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PETITIONER: RADHEY SHYAM SHARMA

       Vs.

RESPONDENT: THE POST MASTER GENERAL CENTRAL CIRCLE NAGPUR

DATE OF JUDGMENT: 23/03/1964

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C. AYYANGAR, N. RAJAGOPALA SIKRI, S.M.

CITATION:  1965 AIR  311            1964 SCR  (7) 403

ACT: Fundamental  Right-Postal  employee  taking part  in  a  de- monstration   in   furtherance   of   the   strike-Ordinance prohibiting  strikes in any postal, telegraph  or  telephone service-Constitutioality  of-Essential Services  Maintenance Ordinance,  No.  1 of 1960, ss. 3,4  and  5-Constitution  of India, Arts. 19(1) (a), 19(1)(b).

HEADNOTE: The  petitioner  was serving as an  officiating  Teleprinter Supervisor  at  Jaipur when the employees of the  Posts  and Telegraphs  Department went on strike from the  midnight  of July  11,  1960, throughout India and there  was  a  similar strike at Jaipur.  The petitioner’s case was that he was  on duty that day from 12 noon to 8 p.m. and after his duty  was over, he did not go home but went to the dormitory where  he fell asleep as he was tired.  On hearing some noise he  woke up  at 11-30 p.m. and wanted to go home but was arrested  by the   police  under  the  Essential   Services   Maintenance Ordinance,  No. 1 of 1960.  The criminal charge was  however withdrawn.   On July 21, 1960, a chargesheet was  served  on the petitioner in the following terms:               "That   Shri   Radhey  Shyam  Sharma   I   C/S               Telegraphist,   CTO  Jaipur  committed   gross               misconduct in that on the midnight of the 11th               July, 1960, he took part in a demonstration in               furtherance  of  the  strike of the  P.  &  T.               Employees  in  violation of the  orders  dated               8-7-1960  issued  by the Government  of  India               under  the  ’Essential  Services   Maintenance               Ordinance,  1960  (1  of  1960)’   prohibiting               strikes in any Postal, telegraph or  telephone               service". The  enquiry  officer  found him guilty of  the  charge  and ordered that his pay should be reduced in the time scale  by three  stage,% for a period of two years and on  restoration the  period of reduction was not to operate to postpone  his future   increments.   0n  appeal,  the   Director   General considered  the  whole  matter on merits  and  rejected  the

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appeal.   In  this Court it was urged  that  the  punishment imposed upon the petitioner was violative of his fundamental rights  under Arts. 19(1)(a) and (b), reliance being  placed on  two cases of this court in Kameshwar Prasad v. State  of Bihar  and O. K. Ghosh v. E. X. Joseph; that ss. 3, 4 and  5 of the Ordinance were ultra-vires, as they contravened  Art. 19(1.)(a) and (b) and that in any case there was no evidence on which it could’ be found that the charge against him  had been proved. Held:     The provisions of the Ordinance in ss. 3, 4 and  5 did  not  violate the fundamental rights enshrined  in  Art. 19(1)(a) and (b).  A perusal of Art. 19(1) shows that  there is  no  fundamental  right  to  strike,  and  all  that  the ordinance provided was with respect to any illegal strike as provided  in the Ordinance.  There was no provision  in  the Ordinance  which  in any way  restricted  those  fundamental rights.   It  was  not in dispute that  Parliament  had  the competence  to make a law in the terms of the Ordinance  and therefore  the President had also the power  to  promulgate, such an Ordinance. 404 The  competence  of the legislature therefore being  not  in dispute  it cannot be held that the Ordinance  violated  the fundamental rights guaranteed under Art. 19(1)(a) and (b). All India Bank Employees Association v. National  Industrial Tribunal, [1962] 3 S.C.R. 269, referred to. The two cases relied on by the petitioner have no  relevance in  connection  with the charge in the  present  case.   The punishment  given to the petitioner cannot therefore be  set aside on the ground that the charge was in violation of  the fundamental rights guaranteed under Art. 19(1)(a) and (b). Kameshwar  Prasad v. State of Bihar, [1962] Supp.  3  S.C.R. 369  and O. K. Ghosh v. E. X. Joseph, [1963] Supp. 1  S.C.R. 789, held inapplicable. If on the undisputed facts the authorities came to the  con- clusion  that  the petitioner acted in  furtherance  of  the strike  ’Which  was to commence half an hour later  and  was thus  guilty of gross misconduct, it could not be said  that there  was  no evidence on which the  authorities  concerned could find the charge framed against the petititoner proved.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 208 of 1963Petition under  Art.  32  of the Constitution of India  for  the  en- forcement of fundamental rights. B.   D. Sharma, for the petitioner. S.V.Gupte,  Additional Solicitor-General, S.P. Varma and  R. H. Dhebar, for the respondent. March 23, 1964.  The Judgment of the Court was delivered by WANCHOO,  J.-This  is a petition under Art. 32 of  the  Con- stitution.   The petitioner was appointed as a  Telegraphist by the Post Master General Nagpur in 1949.  In July 1960. he was  serving  as an officiating  Teleprinter  Supervisor  at Jaipur.    The  employees  of  the  Posts   and   Telegraphs Department (hereinafter referred to as the Department)  went on  strike  from the midnight of July  11,  1960  throughout India  and  there  was  a similar  strike  at  Jaipur.   The petitioner was on duty on that day from 12 noon to 8 p.m. He says  that after his duty was over, he did not go  home  but went to the dormitory where he fell asleep as he was  tired. At  about  11-30 p.m. he woke up on hearing some  noise  and discovered  that it was very late and then he wanted  to  go home.  But as he came out, he was arrested by the police  on

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the  ground that he was also one of the  demonstrators,  who were  demonstrating outside in connection with  the  strike. The arrest was made under the Essential Services Maintenance Ordinance,  No. 1 of 1960, (hereinafter referred to  as  the Ordinance).   ’On July 13, the petitioner was  suspended  on the ground that a criminal charge was pending against him in a criminal court.                             405 However, the criminal charge was withdrawn on July 18, 1960. On  July  21,  1960,  a  charge-sheet  was  served  on   the petitioner in the following terms:-               "That   Shri   Radhey  Shyam  Sharma   I   C/S               Telegraphist,   CTO  Jaipur  committed   gross               misconduct in that on the midnight of the 11th               July 1960, he took part in a demonstration  in               furtherance  of  the  strike of the  P.  &  T.               Employees  in  violation of the  orders  dated               8-7-1960  issued  by the Government  of  India               under  the  "Essential  Services   Maintenance               Ordinance,  1960  (1  of  1960)"   prohibiting               strike  in any postal, telegraph or  telephone               Service." An  inquiry was made in the matter by the Post Master  Gene- ral,  Central Services Nagpur to whom it was transferred  as the  petitioner  had been appointed by  that  officer.   The enquiry  officer found the petitioner guilty of  the  charge framed against him and thereupon a notice was issued to  him to show cause why the penalty of reduction in the time scale by  three  stages for a period of two  years  affecting  the future  increments be not imposed upon him.  Thereafter  the Post   Master   General  after  taking  into   account   the explanation  submitted by the petitioner to the  show  cause notice  ordered  that the pay of the  petitioner  should  be reduced  in the time scale by three stages for a  period  of two years and on restoration the period of reduction was not to operate to postpone his future increments.  Thereupon the petitioner  filed an appeal to the Director  General,  Posts and Telegraphs.  The Director General directed further  evi- dence  to  be  taken on certain lines  before  deciding  the appeal.  However, no further evidence was given on behalf of the  Department  and  the matter  was  re-submitted  to  the Director  General  as it was Finally, the  Director  General considered  the whole matter on the merits and rejected  the appeal. The  present  petition  is  a sequel to  the  order  of  the Director  General,  and  the petitioner  contends  that  the punishment imposed upon him is violative of his  fundamental rights  under  Arts. 19(1)(a) and 19 (1) (b) and  should  be quashed.   Reliance is placed on his behalf on two cases  of this Court in Kameshwar Prasad v. State of Bihar,(1) and  O. K.  Ghosh v. E. X. Joseph(2), Further it is  contended  that ss.  3,  4 and 5 of the Ordinance are ultra vires,  as  they contravene sub-clauses (a) and (b) of Art. 19 (1).   Lastly, it is urged that in any case there was no evidence on  which it could be found that the charge against the petitioner had been proved. (1)  [1962] Supp. 3 S.C.R. 369. (2)  [1963].  Supp. 1 S.C.R. 789. 406 The  petition  has been opposed on behalf of  the  Union  of India  and  it  is urged that  the  Ordinance  is  perfectly constitutional and does not violate any fundamental  rights. It  is further urged that the two cases relied upon  by  the petitioner  are  of  no  assistance to  him,  as  they  were concerned  with  R.4-A  and Rule 4-B of  the  Central  Civil

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Services  (Conduct)  Rules, 1955.  Lastly it is  urged  that there was evidence on which the authorities concerned  could find the charge proved against the petitioner. The  first question that arises is whether ss.3, 4 and 5  of the  Ordinance are violative of any fundamental  rights  en- shrined  in  the Constitution.  The Ordinance  as  its  name shows  was  passed in order that essential services  may  be maintained.  Its necessity had arisen because of a threat of strike inter alia by the employees of the Department.  Among "Essential  Service" as defined in s. 2 (1) is included  the postal,  telegraph or telephone service.  Section 3  of  the Ordinance  provides  that  "if  the  Central  Government  is satisfied  that  in the public interest it is  necessary  or expedient  so  to do, it may, by general or  special  order, prohibit  strikes in any essential service specified in  the Order".   Further upon the issue of such an order no  person employed in any essential service to which the order relates shall  go  or remain on strike; and any strike  declared  or commenced,  whether before or after the issue of the  order, by  persons employed in any such service, shall be  illegal. Section  4 provides that any person who commences  a  strike which  is illegal under the Ordinance or goes or remains  on or  otherwise  takes  part  in, any  such  strike  shall  be punished  with  imprisonment.  Section 5 provides  that  any person who instigates, or incites other persons to take part in,  or otherwise acts in furtherance of, a strike which  is illegal  under  the  Ordinance  shall  be  punishable   with imprisonment. The  constitutionality of these sections is attacked on  the ground  that they violate the fundamental rights  guaranteed by  cls. (a) and (b) of Art. 19 (1).  Under cl. (1) (a)  all citizens have the fundamental right to freedom of speech and expression  and under cl. (1) (b) to assemble peaceably  and without arms.  Reasonable restrictions on these  fundamental rights  can be placed under the conditions provided in  cls. (2) and (3) of Art. 19.  We are of opinion that there is  no force  in  the  contentiton that  these  provisions  of  the Ordinance  violate the fundamental rights enshrined in  sub- cls.  (a)  and (b) of Art. 19(1).  A perusal of  Art.  19(1) shows that there is no fundamental right to strike, and  all that  the Ordinance provides is with respect to any  illegal strike  as provided in the Ordinance.  This aspect has  been elaborately discussed in the Bank Employees’ case(1) and  it has been held that there is no fundamental right to strike (1)  [1962] 3 S.C.R. 269.                             407 (see  All  India  Bank Employees’  Association  V.  National Industrial  Tribunal(1)).   There  is no  provision  in  the Ordinance  which in any way restricts freedom of speech  and expression,  nor  is  there  any  provision  therein   which restricts  any  one from assembling  peaceably  and  without arms.  The Ordinance thus has nothing to do with restricting the fundamental rights enshrined in sub-cls. (a) and (b)  of Art.  19(1),  and there is therefore no  necessity  of  even considering  whether the provisions of the Ordinance can  be justified  under  cls. (2) and (3) of Art. 19.   It  is  not disputed that Parliament had the competence to make a law in the  terms of the Ordinance and therefore the President  had also  the  power  to  promulgate  such  an  Ordinance.   The competence of the legislature therefore being not in dispute we fail to see how the Ordinance can violate the fundamental rights  guaranteed under sub-cls (a) and (b) of  Art.  19(1) for  there is no provision in it which in any way  restricts those fundamental rights. Learned counsel for the petitioner in this connection relies

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on  two cases of this Court to which reference  has  already been made.  Kameshwar Prasad’s case (2) related to R. 4-A of the  Bihar Government Servants’ Conduct Rules,  1956,  which 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. This  Court  held  in that case that  R-4-A  insofar  as  it prohibited any form of demonstration, be it however innocent or   however  incapable  of  causing  a  breach  of   public tranquility  was violative of Arts. 19(1) (a) and 19(1)  (b) of  the Constitution.  This Court also held that insofar  as that  rule prohibited a strike it was good, since there  was no fundamental right to resort to strike.  In O. K.  Ghosh’s case(3)  this Court was concerned with r. 4-A and r. 4-B  of the  Central  Civil  Services  (Conduct)  Rules,  1955,  and following  the decision in Kameshwar Prasad’s  case(4),  4-A was   struck  down  in  part  so  far  as  it   related   to demonstrations and r. 4-B was also held to be invalid.  That case  did not deal with the Ordinance at all and the  charge in that case did not seem to have been in the same terms  as the charge in the present case.  No argument appears to have been  urged  either in the High Court or before  this  Court about the validity of the Ordinance or about the validity of the  impugned  order  in relation to the  Ordinance  or  the illegal character of the strike.  In the circumstances  that case  is also of no assistance to the petitioner  and  there was nothing decided there which would in any way affect  the validity  of  the  provisions  of  the  Ordinance.   We  are therefore of opinion that the Ordinance is valid. (1) [1962] 3 S.C.R. 269, 292.(2) (2) [1962] Supp. 3 S.C.R. 369. (3)  [1963] Supp. 1 S.C.R. 789. 408 We  have  already  set out the  charge  framed  against  the petitioner.  it  will  be  seen that  the  charge  is  based entirely on the Ordinance and has no connection with rr. 4-A and  4-B which were considered in the O.K. Ghosh’s  case(1). The  petitioner  is  charged with gross  misconduct  on  the ground  that on the midnight of July 11, 1960, he took  part in  a  demonstration  in furtherance of the  strike  of  the employees  of  the Department in violation of the  order  of July 8, 1960.  It is not disputed that on July 8, 1960,  the Central  Government  had issued an order under s. 3  of  the Ordinance  prohibiting  any strike in the  Department.   The strike  therefore that started on the midnight of  July  11, 1960  was  an illegal strike in view of s. 3 (4)(b)  of  the Ordinance.   Section 5 of the Ordinance provides inter  alia that any person who acts in furtherance of a strike which is illegal  is punishable thereunder.  The charge  against  the petitioner  was  that  he had acted in  furtherance  of  the strike  which  was to commence on the midnight of  July  11, 1960  and was therefore guilty of gross misconduct.   It  is this  charge of gross misconduct which has been found to  be proved  against  the  petitioner and which has  led  to  the punishment   inflicted  on  him.  This  charge  as   already indicated  has  nothing  to do with r. 4-A and  r.  4-B  and therefore the two cases on which the petitioner relies  have no relevance in connection with this charge.  The punishment given to the petitioner cannot therefore be set aside on the ground  that the charge was in violation of the  fundamental rights guaranteed under sub-cls. (a) and (b) of Art.  19(1), which  deal  with freedom of speech and expression  and  the right  to assemble peaceably and without arms..  The  charge does  not deal with these two matters at all.  On the  other hand  it  deals with acting in furtherance  of  the  illegal

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strike  which started on the midnight of July 11, 1960,  and the petitioner was charged with gross misconduct inasmuch as he  acted in furtherance of the illegal strike on  July  11, 1960  after  the strike had been prohibited by  the  Central Government  by  order  dated  July  8,  1962.   Whether  the "acting"  in  furtherance  of the strike took  the  form  of speeches  or  demonstrations would make no  difference.   In either case it can be said that there is a violation of Art. 19 (1) (a). The  only question that remains for consideration  therefore is  whether  the petitioner’s contention that there  was  no evidence  at  all on which the authorities  concerned  could find the petitioner guilty of the charge is correct.  So far as  that  is concerned, the authorities  had  the  following undisputed facts before them: -               (1)   The petitioner was the Secretary of  the               local   union   of  the   employees   of   the               Department;               (1) [1963] Supp. 1 S.C.R. 789.               409               (2)   On   that  day  the  petitioner’s   duty               finished at 8 p.m. and he should have normally               gone  home; but he stayed on in the  dormitory               till  11-30 p.m. which was just half  an  hour               before the strike was to commence;               (3)   The demonstration was held in connection               with  the  strike  by  the  employees  of  the               Department  at  11-30 p.m. just half  an  hour               before the strike was to commence;               (4)   The   petitioner  took  part   in   that               demonstration   and  was   actually   arrested               amongst the demonstrators. If  on  these undisputed facts the authorities came  to  the conclusion  that the petitioner acted in furtherance of  the strike which was to commence half an hour later and was thus guilty of gross misconduct it cannot in our opinion be  said that  there  was  no  evidence  on  which  the   authorities concerned   could  find  the  charge  framed   against   the petitioner proved. -The contention therefore that there  was no  evidence on which the authorities concerned  could  find the charge proved must-fail. We therefore dismiss the petition.  In the circumstances ,of this case we pass no order as to costs. Petition dismissed. 410