P L D 1961 Dacca 21 (PLP)

8. In my considered opinion, when A offers a job to B and B accepts it, there is ordinarily an inherent obligation on the part of both to fulfil his own part unless otherwise terminated or provided. In this case, the strikers did not say that they would not work under the Company or that they were not labourers of the Company but they gave notice of the strike to the Company to the effect that they would go on strike unless their demands were complied with, which means that they claimed to be workers under the Company. Therefore, in my opinion, the strike would be illegal if it comes within the mischief of Industrial Dis putes Act.

9. Notice of the strike was given by Exh. A, a letter, dated the 27th of October 1957 ; reference to a Tribunal was made on the 8th of November 1957, and the same along with the constitution of the Tribunal was published in the Gazette on the 8th of November 1957, and the strike was launched on the 10th of November 1957. Clause (b) of section 23 of the Industrial Disputes Act makes strikes illegal by workmen employed in any industrial establishment in breach of contract during the pendency of proceedings before a Tribunal and two months after the conclusion of such proceedings. Subsection (3) of section 20 of the said Act provides: "Proceedings before a Tribunal shall be deemed to have commenced on the date of the reference of a dispute for adjudication and such proceedings shall be deemed to have concluded when the award is published by the appropriate Government under section 17, or, where an award has been laid before the Legislative Assembly (or Central Legislature) under the proviso to subsection (2) of section 15, when the resolution of the Legislative Assembly (or Central Legislature) thereon is passed." So, in my opinion, the recent strike being during the pendency of a reference to a Tribunal was illegal and, as such, punishable under section 26(1) of the said Act.

10. Secondly, it has been urged on behalf of the petitioners that the strike would not be illegal inasmuch as the petitioners could not join their duties as a lock‑out was declared by the Company. This point has also no substance in it, as there is evidence on record to show that the lock‑out was declared in consequence of the strike by the petitioners.

11. Thirdly, it has been contended on behalf of the petitioners that there cannot be any punishment under subsection (1) of section 26 of the Industrial Disputes Act in the absence of any mens rea; and in support of this contention it has been argued that there is neither any finding nor any evidence in this case to show that the petitioners had knowledge of the reference or that they had any notice of the same. In order to appreciate this point, it is necessary to refer to subsection (1) of section 26 of the Act which makes punishable any workman who commences, continues or otherwise acts in furtherance of, a strike, which is illegal under this Act, with imprisonment for a term which may extend to one month, or with fine which may extend to fifty rupees or with both.

12. The question of notice, comes in when mens rea is an essential ingredient. Mens rea or a guilty mind is, with some exceptions, an essential element in constituting a breach of the criminal law. A statute, however comprehensive or unqualified it be in its language, is ususally understood as silently requiring that this element be imported into it, unless a contrary intention be expressed or implied. The general rule of law is that no crime can be committed unless there is mens rea. On the same principle an act done under an honest and reasonable belief in the existence of a state of things would not, in general, fall within a statute which prohibited it under a penalty. But at the present time there is a large body of municipal law which has been framed in such terms as to make an act criminal without any mens rea.

13. To quote article 508 of Volume 10, 3rd Edition, of Halsbury's Laws of England, will serve the purpose. "A statutory crime may not contain an express definition of the necessary state of mind. A statute may require a specific inten tion, malice, knowledge, wilfulness or recklessness. On the other hand, it may be silent as to any requirement of mens rea, and in such a case in order to determine whether or not mens tea is an essential element of the offence, it is necessary to look at the objects and terms of the statute. In some cases, the Courts have concluded that despite the absence of express language the intention of the Legislature was that mens tea was a necessary ingredient of the offence. In others, the statute has been interpreted as creating a strict liability irres pective of mens tea. Instances of this strict liability have arisen on legislation concerning food and drugs, liquor‑licensing, and many other matters".

14. It is further seen from this volume (Halsbury's Laws of England, 3rd Edition, Vol. 10) that the basic rule of interpretation of statutes is that unless a statute clearly or by necessary implica tion rules out mens tea as a constituent part of a crime, the Court should not find a: man guilty of an offence against the criminal law "unless he has a guilty mind." In the case of Daluram Behani v. The State (7 P L R (Dac) 1168), a Division Bench of this Court held that whether mens tea was an ingredient of an offence under an Ordinance depended upon the construction of the Ordinance.

15. Having in view these rules of interpretation of statutes, we are to see whether the present strike in question is punishable under subsection (1) of section 26 of the Industrial Disputes Act which runs as follows: "Any workman who commences or otherwise acts‑ in furtherance of a strike which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to fifty rupees or with both." From the above it will be seen that the section quoted above is silent about mens rea. It means any illegal strike punishable under the Act. I have already stated‑ that a strike during the pendency of a proceeding before a Tribunal or two months after the conclusion of such proceeding is illegal.

16. Moreover the object of the Act is to make provisions for the investigation and settlement of industrial disputes, and section 26 (1) of the Act provides that any workman who commences; continues or otherwise acts in furtherance of a strike which is illegal under the Act is punishable. Furthermore, a distinction has been made by the Legislature in some sections of the Act relating to an offence. In sections 26, 27, 29 and 31 of the Act no mens tea has been mentioned and mere violation of the provisions of these sections has been made punishable, whereas, in sections 28 and 30 of the Act, mens tea has been made an essential element to constitute an offence. In my opinion, the object and the terms of the Act go to show clearly that mens rea is not an essential element in constituting an offence under section 26 of the Act. The object of the Act is the speedy settlement of an industrial dispute. If mens rea be considered an essential element, then the object of the Act will be frustrated as, in that case, strikes and lock‑outs may be going on and a vicious atmosphere may be created which will obstruct all attempts to investigate into the matter and settle the disputes between the parties.

17. Mr. Abdul Hye Chowdhury has strenuously argued that the petitioners have the right to declare a strike under the statute and, unless reference to the Tribunal is brought to their notice, they cannot be found guilty. For this, he has relied on the following passage in Maxwell on the Interpretation of Statutes "But where a person does an act, lawful in itself, but which has become unlawful as a result of some action entirely unknown to him by some other person not his servant or agent, it is said that he will not be liable even though mens tea is not a constituent of the offence." The above passage, in my opinion, has no application to the present case. Here, though the petitioners initially had the right to go on strike, they had no right to launch the strike after the reference was made by the Government to the Tribunal inasmuch as any strike thereafter will be illegal. Hence, I find that there is no substance in this contention of the learned Advocate for the petitioners.

18. Mr. Hye Chowdhury for the petitioners has also advanced some arguments on two other grounds, namely, the charge is vague in the present case and the examination of the accused under section 342 of the Code of Criminal Procedure was not a proper one. I have gone through the charge as also the examination of the accused under section 342, Cr. P. C. and I do not find any substance in this contention. The charge is a simple one and the evidence of the witnesses is also not complicated. In my opinion, in the facts and circumstances of the case, the examination of the accused under section 342 of the Criminal Procedure Code has not, in any way, prejudiced the petitioners. Hence, I do not find any substance in the contention of the learned Advocate for the petitioners.

19. In the result, the Rule is discharged. K. B. A. Rule discharged.