No 208 of 1963Petition under article 32 of the Constitution of India for the en forcement of fundamental rights
B D Sharma for the petitioner
SVGupte Additional Solicitor General SP 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 article 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 pm
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 pm 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 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405 However the criminal charge was withdrawn on July 18 1960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 CS 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 articles 191a and 19 1 b and should be quashed
Reliance is placed on his behalf on two cases of this Court in Kameshwar Prasad vs State of Bihar1 and O K Ghosh vs E X Joseph2 Further it is contended that sections 3 4 and 5 of the Ordinance are ultra vires as they contravene sub clauses a and b of article 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 SCR 369
2 1963
Supp 1 SCR 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 R4 A and Rule 4 B of the Central Civil 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 ss3 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 section 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 article 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 article 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 article 191
A perusal of article 191 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  case1 and it has been held that there is no fundamental right to strike 1  407 see All India Bank Employees  Association V National Industrial Tribunal1
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 article 191 and there is therefore no necessity of even considering whether the provisions of the Ordinance can be justified under cls
2 and 3 of article 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 article 191 for there is no provision in it which in any way restricts those fundamental rights
Learned counsel for the petitioner in this connection relies 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 articles 191 a and 191 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 case3 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 case4 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   2922 2 1962 Supp 3 SCR 369
3 1963 Supp 1 SCR 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 OK Ghosh s case1
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 section 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 section 3 4b 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 article 191 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 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 article 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 SCR 789
409 2 On that day the petitioner s duty finished at 8 pm and he should have normally gone home but he stayed on in the dormitory till 11 30 pm 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 pm 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


Summary:
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 pm 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 pm 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 CS 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 appeal
In this Court it was urged that the punishment imposed upon the petitioner was violative of his fundamental rights under articles 191a and b reliance being placed on two cases of this court in Kameshwar Prasad vs State of Bihar and O K Ghosh vs E X Joseph that sections 3 4 and 5 of the Ordinance were ultra vires as they contravened article 191a 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 sections 3 4 and 5 did not violate the fundamental rights enshrined in article 191a and b
A perusal of article 191 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 article 191a and b
All India Bank Employees Association vs National Industrial Tribunal   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 article 191a and b
Kameshwar Prasad vs State of Bihar 1962 Supp 3 SCR 369 and O K Ghosh vs E X Joseph 1963 Supp 1 SCR 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