravene the law. I shall now deal with the circular dated 27th March 1967. The first thing that should be noted is that it speaks of a "gherao" and states on the face of it that it is applicable to a case where an Industrial establishment is gherao by its workers resulting in the confinement of its managerial and other staff. It is obvious that the word "confinement" means wrongful confinement, bringing it within the ambit of Section 340 of the Indian Penal Code. The learned Advocate General points out that this circular is confined to police intervention for the "rescue" of the confined personnel. He argued that the Criminal Procedure Code does not provide for any kind of "rescue" by the Police, and can refer only to Section 100 of the Code which gives power to a Magistrate to issue a search warrant and when such a warrant is issued, the police can search for a person and rescue him According to him, there is nothing in this circular which prevents the Magistrate from doing so. In my opinion this is not a substantial argument. It is true that the word "rescue" is not to be found in the Criminal Procedure Code, but it can mean one of two things. Assuming, as the circular does, that an industrial establishment is gheraoed by its workers, resulting in wrongful confinement of its managerial and other staff, rescue could be effected either by the issue of a search warrant under Section 100, and this can only be by a Magistrate, or it can be done by action under either Section 54 or 127 of the Code. Section 54 provides that any police officer may without an order from a Magistrate and without a warrant, arrest any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. If the person found to be committing the cognizable offence of wrongful restraint or wrongful confinement be arrested, then the persons confined would be able to escape or be rid of the wrongful restraint or wrongful confinement, and would thereby be "rescued". Next, we have Section 127 Section 127 of the Code lays down that any Magistrate or the officer-in-charge of a Police station may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse, and it shall thereupon be the duty of the members of such assembly to disperse accordingly In the case of a 'gherao' contemplated under the circular, the officer-in-charge, if he finds that there is an unlawful assembly can take steps to disperse the same and for this no order of a Magistrate is necessary. If the unlawful assembly or an assembly of five or more persons likelv to cause disturbance of the public peace, be dispersed then the confined persons would be able to escape or be rid of the wrongful restraint or confinement and thus can be said to be "resued" Let us see whether the circular prohibits or obstructs action under Section 54 or 127. The learned Advocate General argued that in the present case it was not a practicable proposition to arrest hundreds of persons who were found gheraoing the managerial and other staff In my opinion, in order to test the legality of the circular, we are not confined to the present case. If the circular prohibits or obstructs the carrying out of a power or duty or even the discretion granted under the Code, under any circumstances, then it would be bad. As I read the circular, even in a case where the officer-in-charge can easily take steps under Section 54 or 127 he cannot do so because of the absolute prohibition contained in the circular which says that he must immediately refer to the Labour Minister and his direction be obtained before deciding upon any police intervention. The Criminal Procedure Code does not require the officer-in-charge to obtain any such direction. The obtaining of direction naturally means that the Labour Minister may allow, prohibit or delay action being taken by the Officer-in-charge. Let us take a simple case. A manager is confined in a room with a single door. This door is blocked by let us say 10 persons who had wrongfully confined the manager. The Officer-in-charge upon information received finds that there is such a confinement and let us assume that he has sufficient police force in his command to arrest the persons under Section 54. But he cannot do so, because under the circular he has to refer the matter to the Labour Minister who may or may not be available immediately. It is well known that Ministers are going about the country trying to meet the violent situation which is spreading all over the State, and also they are frequently visiting Delhi. It may be days before the officer-in-charge can get into contact with the Labour Minister. Therefore, although he has a right under Section 54 of making an arrest of persons whom he plainly sees committing a cognizable offence, then and there, he cannot arrest them until the Labour Minister directs him to do so. This is entirely violative of the Code and constitutes the addition of provisions to it which are not there. Let us next take Section 127. If the officer-in-charge finds that there is an unlawful assembly or an assembly of five or more persons likely to cause a disturbance of the public peace, then under Section 127 he can at once take steps to disperse the same. The learned Advocate General has pointed out that this power is discretionary. T will assume that this is so. but let us take the case where the officer-in-charee has found that there is an unlawful assembly or an assembly as mentioned in Section 127 and he wants to use his discretion in favour of dispersing the same. Under the law he is not liable to take directions from anvbody and vet the circular adds to the law or else is violative of it. because it says that thp Officei-in-charge cannot do so without first referring the matter to the Labour Minister Apart from the very impracticable course of laying down that such an urgent action can be taken only upon reference to the Labour Minister who, as I have pointed out, may not be available for days, the point is that the circular lays down a fetter which is not to be found in the law. Therefore, what it lays down is clearly violative of the provisions of Section 54 or 127 of the Code. In course of the argument, we expressed a doubt as to whether the provision for obtaining the direction of the Labour Minister was in accordance with the Constitution. According to Article 154 of the Constitution the executive Government vests in the Governor Under Article 163 the Council of Ministers is to advise the Governor in the exercise of his functions. Under Article 166, the Governor by making rules known as "Rules of business" may delegate his power to the Ministers. The various Ministers are given separate portfolios. For example, the Chief Minister is now in-charge of the Home and Political Department. This is separate from the Labour Department which is under the Labour Minister. The Ministers together constitute the cabinet and there is joint responsibility According to the rules of business, the cabinet has got definite functions. It is the cabinet alone which can lay down policy. The Chief Minister may refer any matter within the jurisdiction of a particular Minister to the cabinet. Where a matter involved two or more Ministers, the matter can be referred to the cabinet. A cabinet decision is to be executed by the Secretary. In this case, we are concerned with the Home and Political Department, because the direction to be given are to the police, which is under the Home and Political department. It seems to me very doubtful whether the cabinet can give direction that a matter coming within the jurisdiction of one Ministry must always be performed, after reference to another Ministry. The original delegation is by the Governor to the Ministers. There cannot be a redelegation. The direction in the circular that a matter which appertains to the Home and Political Department must always be performed upon reference to a Minister, in charge of another Department, namely Labour, does not appear to me to be legal. If this is possible then the delegation by the Governor can be wholly defeated. The cabinet may say that all matters relating to the Home and Political Department must be done according to the instructions of the Minister for Public Works. This would destroy the delegation by the Governor. It is not however necessary for us to pronounce a final opinion on this point because the ground that I have mentioned above is quite sufficient to make the circular invalid. I prefer to rest on the sound that the provisions of the circular are contrary to certain provisions of the Code and add burdens which are not to be found in the Code and is therefore invalid and cannot be allowed to remain operative. Legislation cannot be made by cabinet decision, so its decisions cannot be allowed to affect it. In my opinion, this gorund is a sufficient reason why this circular should be declared illegal and contrary to law. I shall now come to the second circular dated 12th June 1967. This circular was issued after the interim injunction was passed by this Court, in an earlier application. I am of the opinion that this circular is nothing but an attempt to continue the effects of the first circular, the implementation of which had been staved, by casting it in a different language and trying to make it look inoffensive. Firstly, it will be observed that it does not state that the first circular was either superseded or suspended. We are informed by the learned Advocate General that on the 3rd June 1967 a direction was issued upon every one concerned to the effect that the first circular stood suspended pending the court proceeding. No particulars have been given in the affidavits in any of the proceedings about any such communication. I will deal with the obscure description "legitimate labour movements" used in the circular presently. Since it is not disputed, I will assume that it means "legitimate trade union activities as the learned Advocate General suggests it to be. He argues that this is a harmless communication stating that lawful trade union activities on the part of labour were not to be interfered with, but where there was any unlawful activities in connection with the same, then the police must make a preliminary enquiry to satisfy themselves that the complaint was bona fide before proceeding to make any further investigation as contemplated by law. This, he says, if permitted by law, because the police are not bound to act on wild information's or on any and every news that comes to their ears. In my opinion, the position is not at all as simple as he claims it to be. The circular says that when any complaint is made regarding unlawful activities in connection with "legitimate labour movements" that is to say, a legally valid trade union activity, which would include an offence committed in connection therewith, the police, before takine 'an action provided under the law' must make an investigation that the complaint has a basis in fact. He wishes us to add certain words to the circular, which will make the above quotation read as "any action provided under the law, in respect of the making of investigations." It is not permissible for us to make any such addition. We must consider the circular as it stands. If "any action" means what it says the learned Advocate General admits that he is in difficulty. Let us see what those difficulties are. In Section 154 of the Code, where a person goes to a police station and gives information regarding the commission of a cognizable offence, it is mandatory, and in this respect no discretion is given, that the officer-in-charge should reduce it to writing by him or by some one under his direction. It should then be read over to the Informant and signed by him and the substance thereof entered in a book to be kept by such officer. This is called a F. I. R. or First Information Report. That being the law we at once find that the second circular directs a departure from it. Where an information is given by a person of the commission of a cognizable offence to the officer-in-charge of a police station, he must no longer proceed at once to take down the F. I. R. as laid down imperatively under Section 154 but must first make an investigation as to whether the complaint has any basis in fact. The word 'investigation' has been defined by the Code in Section 4 (e) the relevant part whereof is as follow:

(16) Neither Section 17 or 18 of the Trade Unions Act, exempts a workman, if he commits an 'offence' which means, an offence under the criminal laws of the country, save and except the limited ground upon which he is exempted from being charged with criminal conspiracy under Section 17.

(17) Any act of violence, which amount-to the commission of an offence is never excused. An agreement to commit an offence is expressly excluded from the purview of Section 17 (18) A 'Gherao' is the physical blocked of a target, either by encirclement or forcible occupation. The 'target' may be a place or a person or persons, usually the managerial or supervisory staff of an industrial establishment. The blockade may be complete or partial. If it is accompanied by wrongful restraint and/or wrongful confinement, or accompanied by assault, criminal trespass, mischief to person or property, unlawful assembly and various other criminal offences, used as a coercive measure to controllers of industry to force them to submit to the demands of the blockaders. such a gherao is unconstitutional, that is to say, violative of the provisions of the Constitution, and unlawful, that is to say, violative of the laws of the land. In the instant case we are not concerned with a peaceful gherar but with a eherao of the latter kind (19) A 'gherao' is not an offence as such mentioned in the Indian Penal Code But it is an act indulged by labour, against the management and where it is accompanied by confinement, restraint or other offences under the criminal law of the land, the fact that it is done by members of a Trade Union, and used as an instrument of collective bargaining, gives rise to no special treatment or exemption from liability under the law. All workmen, guilty of wrongfully restraining any person belonging to the management, or wrongfully confining him. during a gherao are guilty under Section 339 or 340 of the Indian Penal Code and have committed cognizable offences for which they are liable to be arrested without warrant and punishable with simple imprisonment for a term which may extend to one month or with fine which may extend to five hundred rupees or with both, for wrongful restraint and for imprisonment of either description for a term which may extend to one year or with fine which may extend to one thousand rupees or both, for wrongful confinement, where the confinement extends to three or more days the punishment is imprisonment of either description for a term which may extend to two years or with fine or with both. Where the confinement is for ten or more days the punishment is imprisonment of either description for a term which may extend to three years. There is a further liability to fine Where there is a concerted intention to commit an offence, it amounts to criminal conspiracy under Section 120A of the Indian Penal Code and is not saved by Section 17 of the Trade Unions Act 1926 (20) Where other offences are committed they are punishable with various terms of imprisonment and fine or with both.