minal Appeal No 48 of 1958
Appeal by special leave from the judgment and order dated July 4 1956 of the Calcutta High Court 321 in Criminal Revision No 1005 of 1955 arising out of the judgment and order dated July 21 1955 of the Additional Sessions Judge Asansol in Criminal Appeal No 125 of 1955
H J Umrigar and Sukumar Ghose for the appellants
section M Bose Advocate General for the State of West Bengal A C Mitra D N Mukherjee and P K Bose for the respondent
B Sen P K Chakravarty and B N Ghosh for the interveners
November 25
The Judgment of the Court was delivered by SARKAR J
There are five appellants before us
Four of them were employees of a company called the Indian Iron  Steel Co Ltd and the fifth an outsider
The appellants were convicted by a Magistrate of Asansol in West Bengal of an offence under section 27 of the  hereinafter referred to as the Act for having instigated and incited others to take art in an illegal strike
Each appellant was sentenced to simple imprisonment for three months
On appeal by the appellants the learned Additional Sessions Judge of Asansol confirmed the order of the learned Magistrate
A petition to the High Court at Calcutta against the order of the learned Additional Sessions Judge by way of revision also failed
The appellants have now appealed to this Court with special leave
The respondent to this appeal is the State of West Bengal and the Company has been allowed to intervene
The Company owns a factory at Burnpur near Asansol in which there is a Sheet Mill
The factory was declared by the Government to be a public utility service
There was a slow down strike in the Hot Mill section of the Sheet Mill
The Company thereupon issued charge sheets to some of its workers including the four appellants in its employment for taking part in the slow down strike and instigating others to join it as also for other misconduct and 322 after an enquiry dismissed these four appellants from service
On such dismissal the slow down strike gained in strength
Thereupon on April 8 1953 the Company issued a notice to the workers of the Hot Mill the relevant portion of which is set out below The workers of the Hot Mills Sheet Mills are hereby notified that unless they voluntarily record their willingness to operate the plant to its normal capacity they will be considered to be no longer employed by the Company after which the Company will recruit other labour to man the Plant
The workers must record their willingness before Friday 10th April 2 0 pm otherwise action as stated above will be taken
 As a result of this notice forty workers of the Hot Mill recorded their willingness but the rest who were about three hundred in number did not make any response at all
In fact on April 11 1953 the workers in the entire Sheet Mill numbering about one thousand and three hundred went on a sit down strike which lasted till April 20 1953
On April 25 1953 the Company issued another notice to the workers which is set out below  In accordance with General Manager s Notice dated the 8th April 1953 you have been considered to be no longer employed by the Company after 2 pm on Friday 10th April 1953 as you did not record your willingness before that date and time to operate the Plant to its normal capacity
Your formal discharge from Company s service bad been kept pending in order to assure to the fullest that no one who wanted to work normally was being discharged on circumstantial assumptions
Now however there are no further reasons to believe that every one concerned has not all necessary information about the facts of the case and every opportunity to form a correct and legitimate opinion on the utterly irresponsible attitude adopted by some of the workers
A copy of the notice dated the 22nd April 1953 issued by the Directorate of Labour Government of 323 West Bengal which has already been widely circulated is attached herewith in English with translations in Bengali Hindi and Urdu
You are therefore hereby given a final Notice that if by 11 am on 28th April 1953 you do not record your willingness to operath the Plant to its normal capacity your name will be removed from the Company s Roll and your discharge will become fully effective with all the implications of a discharge on grounds of serious breach of discipline  and your place will be filled by promotion from amongst the existing men or by engaging new men After this notice the workers of the entire factory except those engaged in essential services went on a strike on April 271953 which lasted for twenty two hours
On May 19 1953 the Company filed a complaint under section 27 of the Act with the sanction of the Government granted on May 2 1953
Out of this complaint the present appeal arises
The respondent s case is that the strikes of April 11 to April 20 1953 and April 27 1953 were illegal and the appellants had instigated them
The appellants have not in this Court challenged the finding of the Courts below that the strikes took place and that they had instigated them but they contend that the strikes were not illegal
Section 27 of the Act provides that a person who instigates or incites others to take part in or otherwise acts in furtherance of a strike which is illegal under the Act commits an offence
The respondent s case is that the strikes were illegal under section 241 of the Act which provides that a strike or a lock out shall be illegal if it is commenced or declared in contravention of section 22
There is no dispute that the strikes were in contravention of section 22
The appellants rely on section 243 of the Act under which a strike declared in consequence of an illegal lock out shall not be deemed to be illegal and say that the strikes had been in consequence of an illegal lock out by the Company of the three hundred workers of the Hot 324 Mill by the notices of April 8 and April 25
It is clear that if there was such a lock out it was illegal under section 241 for it would be clearly in contravention of section 22
The question then is was there a lock out by the Company The learned Advocate for the appellants first contends that the notices use the same words as are used in the definition of a lock out in section 21 of the Act and therefore by those notices the Company locked out the men
We think that this argument is unfounded
The definition so far as is material reads  lock out means the refusal by an employer to continue to employ any number of persons employ ed by him
 In the notices the words are  considered to be no longer employed  while the definition uses the words  refusal by the employer to continue to employ Therefore the words are not the same
Furthermore the words used in the notices and in the definition have to be read in their respective contexts
For reasons to appear later the words used in the notices meant a discharge of the employees from service while the words used in the definition do not contemplate such a discharge of the workmen
The Courts below have come to the finding that by these notices the three hundred workers of the Hot Mill were discharged on April 10 1953 and had not been locked out
The learned Advocate for the appellants says that in this the Courts were wrong
He puts his arguments in two ways
First he says that the notices did not effect a discharge till April 28 1953 and they had in the meantime resulted in a lockout of the workers from April 10 1953 in the sense that their services had not been terminated but they had not been allowed to attend to their duties
Then he says that even if the notices effected a discharge then also there was a lock out for a discharge is equally a lock out within the meaning of its definition in the Act as the prevention by an employer of the workers from attending to their duties without discharging them is
Did the notices then effect a discharge  We agree with the Courts below that they did
The learned 325 Advocate for the appellants contends that the two notices taken together make it perfectly clear that there was no discharge of any employee prior to 11 a m of April 28 1953
He says that the notice of April 25 shows that the notice of April 8 did not effect any discharge for the first mentioned notice jays that the formal discharge had been kept pending and it also required the workers to record their willingness to operate the plant to its normal capacity by 11 a m on April 28 and further stated that failing this their names would be removed from the Company s roll and their discharge would become fully effective
We are unable to read the notices in the way suggested
The notice of April 8 clearly stated that unless the workers notified their willingness to operate the plant to its normal capacity by 2 p m on April 10 they would be considered to be no longer in the employment of the Company
It plainly meant that on their failure to record the willingness by the time mentioned the workers would cease to be in the employment of the Company that is in other words discharged
Taken by itself we do not think it is capable of any other meaning
We are also unable to agree that there is anything in the notice of April 25 which would show that a different meaning ought to be put on the words used in the notice of April 8 than they normally bear
The later notice also states that the workers bad been considered to be no longer employed from April 10
Hence it maintains that the workers had been discharged on April 10
It no doubt says that the formal discharge had been kept pending but that only means as is clear from the last paragraph of the notice that the names of the workers had not been removed from the Company s roll
The word formal must have its due meaning it emphasises that the real discharge had already taken place
We may also state that it has not been contended before us that there can be no discharge till a worker s name is removed from the roll and without more we do not think that we would have accepted that contention if made
The removal of the name of a worker from the roll follows his discharge and that is 42 326 what was meant by the statement in the notice  that the formal discharge had been kept pending
 The circumstances which led to the issuing of the notice of April 25 also show that the workers had actually been discharged on April 10
What had happened was that the Labour Minister of the Government of West Bengal had intervened in the dispute between the Company and its workers
He met the workers and on April 21 1953 that is after the termination of the first of the two strikes suggested certain terms for the settlement of the dispute
His suggestion was that  if the workers of the Hot Mills who stand discharged from 2 pm of April 10 1953 as a consequence of their disregarding the notice issued on 8th April 1953 report themselves for duty immediately and record their willingness to operate the plant to its normal capacity the Government would recommend their reinstatement to the Management
 A copy of this suggestion was forwarded to the Company by the Government with a request to implement the recommendations contained in it with a further request to give the suggestion a wide publicity
The company circulated the Labour Minister s suggestion among the workers and to comply with his request to implement it it issued the notice of April 25 to which a copy of the suggestion was attached
It is therefore clear that all that the Company intended to do by the notice of April 25 was to comply with the Government s suggestion and so to cancel the discharge of the workers of the Hot Mill which had already taken effect and reinstate them in their former employments if the workers carried out their part of the suggestion
This notice therefore does not support the contention that the workers had not been discharged till April 28 1953
We may also state that there is no evidence that prior to 2 pm of April 10 1953 any employee had been prevented by the Company from attending to his duty
The next question is whether a discharge of employees by an employer amounts to a lock out
It is said that the words used in the definition of a lock out 327 namely the refusal by an employer to continue to employ any number of persons employed by him  cover the discharge of employees by an employer
The contention so raised was rejected by the Labour Appellate Tribunal in Presidency Jute Mills
Co Ltd vs Presidency Jute Mills Co Employees Union 1
We are in entire agreement with the view there expressed
It seems to us that to construe the definition as including a discharge would be against the entire tenor of the Act and also against the meaning of a lock out as understood in industrial relations
By virtue of section 22 of the Act in a public utility service no worker can go on strike nor can an employer lock out his workmen without giving notice of strike or of lock out within six weeks before the strike or lock out as the case may be or within fourteen days of such notice or before the date fixed in such notice or during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion thereof
Section 23 prohibits strikes and lock outs in other industrial establishments during the pendency of conciliation proceedings before a Board and for seven days thereafter
Section 241 makes a strike and a lock out in contravention of sections 10 22 and 23 illegal
Section 242 provides that a strike declared in consequence of an illegal lock out and a lock out declared in consequence of an illegal strike shall not be illegal
Section 25 prohibits the spending of money on illegal strikes and lock outs
The Act therefore treats strikes and lock outs on the same basis it treats one as the counterpart of the other
A strike is a weapon of the workers while a lock out that of the employer
A strike does not of course contemplate the severance of the relation of employer and employed it would be strange in these circumstances if a lock out did so
Under the provisions of section 22 a lock out cannot be declared in a public utility service immediately it can be declared only after the date fixed in the notice and cannot be declared within fourteen days of the giving of the notice
Now if a discharge is included in a 1 328 lock out an employer in such a service cannot discharge his employee except after the time specified
Now that would often make it impossible for the employer to carry on his business
It is conceivable that an employee may be guilty of such misconduct that his immediate discharge is essential
Indeed
 there is no reason to think that such cases would be very infrequent
In such a case if an employer is prevented on pain of being made criminally liable under section 27 from discharging the employee forthwith irreparable mischief may be caused to his works or serious personal injury to himself or his other employees
We have no reason to think that the Act intended such a result
Again if a lock out included a discharge then there would be a conflict between sections 22 and 23 on the one hand and section 33 on the other
As has already been stated sections 22 and 23 prohibit a lock out of workers during the pendency of the conciliation proceedings therein mentioned and seven days thereafter
According to the interpretation suggested by the learned Advocate for the appellants during this time no worker could at all be discharged for a lock out includes a discharge it being remembered that the prohibition in the section is absolute
Under section 33 however an employer is prohibited during the pendency of a conciliation proceeding from discharging a workman concerned in the dispute for any misconduct connected with such dispute save with the express permission of the authority before whom the proceeding is pending
So if a lock out includes a discharge under sections 22 and 23 there can be no discharge during the conciliation proceedings while under section 33 there could be one with the permission of the authority conducting the proceeding
If a discharge amounted to a lock out an absurd result would thus be produced
By an amendment made on October 2 1953 certain provisions have been introduced into the Act which would show clearly that a lock out as defined in section 21 which section has been left unaltered by the amendment was never intended to include a discharge of 329 workmen
We refer first to section 2oo by which a new definition was introduced in the Act which so far as is necessary for the present purpose is in these words Retrenchment means the termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted bY way of disciplinary action
If lock out includes a discharge then retrenchment as defined in section 2oo would also clearly be a lock out
Obviously if that were so then retrenchment would not have been separately defined
Again tinder section 25F also introduced into the Act by the amendment a workman may be retrenched by paying him wages for a month the compensation provided and on notice to the Government
If retrenchment was a form of lockout then there would clearly be a con flict between sections 22 and 23 on the one hand and section 25F on the other
Section 2oo and section 25F were no doubt not in the Act at the date of the notices with which we are concerned but since section 21 was not amended it must be taken that its meaning remained after the amendment what it was before
Since the amendment made it clear that section 21 did not include a retrenchment it follows that that definition did not include a retrenchment prior to the amendment
If it did not then include a retrenchment neither could it include a discharge for plainly a retrenchment is but one form of discharge
It therefore seems to us that the words  refusal by an employer to continue to employ any number of persons employed by him  in section 21 do not include the discharge of an employee
We feel no difficulty in taking this view for it does not seem to us that the words refusal to continue to employ in section 21 plainly include a discharge
These words have to be read with the rest of the definition and also the word lock out
The other parts of the definition contemplate no severance of the relation of employer and employed
The word  lock out  as stated in the Presidency Jute Mills Co s case 1 in its dictionary sense means refusal on the part of an employer to furnish work to his operatives except on conditions to 1 330 be accepted by the latter collectively
Therefore inour opinion the rules of interpretation do not prevent us from giving to the words used in the definition the meaning  a refusal by the employer to allow any number of persons employed by him to attend to their duties without effecting a termination of service as was done in the Presidency Jute Mills Co s case 1 which would avoid one part of the Act coming in conflict with another
The last point raised is about the propriety of the sanction
Section 341 of the Act provides No court shall take cognisance of any offence punishable under this Act save on complaint made by or under the authority of the ap
propriate Government
The learned Advocate for the appellants relying on Gokalchand Dwarkadas Morarka vs The King 2 where a provision somewhat similar to section 341 was considered by the Judicial Committee contended that the sanction granted in the present case by the Government of the West Bengal to file the complaint against the appellants was bad as it had been granted without reference to the facts constituting the offence
It is true that the sanction does not on the face of it refer to the facts constituting the offence
There is however ample evidence in this case which we did not understand the learned Advocate for the appellants to challenge and which clearly establishes that the entire facts connected with the offence had been placed before the sanctioning authority and the sanction had been granted on a consideration of them
The Judicial committee in the case above mentioned itself observed that the sanction would be good if it was proved by evidence that it had been granted after all the necessary facts had been placed before the sanctioning authority though these facts might not have been stated on the face of the sanction itself
It therefore seems to us that the sanction in the present case is unobjectionable
We feel therefore that the appeal must fail
We think it right however in the circumstances of this case and in view of the long lapse of time since the 1 1948 LR 75 IA 30
331 case started to modify the sentence passed
In our view a sentence of simple imprisonment for the period already served and a fine of Rs 100 with simple imprisonment for a period of fifteen days in default of payment of the fine for each appellant will be sufficient in this case and we order accordingly
Subject to this modification of the sentence this appeal is dismissed
Appeal dismissed


Summary:
On the judgment debtor s default in paying the agreed instalments of the decretal amount a receiver was appointed by the Court in execution of the decree under section 51 of the Code of Civil Procedure with power to sell the judgment debtor s property either by private agreement or public auction
The receiver entered into an agreement with respondent No 2 a third party for the sale of the property for a larger sum than the decretal amount on the condition that the sale should be confirmed by the High Court
The High Court allowed the decree holder s application for confirmation of the sale by the receiver but allowed the judgment debtor time to pay the balance of the decretal amount in which case the sale was not to be confirmed
The judgment debtor made partial payments but failed to pay the entire decretal amount within the prescribed time and in spite of several opportunities given to him by the Court to do so
He ultimately applied to the Court for cancellation of the agreement for sate by the receiver and prayed for leave to deposit the whole balance of the decretal amount
I his was disallowed by a Single judge and on appeal by a Division Bench of the High Court
The main question that arose for decision both in the High Court and Supreme Court oil appeal by special leave was whether the provisions of section 21 r 89 of the Code of Civil Procedure apply to a sale held by a receiver appointed by the Court
The High Court answered this question in the negative
Held that the High Court was right in refusing to entertain the appellant s applications under section 21 r 89
In a sale by the receiver lie is not required to issue a proclamation of sale as required by section 21 r 66 of the Code of Civil Procedure and as such the provisions of section 21 r 89 under which a sale proclamation is an essential element do not apply to a sale held by him
Minatoonnessa Bibee and Others vs Khatoonnessa Bibi and Others Cal
479 Golam Hossein Cassin Ariff vs Fatima Begam  jogemaya Dasee vs Akhoy Coomar Das Cal 140 Basir Ali vs Hafiz Nazir Ali Cal
124 and Rani Bala Bose and Others vs Hirendra Chandra Ghose and Others  considered
199 Held further that the High Court was right in holding that the court s jurisdiction could not be invoked in favour of the appellant under section 151 of the Code of Civil Procedure in view of the fact that he committed repeated defaults in spite of several opportunities given to him by the Court to pay the balance of the decretal amount and that this court would not interfere with the discretion exercised by the High Court in such circumstances
The order of the High Court confirming the sale by the receiver was not a conditional one
It gave an opportunity to the judgment debtor to pay the decretal amount in the manner prescribed by it failing which the sale was to stand confirmed
There is no scope for applying the principle that the court had inherent power to deal with an application to set aside an order made ex parte on a proper case being substantiated as laid down in section M Sudevi Devi vs Sovaram Agarwallah