O. K. Ghosh & ANR Vs. E. X. Joseph
[1962] INSC 298 (30 October 1962)
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 staffWithdrawal of recognition by Government-Proceedings against
Secretary for refusal to dissociate-Participation in preparation for
strike-Constitutional Validity of RulesCentral 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refusing to dissociate from the Association after the Government had withdrawn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recognise or in respect of which recognition had been refused or withdrawn by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 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 restriction 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.
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 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 respondent 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 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 4A, 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 4B. 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
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 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 conditions 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 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.
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