Case ID: 1775

Judgment:
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. 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 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 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 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on the ground that a criminal charge was pending against him in a criminal court. 405 However	 the criminal charge was withdrawn on July 18	 1960.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 articles 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 vs State of Bihar	(1) and O. K. Ghosh vs E. X. Joseph(2)	 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 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 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 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 19(1). A perusal of article 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) ; 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 article 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 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 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 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 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) ; 	 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 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 (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 article 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 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 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.

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 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 appeal. In this Court it was urged that the punishment imposed upon the petitioner was violative of his fundamental rights under articles 19(1)(a) 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 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 sections 3	 4 and 5 did not violate the fundamental rights enshrined in article 19(1)(a) and (b). A perusal of article 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 article 19(1)(a) 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 19(1)(a) and (b). Kameshwar Prasad vs State of Bihar	 [1962] Supp. 3 S.C.R. 369 and O. K. Ghosh vs 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.