S. Ramachandra Ayyar, C.J.

This is an appeal under Cl. 15, the Letters Patent, by the East Asiatic Company (India) (Private), Ltd., Madras, referred to hereafter as the "management," against the judgment of Veeraswami. J., declining to issue a writ sought by them to quash the award passed by the labour court at Madras, directing the reinstatement of worker S. V. Chandran with back-wages by the management. S. V. Chandran entered the service of the management as a clerk in its establishment in the year 1950. During the time material to the present dispute, he was employed in the X-ray department at its godown at Royapuram. Chandran was an active member of the Employees' Union and he had also been declared as a "protected workman" within the meaning of S. 33 of the Industrial Disputes Act.

On 11 July 1960 the employees of the Central Government went on strike with a view to obtain redressal of certain grievances. Three days earlier, the President of India had promulgated an Ordinance called the Essential Services Maintenance Ordinance, 1960. That enabled the Central Government, by a general or special order, to prohibit strikes in any essential service. The term "essential service" was defined by the Ordinance. Section 5 of the Ordinance penalized a person who instigated or incited other persons to take part in or otherwise act in furtherance of a strike, which was made illegal under the Ordinance.

The management, in the instant case, apprehending a strike by its own employees, put up a notice on 13 July 1960 warning them from staging any token or sympathetic strike or absenting themselves from duty without permission on 14 July 1960. But the notice had no effect. About four hundred workers, of whom Chandran was one, absented themselves. There can be little doubt that they did so in concert under a common understanding not in respect of any grievance that they had against the management but for a wholly extraneous reason. It was further stated that Chandran went to the show-room of the management at Mount Road and tried to dissuade two of the workers there from attending to their work. On the very same day the management issued individual notice to all the employees who did not attend that day, calling for an explanation why disciplinary action should not be taken against them. Chandran, however, was dealt with separately, because he, according to them, not merely absented himself from work that day but also tried to prevent people, who were willing to work, from so doing. After considering the explanation offered by the other workers, the management imposed a cut in their wages for the day on which they absented themselves. Chandran, as we said, was called on to explain not merely in regard to his absence on 14 July 1960 contrary to the directions given by the management the previous day, but also for actively preventing willing workers from reporting for duty. His explanation being found unsatisfactory, a charge was framed against him on 27 July 1960 in the following terms :

"Contrary to the orders of the management conveyed through their notice dated 13 July 1960, you absented yourself without permission on 14 July 1960 and acting in concert with ten or more members of the staff went on strike on 14 July 1960 without any notice or justification whatsoever. You were also found present within the premises of our show-room at Mount Road, Madras, on 14 July 1960 engaged in instigating one or more employees not to work." *

It will be noticed that the first part of the charge was common to Chandran as well as to the other workers who absented themselves from duty on that date. The second part, which is special to him, charged him with instigating others not to work. There is, however, nothing in that charge accusing the worker of acting in furtherance of the strike, which was illegal under Ordinance I of 1960. Indeed, it cannot be said that the sympathetic strike of the workers under the management in the instant case was o