JUDGMENT S.R. Singh, J.
1. The writ petition is directed against the Notification dated June 16, 1992 issued by the State Government under Section 3(a) of the U.P. Industrial Disputes Act, 1947 (herein after referred to as the Act) published in Extra Ordinary Official Gazette Uttar Pradesh under Section 19 of the said Act on the same date. The State Government in purported exercise of its power under Section 3(a) of the Act has prohibited lock-out in M/s. Prag Vanaspati Product for a period of 180 days w.e.f. the date of publication of the Notification in the Official Gazette. The notification being relevant for the purposes of discussing the controversy involved the case is quoted below:
2. M/s. Prag Varnaspati Product, the petitioner is a registered firm engaged in manufacture of Vanaspati. It is an Industry within the meaning of the term defined in Section 2(k) of the Act. The production in the petitioner-factory was, it is alleged, quite smooth and normal upto 1990 but in the month of January, 1991, the workers of the factory are said to have adopted go slow tactice and subsequently they are said to have indulged in further activities of lawlessness and of causing damage to the factory property as a result whereof, it is alleged, the petitioner was compelled to suspend the production in the factory in the month of February, 1991, though the payment of salary to the workers was not stopped and in order to discharge its liability to pay the salary to its workers continuously the petitioner took job work from the National Dairy Development Board, Noida which according to the petitioner was not liked by the workers' and their union and therefore, they deliberately commuted mischeifs by their action and in actions so as to delay the completion of job work undertaken by the petitioner from the national Dairy Development Board, Noida. In the circumstances stated herein before and as a result of acts of commission and omission amounting to mischief and negligence on the part of the workers, the petitioner had to pay about Rs. 3,00,000/- (three lacs only) as damages to the National Dairy Development Board. It is alleged that on the one hand workmen made it impossible for the petitioner to run the factory and on the other they were not allowing by their illegal and unlawful activities, the finished stock to be moved out of the factory. The petitioner had to write a letter to the secretary, Vanaspati Workers Union on November 20, 1991 stating therein that in that the members of the Union were indulging in anti-social and unlawful activities and they were not permitting the petitioner to have access to the record of the factory nor were they permitting the petitioner's executives and officials to load, unload, shift and remove the raw materials, chemicals and their products lying in the factory premises resulting in great monetary loss to the petitioner. It is also alleged that illegal and unlawful activities and unruly behaviour of the workers continued despite informations to the District Administration, namely, the District Magistrate and the police authorities and, therefore, it is alleged, the petitioner was compelled to issue notice to the workmen informing them that the petitioner proposed to declare lock-out w.e.f. November 30, 1991 in various Departments of the factory specified in the notice dated November 9, 1991.
3. Despite notice to declare lock-out the situation did not improve and workmen, it is alleged continued to harass the petitioner in every possible manner due to which the petitioner had to declare lock-out in the factory premises w.e.f. November 30, 1991 at 8 a.m. It is also alleged that despite declaration of lockout the situation did not improve and the District Administration viz. the District Magistrate and the Senior Superintendent of Police, Aligarh failed to provide requisite, protection despite request.
4. It is also alleged in the writ petition that in the wake of ever increasing incidents of lawlessness at the behest of the workmen and due to the apathy and indifference on the part of the District Administration in providing any protection to the factory property and to the life of executives and officials of the factory, the petitioner had to send a communication dated December 17, 1991 to the Minister of Labour Department, Government of Uttar Pradesh with a copy endorsed to the Chief Minister, inter alia, praying for a direction to the District Administration to provide protection to the factory and its property and to permit the petitioner to remove the raw materials including chemicals and other stocks which were lying inside the factory, so that the raw materials, chemicals and stocks may be saved from any likely destruction due to repeated attempts being made at the behest of the workers to cause damage to the factory property. But it is alleged, no concrete help and protection was given to the petitioner instead its partner was made to run from Officers of the Labour Department to the District Administration and vice-versa and that neither the State Government nor the District Administration rendered any help to the petitioner to restore normalcy in the factory.
5. The petitioner had to file a writ petition in this court and a Division Bench of this Court, by an interim order dated January 7, 1992, directed the District Magistrate to take appropriate steps so as to ensure such protection to the petitioner as may be available to it under law but, it is alleged, the District Administration could not provide any assistance and help to the petitioner despite service upon them of the aforesaid order of the High Court.
6. It is further alleged that the Secretary, Labour Department, Government of Uttar Pradesh by his letter dated January 15, 1992 asked the Labour Commissioner to go to the site and settle the dispute amicably. Thereafter a settlement was arrived out between the petitioner and the Union of workers on January 31, 1992 which visualised that the petitioner would remove from the factory premises goods worth Rs. 50,00,000/- and the workmen would not create any hindrance in that regard so that the petitioner may meet its liability to pay salary to the workmen. But despite the above settlement, it is alleged, the workers did not permit the petitioner to remove the goods. The Additional Labour Commissioner is said to have been informed accordingly by means of telegraphic message.
7. Under the aforesaid among other circumstances stated in the writ petition the lock-out originally declared was extended for an additional period of three months commencing from February 29, 1992 and ending on May 25, 1992. It is further alleged in the writ petition that as per settlement referred to above, discussions on the issue of lock-out and its removal were to commence only after the entire liability of the petitioner had been discharged with the cooperation of the workers, but the workmen did not discharge their obligation envisaged in the settlement, the petitioner was called upon by the Deputy Labour Commissioner, Agra Range, Agra vide letter dated May 16, 1992 to appear before him on June 16, 1992 and on the same date the State Government issued the impugned Notification.
8. I have heard Shri Dinesh Dwivedi, learned counsel for the petitioner, Sri S.D. Dubey, learned Standing counsel appearing for the respondent No. 1 and 2 and Sri R.K. Jain, Learned Counsel appearing for the Worker's Union.
9. The first ground on which the validity of the Notification was assailed by the Learned Counsel for petitioner is that once the lock-out was declared, there was no question of its prohibition in as much as once the lock-out is declared it becomes a case of Industrial Dispute under Section 4-K of the Act and thereafter recourse in Section 3 of the Act is not permissible under law.
As such proceeds the submission, the impugned notification issued by the State Government in purported exercise of its power under Section 3 (a) of the Act suffers from taint of illegality.
10. Section 3 of the Act in so far as it is relevant to the controversy involved in the present case, is quoted below:
"3. Power to prevent Strikes, Lock-outs, etc If, in the opinion of the (State Government) it is necessary or expedient so to do for securing the public safety or convenience or the maintenance of public order or supplies and services essential to the life of the community, or for maintaining employment, it may, by general or social order, make provision.
(a) for prohibiting, subject to the provisions of the order, strikes or lock-outs, generally, or a strike or lock-out in connection with any industrial dispute:"
11. The expression, "the State Government may make provisions for prohibiting lock-outs" occurring in the Section when read in the context of maintenance of public order, public safety and employment etc. would make it clear that the State Government may exercise the power under Section 3 of the Act not only in respect of any proposed lock- out but it can also exercise the power in the case, as in the present one, where the lock-out has already been declared. The expression is of wide amplitude and comprehends within its ambit making of any provision prohibiting continuance of lock-out for, in a given case, prohibition or the continuance of lock-out may be considered necessary for securing maintenance of public order or maintaining employment etc. As such the submission made by the learned counsel for the petitioner that prohibition of lock-out under Section 3(a) of the Act was not permissible after declaration of lock-out is wide of the mark. The fact that lock-out may give rise to an industrial dispute is also no ground to hold that the State Government is not competent to take recourse to the provisions of section 3 of the Act, even though in the facts and circumstances of a given case, government finds it to be necessary to make provision prohibiting continuance of lock-out for the maintenance of public order, public safety and employment etc.
12. The second ground on which the validity of the impugned notification was assailed by the Learned Counsel for the petitioner is that the order contained in the impugned Notification is void having been made without affording opportunity of hearing to the petitioner.
13. In order to appreciate the submission made by the Learned Counsel, the nature, extent and purport of power under Section 3 as also the object of enactment of Section have to be examined.
14. So far as the nature and purport of power of the Government under the section are concerned, it is evident that the power under Section 3 of the Act is an emergency power intended to subserve larger public interest. The Section empowers the State Government to meet a potentially explosive situation the extent and reach of which go for beyond the ambit of industrial peace and harmony and which has the potentiality to disturb public safety or convenience, public order or supplies and services essential to the life of the community as a whole.
15. It is evident from the language employed in the Section and it was also not disputed at Bar that the conferment of the power under the Section is formulated in a subjective language meaning thereby that assertion of the State Government in the Notification issued under the section as to the existence of condition precedent has to be taken to be true and the courts generally refuse to go behind the assertion that they (Government) were satisfied as to the existence of the condition precedent which need not be determined objectively. But before making any provision under the Section for prohibiting lock-out, the State Government has to form an opinion that it is necessary or expedient so to do for securing the public safety or convenience or the maintenance of public order or supplies and service essential to the life of the community, or for maintaining employment and the formation of opinion, must be supported by evidence. The Court's power of interference is confined to the grounds of non-existence of facts on which the opinion could lawfully be formed or on the ground of mala fide (see Raja Anand v. State of U.P., A.I.R. 1967 S.C. 1081 and Kailashwati v. State of U.P. A.I.R. 1978 Alld. 181). Requisites opinion as to existence of condition precedent may be formed by the State Government subjectively and on objective assessment of evidence is not required.
16. The function of the State Government under Section 3 of the Act can be described exclusively neither as legislative nor as administrative. Both the legislative and administrative functions of State are inter mixed and interwoven under Section 3 of the Act. The expression "the State Government may by general or special order, make provision for prohibiting strikes or lock-outs, generally or strike or lockout in connection with any industrial dispute occurring in Section 3 of the act visualises certain element of subordinate legislative function of the State envisaged by the Section, and at the same time, looking to the object and purpose of the Section and the manner in which the decision under the Section is taken by the State Government and the impact of the decision upon the Industry-owner on the one hand and the workers and the public at large on the other, it can be said that the State Government while exercising power under Section 3of the Act also discharge an administrative function and to some extent a quasi-judicial function. Even if it is held that the function of the State Government Under Section 3 is purely administrative it would make no difference so far as applicability of natural justice is concerned for as held by the Supreme Court in State of Orissa v. Dr. (Miss) Binapani Dei and Ors. 1967-II-LLJ-266; A.K. Kriapak and Ors. v. Union of India and Ors. ; Mohinder Singh Gill's case A.I.R. 1978 S.C. 851; Union of India and Ors. v. C.C. Nambudiri, J.T. 1991 (2) S.C. 285 and numerous other cases that old distinction between judicial act and administrative act has withered away and the principles of natural justice now apply unless excluded, expressly or impliediy, even in the administrative field if the administrative action has "civil consequences" which undoubtedly cover infraxation or not merely property or personal rights but of Civil liberties as well.
17. According to Prof. Wade (Administrative Law: H.W.R. Wade, 6th Edition P. 46-47), "a judicial decision is made according to law. An administrative decision is made according to administrative policy. A quasi-judicial function is an administrative function which requires to be exercised in special respects as if it were judicial. The quasi-judicial decision is, there-fore an administrative decision which is subject to some measures of judicial procedure, such as principles of natural justice."
18. The concept of natural justice has many aspects. Which aspect of the natural justice is to be complied with in a particular case depends upon statutory context in which the power is exercised and many other considerations. The submission of the learned counsel for the petitioner was confined to only one aspect of the principal of natural justice which is understood in the sense of giving opportunity of hearing i.e. audi-alteramparter rule. The question, therefore, that requires consideration is as to whether the observance of audi-alteram-partem rule before making an order under Section 3 of the Act is sinequa-non, for validity of the order.
19. True, where power becomes exercisable when the competent authority is "satisfied" or when it "appears" to that authority or where the authority is of "opinion" that a prescribed state of affairs exists, it is said that the conferment of power is subjectively worded but the fact that the grant of power has been conferred in subjective terms does not now create a presumption that due observance of natural justice in determining the condition of power under Section 3 of the Act being the security of public safety or convenience or maintenance of public order or supplies and service essential to the life of the community or maintenance of employment, delay in taking action may frustrate the object of the conferment of power under the Section and delay is bound to occur if observance of audi-alteram-partem rule before making the order under the section is insisted upon. Accordingly I am not prepared to hold that a prior notice and opportunity of hearing is a must for a valid order under the section. Looking to the purpose and object sought to be achieved by Section 3 of the Act, it appears to me that the observance of audi alteram-partem rule before making an order is not feasible. Post decisional hearing may be held sufficient compliance with audi-alteram-partem rule of natural justice in the context of Section 3 of the Act.
20. In Administrative law, according to D. Smith's Judicial Review on Administrative Action 4th Edition P. 184-91, a prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action especially action of preventive or remedial nature. The relevant passage reads as under:
"The purpose of giving the executive powers to detain security suspects in war time of grave emergency would plainly be frustrated if the suspect were entitled to prior notice of its intentions. Summary action for the maintenance of public security or public, order in normal times may also be permissible."
The interest of public safety or public health may similarly justify summary interference with property rights as where an inspector from the Ministry of Agriculture destroys infected crops, or dangerous nuisance is abated without notice in the exercise of common law powers or a public official deinfests verminous articles offered for sale, or an administrative order is made prohibiting smoking in a theatre. That urgency may warrant disregard of the audi-alteram-par-tem rule in other situations is generally conceded; there will be disagreement, however, in the circumstances in which a deviation ought to be permissible."
21. Though the audi-alterm-partem rule is impliedly excluded from the purview of Section 3 of the Act, it is now too well settled that fairness, absence of arbitrariness and want of malafide in every state action, whether legislative, Administrative or quasi judicial is a must for its sustainance and validity judged on the touch stone of rule of law which is regarded as all pervasive under the Constitution of India.
22. In Neelima Misra v. Harinder Kaur Paintal and Ors. (1990) 2 S.C.C.746 the Supreme Court while examining the powers of Chancellor under Section 31 (8) of the U.P. State Universities Act, 1973 has observed as under:
"The Chancellor, however, has to act properly for the purpose for which the power is conferred. He must lake a decision in accordance with the provisions of the Act and the statutes. He must not be guided by extrenous or irrelevant or arbitrarily. Any such illegal, irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi-judicial exercise of power is liable to be quashed being violative of Article 14 of the Constitution. As stated in E.P. Royappa v. State of Tamil Nadu 1974-I-LLJ-172 equality and arbitrariness are sworn enemies; one belongs to rule or law in a republic while the other, to the whim and caprice of an absolute monarch". The principle of equality enshrined in Article 14 must guide every State action, whether it is legislative, executive, or quasi judicial, see Maneka Gandih v. Union of India, Ajay Hasia v. Khalid Mujib Sharavardi, Som Raj v. State of Haryana."
23. Accordingly, I am of the view that while acting under Section 3 of the Act, the State Govt. is not required to observe audi-alteram-partem rule, but at the same time I am also of the view that the formation of opinion must be bonafide one and it must be based on material valid on the question as to the existence of the conditions precedent for making provision prohibiting lock-out and since exercise of the power under the Section entails civil consequences and may amount to interference with the fundamental right of industry owner under Article 19 of the Constitution as also his legal right to declare lock-out, duty to act fairly and in consonance with the principles of natural justice-as the term is understood in broad sense of reasonableness and absence of mala-fide is implied. In my opinion the post decisional hearing may be held sufficient in the context of the purpose and object of enactment of Section 3 of the Act and, hearing through representation would meet the requirement of audi-alteram-partem rule. In the instant case post decisional hearing was given to the petitioner pursuant to observations, made by this Court in its interim order dated June 24, 1992 and that State Government did pass an order dated August 1, 1992 disposing of the representation made on behalf of the petitioner.
24. The next question to be considered is as to whether there was valid material before the State Government and whether formation of requisite opinion as to existence of conditions precedent for invoking power under Section 3(a) of the Act was bona fide.
In paragraph 5 of the short counter affidavit filed by Sri V.N. Tiwari, Assistant Labour Commissioner, Agra, it has been asserted that there did not exist any condition precedent to invoke lock-out and that the employees created camouflage of lock-out and it is further asserted therein that the lock-out affected total employment in the factory adversely. The Secretary of Vanaspati Workers Union, Aligrah is said to have sent representation to the management of the factory with copies and endorsed to the Deputy Labour Commissioner, Agra, Labour Commissioner. U.P. Kanpur, District Magistrate, Aligarh, Senior Superintendent of Police, Aligarh, Chief Minister, Uttar Pradesh and the Prime Minister of India with request to intervene in the matter in the interest of employment and Industrial peace and Harmony. In paragraph 6 of the same short counter affidavit there are reference to some more representations made on behalf of the President of Employees Union to various authorities including Secretary, Labour Department, Government of Uttar Pradesh, Lucknow and in paragraph 7 it is averred that the Deputy Labour Commissioner, Agra sent a D.O. letter no. 180153-54, dated December 21, 1991 to Sri. J.S.P.. Pandey, Additional Labour Commissioner, U.P. Kanpur with a copy endorsed to the Joint Secretary, Labour Anubhag-I U.P. Government, Lucknow and further that the Deputy Labour Commissioner, U.P. Government to invoke the provisions contained in Section 3 of the Act. In paragraph 8 of the said short counter affidavit it is further averred that District Magistrate also submitted a separate report to the Labour Department U.P. Government, Lucknow requesting him to invoke the emergency provisions contained in the Act and, according to the averments made in paragraph 9 of the said short counter affidavit, the State Government considered the entire material submitted before it by the Labour Department as well as the District Magistrate. Aligarh and applied its mind before involving the provisions contained in Section 3 of the Act and issued the impugned Notification prohibiting lock-out for 180 days "in the interest of maintaining public order and for maintaining the employment". It is thus evident that the procedure and manner in which the requisite opinion was formed by the State Government cannot be termed as unfair or arbitrary and the impugned order cannot be assailed on the ground that fair procedure for the formation of requisite opinion was not adopted by the State Government.
25. In my opinion the reports referred to in the short counter affidavit to constitute a valid material for the purposes of formation of opinion hi one way or the other under Section 3 of the Act but to me it appears that the reports submitted by the Regional Dy. Labour Commissioner and the District Magistrate were not examined and considered in a correct perspective and impugned orders dated June 6, 1992 and August 1, 1992 are to my mind vitiated due to non-application of mind to the material on record in true perspective of the purport and import of Section 3 of the Act.
26. The impugned order dated June 16, 1992 for prohibiting lock-out under Section 3(a) of the Act in respect of the petitioner-factory though not vitiated due to non observance of audi alteram-partem rule before making the order nor even due to the reason that it was made after the declaration of lock-out, is liable to be held invalid and ineffective on the ground that the Government have not really made any "provision" for prohibiting lock-out apart from issuing a notification under Section 3(a) read with Section 19 of the Act prohibiting lock-out in the petitioner factory for 180 days and also for non application of mind in a correct perspective to the reports submitted by the Regional Deputy Labour Commissioner and the District Magistrate.
27. The expression "the State Government may make provision for prohibiting, subject to the provisions of the order, strikes or lock-out" occurring in Section 3(a) of the Act is of a wide import and significance. To my mind it comprehends and visualises making of a provision for something more to be done by the Government than mere passing of an order prohibiting strikes or lock-out. The exercise of power, as discussed herein before, tends to interfere with the fundamental and legal rights of the industry owner and that is why the Legislature has used the words State Government may make provisions" in the Section for the purpose of prohibiting strikes or lock-outs generally or a strike or lock-out in connection with any industrial dispute. According to the New Lenicon Webster's Dictionary of the English Language the word 'provision' means (a) providing or being provided preparation; make provision for six new arrivals; a supply or stock; a law issued. "The use of the expression 'make provision' and 'subject to the provisions of the Order' in the Section, in my opinion, suggests that mere order prohibiting lock-out in a facotry without making any provision for prohibiting lock out in factory without making any provision for prohibiting lock-outs would be no order within the meaning of Section 3(a) of the Act. To illustrate, in the present case, the initial cause for the declaration of lock-out is said to be slow-go tactics adopted by and other acts of mischief and lawlessness of the workman causing damage to the factory property and the cause for extension of lock-out in the factory is attributed to loss suffered by the petitioner in the background of the facts stated herein before and other financial reasons. I am of the considered view that in a situation like this it would be unjustified interference with the fundamental and legal rights of the petitioner to prohibit lock-out without making a provision, subject, of course to the provisions of the order, providing for financial assistance and adequate security to life of the executives and officials working in the factory and to its property in order to make it reasonably viable for the petitioner to restart work in the factory or to opt for its closure according to law. No owner of a factory can be compelled to run the factory at the risk of his life and property nor can he be compelled to run the factroy even though his financial position is not sound enough to keep the work in the factory going on. In such circumstances if the Government thought it necessary to prohibit lock-out, it ought to have made appropriate provisions under section 3(a) of the Act to meet with the problems which resulted into declaration of lock-out and its further continuance.
28. The order dated August 1, 1992 passed on the petitioner's representation made pursuant to the interim order of this Court does not improve the situation. The Government do not appear to have applied its mind at all to real problem which gave rise to declaration of lockout and its continuance nor do they appear to have examined the implications of the following fact stated in the D.O. Letter dated December 12, 1990 of the Regional Deputy Labour Commissioner to the Additional Labour Commissioner, U.P.;
"Yah Ullekhaniyahat ki sewayooakonka yah kathan kai ki ab tak we shramikon ko vetan kapurabhuktan kar rahe the. Paranty ab unke pas man October/November 91 ke vetan ka bhutam karae ke liya kot vittiya vyawastha nahiun hai. Ab wey kewal kachchemal ththa taiyar mal kivkrikar sakte hain. Parantu shramik mali kon kardhanse se kiklne nahin dete nahim is stithi se zila magistrate aligarh ko avgat kara diya gaya hai. Bartman me pratisthan me utpadan band chal raha hai aut shramik pratisthan ke gate per baithe rahte hain tath narbaji bhi karte hain. Agrim jo bhi stithi banegi yathawatavgatkarai havehi."
29. The District Magistrate in his letter dated 13/127 December 1991 addressed to the Secretary, Labour Department, Government of Uttar Pradesh had stated, "D Nnak May 26, 1991 S.C. M/s. Prag Vanaspati products me utpadan karyk band kar diya gaya hai. Shramikon ko kisi prakar pure vetan ka bhuktan kiya jata raha hai."
30. The aforesaid letters do support the petitioners case that its financial position at the moment is not in good shape and that the peace and harmony in the campus is disturbed. The state Government in its order dated August 1, 1992 have no doubt noted the contention of the petitioner about its financial condition being poor and about the violent attitude of the workmen but even then they have done nothing and made no provision to restore harmony and ameliorate the financial condition of the petitioner in larger public interest to enable the petitioner to re-start the factory. In this view of the matter I am of the opinion that the impugned orders dated June 16, 1992 and August 1, 1992 are not sustainable in law.
31. In the result the petition succeeds and is allowed. The impugned orders dated June 16, 1992 and August 1, 1992 are held invalid, inoperative and ineffective. The State Government shall be at liberty to make fresh orders in accordance with law and in the light of the observation made in the body of the judgment.