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PETITIONER: O.   K.  GHOSH AND ANOTHER

       Vs.

RESPONDENT: E. X. JOSEPH

DATE OF JUDGMENT: 30/10/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1963 AIR  812            1963 SCR  Supl. (1) 789  CITATOR INFO :  D          1965 SC 311  (2,6,7)  R          1971 SC 156  (11)  R          1971 SC 966  (6)  F          1978 SC 771  (21)  R          1985 SC1416  (50)  RF         1991 SC 101  (263)

ACT: Services  Rules-Association  of  non-Gazetted  civil  staff- Withdrawal of recognition by Government-Proceedings  against Secretary   for  refusal  to   dissociate-Participation   in preparation  for  strike-Constitutional Validity  of  Rules- Central  Civil  Services (Conduct) Rules,  1955,  rr.  4(A), 4(B)-Constitution of India, Art. 19.

HEADNOTE: The  respondent, A Central Government servant, who  was  the Secretary of the Civil Accounts Association of  non-Gazetted Staff,  was departmentally proceeded against under rr.  4(A) and  4(B)  of the Central Civil  Services  (Conduct)  Rules, 1955, for participating in demonstrations in preparation  of a  general  strike of Central Government employees  and  for refusing  to  dissociate  from  the  Association  after  the Government   had  withdrawn  its  recognition  of  it.    He impugned, the validity of the said rules on the ground  that they  infringed his fundamental rights under Art. 19 of  the Constitution.   The High Court held that r. 4(A) was  wholly valid  but  quashed the proceeding under r. 4(B)  which  it held  to be invalid.  Rule 4(A) provided that no  Government servant shall participate in any demonstration or resort  to any form of strike in connection with any matter  pertaining to  his conditions of service and r. 4(B) provided  that  no Government servant shall join or continue to be a member  of any services Association which the 790 Government  did  not  recognise  or  in  respect  of   which recognition had been refused or withdrawn by it. Held,  that  in view of the decision of this Court  that  r. 4(A) of the Central Civil Services (Conduct) Rules, 1955, in

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so  far  as  it prohibited any  form  of  demonstration  was violative  of  the Government servants’  fundamental  rights under Art. 19(1) (a) and (b), the High Court was in error in holding that the rule was wholly valid. Kameshwar  Parsad  v.  The State of Bihar,  [1962]  supp.  3 S.C.R. 369, referred to. Participation  in demonstration organised for a  strike  and taking  active part in preparation for it cannot, either  in law  or  fact,  mean  participation  in  the  strike.    The respondent could not, therefore, be said to have taken  part in a strike as such and the proceeding against him under  s. 4(A)  being based on that part of it which was invalid  must also be invalid. It  was  clear that r. 4(B) of the said Rules  imposed  res- triction on the undoubted’ right of the Government  Servants under  Art.  19  which were neither reasonable  nor  in  the interest  of  public  order tinder Art.  19(4).   The  rules clearly  showed  that  in the granting  or  withdrawing,  of recognition,   the   Government   right   be   actuated   by considerations other than those of efficiency or  discipline amongst  the  services  or public  order.   The  restriction imposed by r.4 (B), therefore, infringed Art. 19(1) (c)  and must be held to be invalid. The  Super  tenant,  Central Prison, Fatehgarh  v.  Dr.  Ram Manohar  Lohia,  A.I.R. 1960 S.C. 633 and  Rex  v.  Basudev, [1949] F.C.R. 657, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 378 and 379 of 1962. Appeals  by special leave from the judgment and order  dated January  18, 1961 of the Bombay High Court in  Miscellaneous petition No. 255 of 1960. C.   K. Daphtary, Solicitor-General of India, B.   R.  L. lyengar and R. H. Dhebar, for the appellants  in C. A. No. 378/62 and respondents in C. A. No. 379/62. A.S.  R. Chari, M. K. Ranmmurthi, D. P. Singh, and S.  C: Agarwala,  for  the  respondent  in C.  A.  No.  378/62  and Appellant in C. A. No. 379162.                             791 1962.  October 30.  The judgment of the Court was  delivered by GAJENDRAGADKAR,  J.  The respondent E.X. Joseph  is  in  the service of the Government of India in the Audit and accounts Department  at  Bombay.  He was she Secretary of  the  Civil Accounts Association which consists of non-gazetted staff of the  Accountant-General’s Office.  The said Association  was affiliated to the All India Non-Gazetted Audit and  Accounts Association.  The latter Association had been recognized  by the  Government of India in December, 1956.  In  May,  1959, the Government withdrew recognition of the said Association. In  spite of the withdrawal of the recognition of  the  said Association,  the respondent continued to be  its  Secretary General   and  refused  to  dissociate  himself   from   the activities of the said Association, though called upon to do so.   As  a result of his activities, on or  about  June  3, 1960,  he  was  served with a charge-she  sheet  for  having deliberately  committed breach of Rule 4(b) of  the  Central Civil Services (Conduct) Rules, 1955 (hereinafter called the Rules).   Appellant No. 1 0. K.  Ghosh,  Accountant-General, Maharashtra,  who  held the enquiry,  found  the  respondent guilty of the charges levelled against him.  Accordingly,  a notice  to  show  cause why he should not  be  removed  from

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service was served on the respondent. On  July  25,  1960, appellant No. 1 served a  memo  on  the respondent intimating to him that it was proposed to hold an enquiry against him for  having deliberately contravened the provisions  of  Rule  4(A)  of the Rules in  so  far  as  he participated actively in various demonstrations organised in connection  with the strike of Central Government  employees and  had taken active part in the preparations made for  the said strike. On August 8, 1960, the respondent filed a I writ petition on the original side of the Bombay 792 High  Court  under Art. 226 of the Constitution  and  prayed that  a  writ of certiorari should be issued  to  quash  the charge-sheets  issued  against  him by appellant  No.  1  in respect  of the alleged contravention of Rules 4 (B)  and  4 (A) and a writ of prohibition should be issued prohibiting a appellant   No.   1  from  proceeding   further   with   the departmental  proceedings  against the respondent.   In  his petition, the respondent asked for other incidental reliefs. The  main  ground  on which the  respondent  challenged  the validity  of the departmental proceedings initiated  against him was that Rules 4(A) and 4(B) were void in so far as they contravened   the  fundamental  rights  guaranteed  to   the respondent  under  Art. 19(1) (a), (b), (c) and  (g).   This contention was resisted by appellant No. 1 and appellant No. 2, the Union of India, who had been impleaded as respondents to the said petition.  It was urged on their behalf that the impugned  Rules were valid and so, the claim for a  writ  of certiorari or writ of prohibition was not justified. The  writ  petition  was heard by a Division  Bench  of  the Bombay  High  Court.  On January 18, 1961,  the  High  Court rejected  the  petition  in so far  as  the  respondent  had claimed  writs in regard to the enquiry for breach  of  Rule 4(A);  the Court held that the said Rule was valid  and  so, the  departmental proceedings initiated against the  respon- dent in respect of the breach of the said Rule could not  be successfully impeached.  In respect of the proceedings under Rule  4(B), however, the High Court held that the said  Rule was invalid and so, the departmental proceedings in  respect of  the  breach of the said Rule have been quashed.   It  is against this decision that the appellants, the A.G. and  the Union  of  India,  have come to this  Court  by  Appeal  No. 378/1962; whereas E. X.Joseph the respondent, has  preferred Appeal No. 379/1962: Both the- appeals have been brought  to this Court by special leave. 793 The  appellants contend that the High Court was in error  in holding  that Rule 4(B) was invalid, whereas the  respondent urges  that  Rule 4(A) was invalid and the decision  of  the High  Court  to the contrary is erroneous  in  law.   Before dealing with the contentions of the parties, it is necessary to set out the two impugned Rules.  These Rules form part of a  body  of  Rules framed in 1955 under  Art.  309,  of  the Constitution. Rule   4-A  provides  that  no  Government   servant   shall participate  in any demonstration or resort to any  form  of strike  in  connection  with any matter  pertaining  to  his condition  of service,. whereas Rule 4-B lays down that  no Government servant shall join or continue to be a member  of any  Service Association of Government servants : (a)  which has  not, within a period of six months from its  formation, obtained  the recognition of the Government under the  Rules prescribed in that behalf, or (b) recognition in respect  of which has been refused or withdrawn by the Government  under

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the said Rules.  The case against the respondent is that  he has contravened both these Rules. The  question  about the validity of Rule 4-A has  been  the subject-matter  of  a  recent  decision  of  this  Court  in Kameshwar Prasad v. The State of Bihar (1).  At the  hearing of  the said appeal, the appellants and the  respondent  had intervened and were heard by the Court.  In that case,  this Court  has  held that Rule 4-A in the form in which  it  now stands  prohibiting any form. of demonstration is  violative of the Government servants’ rights under Art. 19(1)(a) & (b) and should, therefore, be struck down.  In striking down the Rule  in this limited way, this Court made it clear that  in so  far  as the said Rule prohibits a strike, it  cannot  be struck  down  for the reason that there  is  no  fundamental right  to resort to a strike.  In other words, if  the  Rule was (1)  [1962] Supp. 3 S.C.R. 369. 794 invoked  against a Government servant on the ground that  be had  resorted to any form of strike specified by Rule 4-  A, the Government servant would not be able to contend that the Rule was invalid in that behalf.  In view of this  decision, we  must hold that the High Court was in error in coming  to the conclusion that Rule 4-A was valid as a whole. That takes us to the question about the validity of Rule  4- B.   The  High  Court  has  held  that  the  impugned   Rule contravenes   the  fundamental  right  guaranteed   to   the respondent  by Art. 19 (1) (c).  The respondent  along  with other  Central  Government  servants  is  entitled  to  form Associations  or  Unions  and in so far  as  this  right  is prejudicially  Rule, the said Rule is invalid.  The  learned Solicitor  General  contends that in deciding  the  question about  the validity of the Rule, we will have to  take  into account the provision of clause (4) in Art. 19.  This clause provides  that Art. 19(1) (c) will not affect the  operation of  any  existing  law  in so far  as  it  imposes,  in  the interests   of   public  order   or   morality,   reasonable restrictions  on the exercise of the right conferred by  the said  sub-clause.   The argument is that the  impugned  Rule does nothing more than imposing a reasonable restriction  on the  exercise  of the right which is alleged  to  have  been contravened  and,  therefore, the provision of the  rule  is saved by clause (4). This  argument raises the problem of construction of  clause (4).   Can  it be said that the Rule  imposes  a  reasonable restriction in the interests of public order ? There can  be no  doubt that Government servants can  be  subjected  to rules  which  are intended to  maintain  discipline  amongst their  ranks and to lead to an efficient discharge of  their duties  Discipline  amount Government  employees  and  their efficiency  may,in a sense, be said to be related to  public order.   But in considering the scope of clause (4), it  has to be borne in mind that the rule must be  795 in  the  interests  of public order and  must  amount  to  a reasonable restriction.  The words "public order" occur even in clause (2), which refers, inter alia, to security of  the State and public order.  There can be no doubt that the said words  must  have the same meaning in both clauses  (2)  and (4).   So  far as clause (2) is concerned, security  of  the State  having been expressly and specifically provided  for, public’  order cannot include the security of State,  though in its widest sense it may be capable of including the  said concept.    Therefore,  in  clause  (2),  public  order   is virtually   synonymous   with  public  peace,   safety   and

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tranquility.  The denotation of the said words cannot be any wider in clause (4).  That is one consideration which it  is necessary  to bear in mind.  When clause (4) refers  to  the restriction imposed in the interests of public order, it  is necessary  to enquire as to what is the effect of the  words "in  the  interests  of".   This  clause  again  cannot   be interpreted to mean that even if the connection between  the restriction and the public order is remote and indirect, the restriction  can  be said to be in the interests  of  public order.  A restriction can be said to be in the interests  of public order only if the connection between the  restriction and  the public order is proximate and direct.  Indirect  or far-fetched or unreal connection between the restriction and public  order  would  not fall within  the  purview  of  the expression   "in  the  interests  of  public  order."   This interpretation  is strengthened by the other requirement  of clause  (4)  that., by itself, the restriction ought  to  be reasonable.    It  Would  be  difficult  to  hold   that   a restriction  which does not directly relate to public  order can  be  said  to  be reasonable  on  the  ground  that  its connection with public order is remote or far-fetched.  That is  another  consideration which  is  relevant.   Therefore, reading the two requirements of clause (4), it follows  that the   impugned   restriction  can,  be   said   to   satisfy as   the  test of clause (4) only if  its.  connection  with public order is shown to be rationally proximate and direct, 796 That  is the view taken by this Court in The  Superintendent Central   Prison, Fatehgarh v. Dr. Ram Manohar  Lohia,  (1). In the words of Patan jali Sastri .T., in Rex v. Basudev,(2) "the  connection  contemplated between the  restriction  and public order must be real and proximate, not far-fetched  or problematical."  It is in the light of this  legal  position that the validity of the impugned rule must be determined. It is not dispute that the fundamental rights guaranteed  by Art.  19  can be claimed by Government  servants.   Art.  33 which  confers power on the parliament to modify the  rights in their application to the Armed Forces, clearly brings out the  fact that all citizens, including Government  servants, are  entitled  to claim the rights guaranteed  by  Art.  19. Thus, the validity of the impugned rule has to be judged  on the  basis  that  the respondent and  his  co-employees  are entitled  to form Associations or Unions.  It is clear  that Rule 4-B imposes a restriction on this right.  It  virtually compels  a Government servant to withdraw his membership  of the  Service Association of Government Servants as  soon  as recognition accorded to the said Association is withdrawn or if,  after  the  Association is formed,  no  recognition  is accorded to it within six months.  In other words, the right to  form an Association is conditioned by the  existence  of the  recognition of the said Association by the  Government. If the Association obtains the recognition and continues  to enjoy it, Government servants can become members of the said Association ; if the Association does not secure recognition from  the  Government  or  recognition  granted  to  it   is withdrawn, Government servants must cease to be the  members of  the said Association.  That is the plain effect  of  the impugned  rule.  Can this restriction be. said to be in  the interests  of  public  order and can it be  said,  to  be  a reasonable restriction ? In our opinion, the only answer  to these  questions would be in the negative.  It is  difficult to see any direct or proximate (1) A.I.R. 1960 S.C. 633.  [1949] S.C.R. 657,661.  797 or  reasonable  connection between the  recognition  by  the

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Government  of the Association and the  discipline  amongst, and the efficiency of, the members of the said  Association. Similarly,  it  is difficult to see any  connection  between recognition and public order. A  reference  to  Rule  5  of  the  Recognition  of  Service Association  Rules recently made in 1959 would clearly  show that there is no necessary Connection between recognition or its   withdrawal  and  public  order.   Rule  5   enumerates different  conditions  by  clauses (a) to  (1)  which  every Service  Association must comply with; and Rule  7  provides that  if  a Service Association recognised  under  the  said Rules  has failed to comply with the conditions set  out  in Rule  4, 5, or 6, its recognition may be withdrawn.  One  of the  conditiOn imposed by Rule 5(1) is  that  communications addressed by the Service Association or by any office bearer on  its behalf to the Government or a  Government  authority shall  not contain any disrespectful or  improper  language. Similarly,  Rule 5(g) provides that the previous  permission of  the  Government  shall  be  taken  before  the   Service Association seeks affiliation with any other Union,  Service Association  or  Federation; and Rule 5  (h)  prohibits  the Service   Association  from  starting  or   publishing   any periodical,  magazine  or  bulletin  without  the   previous approval  of  the  Government.  It is not easy  to  see  any rational,   direct  or  proximate  connection  between   the observance of these conditions and public order.  Therefore, even  without examining the validity of all  the  conditions laid  down  by rule 4, 5 or 6, it is not difficult  to  hold that the granting or withdrawing of recognition may be based on considerations some of which have no connection  whatever either  with  the  efficiency  or  discipline  amongst   the Services or with public order.  It might perhaps have been a different  matter if the recognition or its  withdrawal  had been  based  on grounds which have a direct,  proximate  and rational connection with public order. That however 798 cannot  be said about each one of the conditions  prescribed by  rule  4, 5 or 6. Therefore, it is  quite  possible  that recognition may be refused or withdrawn on grounds which are wholly unconnected with public J.  order and it is in such a set-up  that  the right to form Associations  guaranteed  by Art.  19(1)(c) is-made subject to the  rigorous  restriction that the Association in question must secure and continue to enjoy  recognition from the Government.  We  are  therefore, satisfied  that the restriction thus imposed would make  the guaranteed  right under Art. 19(1)(c) ineffective  and  even illusory.   That is why we see no reason to differ from  the conclusion of the High Court that the impugned Rule 4-B is,’ invalid.   In the result, appeal No. 378/1962 fails  and  is dismissed. In  regard  to appeal No. 379/1962, though we  have partly reversed the conclusion of the High Court in respect of  the validity  of  the  whole of Rule 4-A. it  appears  that  the departmental proceedings initiated against the respondent in respect  of,the  alleged  breach  of rule  4-A  have  to  be quashed, because the alleged contravention of the said  Rule on which the said proceedings are based is contravention  of that part of Rule 4-A which has been held to be invalid  by this  Court.  The material charge against the respondent  in that  behalf  is  that he had  deliberately  contravene  the provisions  of  Rule 4-A in so far as  he  has  participated actively   in  the  various  demonstrations   organised   in connection  with the strike of Central Government  employees and took part in the preparations made for the said  strike. It  will be noticed that the result of the decision of  this

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Court  in Kameshwar Prasad’s(1) case is that in so  far  ’as the rule prohibits any form of demonstration, it is invalid. It is not invalid in so far as it may prohibit participation in  strikes.  The charge against the respondent is not  that he  participated  in  any strike ; the  charge  is  that  he participated  in the various demonstrations ; and that is  a charge based upon that part of (1)  [1962] Supp. 3 S.C.R. 369.  799 the  rule which prohibits demonstrations altogether.  It  is true that the demonstrations in which he is alleged to  have participated actively were organised in connection with  the strike  ;  but that does not mean either in fact or  in  law that  he participated in the strike itself.  Similarly,  the charge that he took active part in the preparations made for the  said strike, also does not mean in fact or in law  that he participated in the strike.  If he joined  demonstrations organised in connection with the strikes, or if he took part in  the preparations for the strike, it cannot be said  that he  took  part  in the strike as such, and  so,  the  charge cannot  be  reasonably construed to mean  that  his  conduct amounted  to  a contravention of the  rule  which  prohibits strikes.   Therefore,  though Rule 4-A is  partly,  and  not wholly,  invalid  as  held  by this Court  in  the  case  of Kameshwar  Prasad(1),  the  particular  charge  against  the respondent being on the basis of that part of the rule which is invalid, it must follow that the departmental proceedings based  on that charge are also invalid.  That is why  appeal No.   379/1962   must  be  allowed  and   the   departmental proceedings  instituted  against  the  respondent  for   the alleged  contravention by him of rules 4-A and 4-B  must  be quashed.  There would be no order as to costs. Appeal 378/62 dismissed. Appeal 379/62 allowed. (1) [1962] Supp. 3 S.C.R. 369. 800