Railway Board, Representing the Union of
India, New Delhi A Vs. Niranjan Singh [1969] INSC 23 (4 February 1969)
04/02/1969 HEGDE, K.S.
HEGDE, K.S.
SIKRI, S.M.
BACHAWAT, R.S.
CITATION: 1969 AIR 966 1969 SCR (3) 548 1969
SCC (1) 502
CITATOR INFO :
D 1972 SC1792 (14) RF 1972 SC1975 (9) R 1973
SC 87 (32) F 1975 SC2151 (22) F 1989 SC1185 (25) RF 1989 SC1854 (20)
ACT:
Constitution of India, Art. 226-Whether High
Court in exercise of certiorari jurisdiction can interfere with finding of
disciplinary authority-Art. 19(1) (a), (b) (c) and (3)-If violated by General
Manager of Railway prohibiting meetings of employees on Railway premises.
Removal-Order of-Based on a number of grounds
of which one not sustainable-If order liable to be struck down.
HEADNOTE:
The respondent was a permanent employee of
the Northern Railway and was served with a charge sheet in November, 1956,
which levelled two charges against him. He was accused of having been
instrumental in compelling the shut- down of an air compressor and, in
contravention of a direction given by the General Manager, Northern Railway, on
June 19, 1956, of having addressed a number of meetings within the Railway
premises. An enquiry committee after investigating the charges came to the'
conclusion that the respondent was not proved beyond all reasonable doubt but
that the 'respondent was guilty of the second charge. The General Manager, who
was the disciplinary authority, after examining the report of the committee,
accepted its findings on the second charge but differing from its conclusion on
the first charge tentatively came to the conclusion that the respondent was
guilty of that charge as well. After the issue of a show-cause notice to the
respondent and the 'rejection of his explanation, the General Manager directed,
by an order of August 20, 1957, that the respondent be removed from service.
The respondent challenged the order of his
removal by a writ petition. The petition was allowed and an appeal to a
Division Bench was dismissed. The questions for decision in the appeal to this
Court were (i) whether the High Court was within its jurisdiction in the
exercise of its powers under Art. 226 of the Constitution to set aside the
conclusion reached by the General Manager on the first charge; (ii) whether the
appellate court was right in its view that if an order of removal is based on
number of grounds and one or more of those grounds are found to be
unsustainable, the order is liable to be struck down; and (iii) whether the
direction issued by the General Manager on June 19, 1956 was violative of Art.
19(1) (a) to (c) and (3).
It was contended on behalf of the appellant
that the rights guaranteed under Art. 19(1) (a), (b) & (c) are inviolable
and they cannot be interfered with except in accordance with sub-articles 2, 3
& 4 of Art. 19; that the Railway workers had a right to assembly in any
place they chose and could express their views so long they did not disturb the
work going on in the premises.
HELD : Allowing the appeal and dismissing the
writ petition : (i) The High Court exceeded its powers in interfering with the
findings of the General Manager on the first charge. It was open to the General
Manager to accept the evidence which the, Enquiry Committee had rejected on the
first charge and he was not bound by the conclusions reached by the committee.
On the facts in the present case it could not be said that the finding of the
disciplinary authority was not supported by any evidence nor could it be said
that no reasonable person could have reached such a finding. Hence the
conclusion reached by the disciplinary authority must prevail and the High
Court in the exercise of its certiorari jurisdiction could not have interfered
with its conclusion.
[552 A-C] Union of India v. H. C. Goel,
[1964] 4 S.C.R. 718; Syed Yakoob v. K. S. Radhakrishnan & Ors., [1964] 5
S.C.R. 64;
relied on.
(ii)There was no force in the contention that
the punishment imposed could not be sustained if it was held that one of the
two charges on the basis of which it was imposed, was unsustainable. If the
order in an enquiry under Art. 311 can be supported on any finding as
substantial misdemeanor for which the punishment imposed can lawfully be impose
it is not for the Court to consider whether that ground alone would have weighed
with the authority in imposing the punishment in question [552 G] State of
Orissa v. Bidyabhan Mohapatra, [1962] Suppl. 1 S.C.R. 648; followed.
(iii)The General Manager's direction
prohibiting the holding of meetings within the Railway premises was not violative
of Art. 19(1).
The Northern Railway was the owner of the
premises in question and was entitled to enjoy its property in the same manner
as any private individual subject to only such restriction as the law or the
usage, may place on them.
There is no 'fundamental right for anyone to
hold meetings in Government premises. Freedom of speech, freedom, to assemble
peacefully and the freedom to form Associations or Unions does not mean that
these rights can be exercised by the citizens in whatever place they please.
The exercise of those freedoms will come to an end as soon as the right of someone
else to hold his property intervenes. Such a limitation is inherent in the
exercise of those rights. The validity of that limitation is not to be judged
by the tests prescribed by Sub-Arts. (2) and (3) of Art. 19. [554 D] Marsh v.
Alabama, 90 Law Edn. P. 265, Tucker v. State of Texas. 90 Law Edn. p. 274);
distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1206 of 1966.
Appeal from the judgment and order dated,
January 14, 1963 of the Punjab High Court in Letters Patent Appeal No. 36-D of
1962.
G. R. Rajagopaul, A. S. Nanbiar and s. P.
Nayar, for the appellants.
R. K. Garg and S. C. Agarwal, for the
respondent.
The Judgment of the Court was delivered by
Hegde, J This appeal was brought after obtaining from the High Court a
certificate under Art. 132 and 133(1)(c) of the Constitution before formulating
the points arising for decision, it would be convenient to set out the
necessary facts.
550 The respondent was holding a permanent
post in the Northern Railway. He was a Trade Union worker. On November 7, 1956
a charge-sheet was served on him leveling two charges against him. Under the
first charge, he was accused of having been instrumental in compelling the air
compressor being shut down at about 8.15 a.m. on May 31, 1956. Under the second
charge he was accused of having contravened the direction given by the General
Manager, Northern Railway as per his letter No. 961/E/O(Evi) dated June 19,
1956 by addressing meetings with in the railway premises on June 23, 1956, June
25, 1956, July 24, 1956, July 25, 1956 and July 27, 1956. On these charges he
was called upon to show-cause why he should not be removed from service under
Rule 1708 of the Indian Railway Establishment Code Vol. 1 or punished with any
lesser penalties specified in Rule 1702. After receiving his explanation an
enquiry committee consisting of three officers was appointed to enquire into
the charges.
The said committee came to the conclusion
that the first charge was not proved beyond all reasonable doubt but he was
guilty of the second charge. The Disciplinary Authority i.e. the General
Manager remitted the case back to the enquiry committee for submitting a fresh
report after examining the witnesses mentioned in his order. Even after
examining those witnesses the enquiry committee adhered to its earlier
conclusions. After examining the reports of the enquiry committee, the General
Manager as per his order of May 25, 1957 accepted its finding on the second
charge but differing from its conclusion on the first charge- tentatively came
to the conclusion that the respondent was guilty of that charge as well. As a
result thereof he ordered the issue of 'a notice to the respondent to show- cause
why he should not be removed from service. The respondent submitted his explanation
to the show-cause notice. The General Manager did not accept his explanation
and by his order of August 20, 1957 be ,directed that the respondent be removed
from service. The respondent challenged that decision before the High Court of
Punjab by means of a writ petition under Art. 226 of the Constitution.
The single judge of the High Court who heard
the petition opined that the General Manager was not right in holding on the
material on record that the first charge is established and on the second
charge he held that the General Manager's direction as per his letter of June
19, 1956 is void as being violative of Art. 19(1) of the Constitution. On
appeal the appellate court upheld the conclusion of the learned single judge on
the first charge but it was unable to accept his finding that the order of the
General Manager of June 19, 1956 was violative of Art. 19(1) of the
Constitution. AR the same it affirmed the decision of the learned single judge
with these observations "It is by now a generally recognised principle
that where an order such as an order of detention or removal 551 from service
is based on a number of grounds, and one or more of these grounds disappear it
becomes difficult to uphold the order when it is not clear to what extent it
was based on the ground found to be bad." The findings of the learned
single judge as well as the judges of the appellate court were challenged
before us by the appellant. It was urged on its behalf that the finding of the
General Manager on the first charge being a finding of fact, the same not
having been held either not supported by any evidence. or as perverse, it was
not open to the High Court to review the evidence afresh and come to a
conclusion of its own. It was further urged on its behalf that the opinion of
the Appellate Court that if one of the several charges on the basis of which a
punishment is imposed is held to be unsustainable, the punishment imposed
should be set aside as it is not known whether the authority in question would
have imposed the impugned punishment without that charge having been
established, does not represent the correct legal position as expounded by this
Court. The learned Counsel for the respondent not only supported the
conclusions of the appellate court, he also strongly commended for our
acceptance the finding- of the learned single judge that General Manager's
direction contained in his letter- of June 19, 1956 was violative of Art. 19(1)
(a) to (c).
The questions that arise for decision in this
appeal are (1) whether the High Court was within its jurisdiction in the
exercise of its powers under Art. 226 of the Constitution to set aside the
conclusion reached by the General Manager on the first charge, (2) whether the
direction issued by the General Manager on June 19, 1956 is violative of Art.
19(1) a to (c) and (3) whether the appellate court was right in its view that
if an order of removal is based on number of grounds and one or more of those
grounds are found to be unsustainable, the order is liable to be struck down.
Now coming to the first charge, we may first
set out the un- disputed facts. On May 31, 1956, the Union of which the
respondent was the Vice-President declared a token strike.
The strike in question was declared by the
respondent and he took a leading part in it. During the time of the strike the
compressor was not worked. The enquiry committee came to the conclusion and
that conclusion was neither challenged before the High Court nor before this
Court that the compressor driver must have started the compressor in the East
Compressor House at 8-00 hrs. and there must have been certain circumstances
which made the driver to shut it off at 8-15 hrs. The only question for decision
is whether the respondent was responsible for shutting it off. Two wit- nesses
namely Subrati, the compressor Driver and Rameshwar, his Assistant emphatically
stated- before the enquiry committee 552 that it was the respondent who led a
group of strikers and compelled them to close down the compressor. The enquiry
committee felt that their evidence cannot be accepted at its face value as they
were not able to name any other person in the group. But the General Manager
did not agree with the enquiry on that point. He fully accepted: their
evidence.
It was open to the General Manager to do so.
He was not bound by the conclusions reached by the enquiry committee, see Union
of India v. H. C. Goel(1). This is not a case where it can be said that the
finding of the Disciplinary Authority is not supported by any evidence nor can
it be said that no reasonable person could have reached such a finding. Hence
the conclusion reached by the Disciplinary Authority should prevail and the
High Court in the exercise of its Certiorari jurisdiction could not have
interfered with its conclusion, see Syed Yakoob v. K. S. Radhakrishnan and
Ors.(2).
It was next contended that in arriving at his
conclusion on the first charge the General Manager had relied on the hearsay
evidence given by De Mellow and hence his conclusion is vitiated. The evidence
of the witnesses examined during the enquiry is not before us. Hence it is not
possible to accept the contention that De Mellow's evidence was hearsay.
In this view it is not necessary to go into
the question whether hearsay evidence can be relied ow at all in an enquiry
under Art. 311 and if so within what limits. Some of the inferences drawn by
the General Manager were objected to by the learned Counsel for the respondent.
They appear to be inferences of fact, evidently drawn from the material before
him and as such cannot be properly objected to. It Was open to him to draw
those inferences.
For the reasons mentioned above, we hold that
the$ High Court exceeded its powers in interfering with the finding of the
General Manager on the first charge.
Before we take up for consideration point No.
2 formulated above, it would be convenient to deal with point No. 3. It was not
disputed before us that the first charge leveled against the respondent is a
serious charge and it would have been appropriate for the General Manager to
remove the respondent from service on the basis of his finding on that charge.
But we were told that we cannot assume that the General Manager would have
inflicted that punishment solely on the basis of that charge and consequently
we cannot sustain the punishment imposed if we hold that one of the two charges
on the basis of which it was imposed is unsustainable. This contention cannot
be accepted in view of the decision of this Court in State of Orissa v. Bidyabhan
Mohapatra(3) wherein it was held that if the order in an enquiry under Art. 311
can be supported on any finding as substantial misdemeanour - (2)[1964] 5
S.C.R. 64.
(1) [1964] 4 S.C.R. 718.
(3) [1962] Supp. 1 S.C.R. 648.
553 for which the punishment imposed can
lawfully be unposed it is not for the Court to consider whether that ground
alone would have' weighed with the authority in imposing the punishment in
question.
Now we come to the second charge. In order to
examine the contentions of Mr. Garg, the learned Counsel for the respondent
relating to that charge, it is necessary to set out the circular issued by the General
Manager on June 19, 1956. That was a circular issued to all the heads of the
departments. It reads :
"It has been brought to notice that in a
number of cases railway employees have held meetings inside railway premises
such as inside workshops, inside stores depots and within office compounds. It
may be pointed out that this practice is extremely objectionable and has to be
stopped forthwith.
AR staff may be warned that if any one of
them is found organising or attending a meeting inside railway premises or at
places of work, he will render himself liable to severe disciplinary action as such
action on his part will amount to misconduct arising out of violation of
administrative instructions.
Meetings of workers can be held on open
grounds away' from places of work with the permission of the railway
authorities concerned if such open grounds fall within railway boundary.
You are to note these instructions very
carefully and to ensure their strict compliance in future.
Please acknowledge receipt." The
direction with which we are concerned in this appeal is that which prohibits
the holding of meetings within the railway premises including open grounds
forming part of those premises. That direction does not deprive. the workers
any of the freedoms guaranteed to them under-Art.
19(1). It merely prohibits them from
exercising any of them within the railway premises. What is prohibited is the
holding of meetings for any purpose within thethe railway premises. The
question is whether such a direction is violative-of Art. 19(1) ? In the
instant casewe are concerned with the meetings held outside the main time
office and it was not denied that that place formed part of the railway
premises.
It was strenuously urged on behalf of the
respondent that the rights guaranteed under Art. 19(1) (a), (b) and (c) are
inviolable and they cannot be interfered with excepting in accordance with
sub-Arts. 2, 3 and 4 of the said Art.
According to Mr. Garg the railway workers
have a right to assemble in any place they choose and give expression to their
views so long as they do not disturb the work going on in the premises and that
right is guaranteed to them under our Constitution.
554 It was not disputed that the Northern
Railway is the owner of the premises in question. The fact that the Indian
Railways are State Undertakings does not affect their right to enjoy their
properties in the same manner as any private individual may do subject only to
such restrictions as the law or the usage may place on the. Hence unless it is
shown that either under law or because of some usage the railway servants have
a right to hold their meetings in railway premises, we see no basis for
objecting to the direction given by the General Manager. There is no
fundamental right for anyone to hold meetings in government premises. If it is
otherwise there is bound to be chaos in our offices. The fact that those who
work in a public office can go there does not confer on them the right of
holding a meeting at that office even if it be the, most convenient place to do
so.
It is true that the freedoms guaranteed under
our Constitution are very valuable freedoms and this Court would resist
abridging the ambit of those freedoms except to the extent permitted by the
Constitution. The fact that the citizens of this country have freedom of
speech, freedom to assemble peaceably and freedom to form- associations or
unions does not mean that they can exercise those freedoms in whatever place
they please. The exercise of those freedoms will come to an end as soon as the
'right of some- one else to hold his property intervenes. Such a limitation is
inherent in the exercise of those 'rights. The validity of that limitation is
not to be judged by the tests prescribed by Sub-Arts. (2) and (3) of Art. 19.
In other words the contents of the freedoms guaranteed under cls. (a), (b) and
(c), the only freedoms with which we are concerned in this appeal,.do not
include the right to exercise them in the properties belonging to others. If
Mr.
Garg is right in his contentions then a
citizen of this country in the exercise of his right under cls. (d) and (e) of
Art. 19(1) could move about freely in a public-office or even reside there
unless there exists some law imposing reasonable restrictions on the exercise
of those rights.
In support of his contention Mr. Garg
strongly relied on the decisions of the Supreme Court of United States of
America in Marsh v. Alabama(1) and Tucker v. State of Texas(2) Tucker's case
was decided on the basis of the rule laid down in Marsh's case. Hence it is not
necessary to consider it separately. In Marsh's case the Supreme Court laid down
that the constitutional ,guarantees of freedoms of press and of religion
precludes the enforcement against one who undertook to distribute religious
literature on a street of a company-owned town, contrary to the wishes of the
town's management, of a state statute making it a crime to enter or remain on
the premises of another after having been (1) 90, Law ed. p. 265.
(2) 90, Law ecd. p. 274.
555 warned not to, do so. In order to
appreciate this decision it is necessary to bear in mind the facts of the case.
The appellant there in was a Jehovahs Witness
who came into the sidewalk of a privatetown situate near the post office and
undertook to distribute religious literature. In the store the corporation had
posted a notice which read as follows:- "This Is Private Property and
Without Written Permission, No Street, or House Vendor, Agent or Solicitation
of Any Kind Will Be Permitted." The appellant was warned that she should
not distribute the literature without a permit and told that no permit would be
issued to her. She protested that the company rule could not be
constitutionally applied so as to prohibit her from distributing religious
writings. )When she was asked to leave the sidewalk and Chicka-saw she
declined. The deputy sheriff arrested her and she was charged in the state
court for violating the law. The town in question is described in the judgment
thus:
"The town, a suburb of Mobile, Alabama,.
known as Chicka-saw, is owned by the Gulf Ship building Corporation. Except for
that it has all the characteristics of any other American town. The property
consists of residential buildings, streets, a system of " sewers, a sewage
disposal plant and a "business block on which business places are
situated.. A deputy of the Mobile County Sheriff, paid by the company, serves
as the town's policeman.
Merchants and service establishments have
rented the stores and business places on the business block and the United
States uses one of the places as a post office from which six carriers deliver
mail to the people of Chickasaw and the adjacent area. The town and the
surrounding neighborhood, which cannot be distinguished from the gulf property
by anyone not familiar with the property lines, are thickly settled, and
according to all indications the residents use the business block as their
regular shopping center. To do so, they now, as they have for many years, make
use of a company-owned paved street and sidewalk located alongside the store
fronts in order to enter and leave the stores and the post office. Intersecting
company-owned roads at each end of the business block lead into a four-lane
public highway which runs parallel to the business block at a distance of
thirty feet. There is nothing to stop highway traffic from coming into the
business block and upon arrival a traveller may make free use of the facilities
available there. In short the town and its shopping district are accessible to
and freely used by the public in general and there is nothing to distinguish
556 them from any other town and shopping centre except the fact that the title
to the property belongs to a private corporation." From the above
description it is clear that the roads and sidewalks in that town had been
dedicated for public use. It is in that context Justice Black observed:
"The more an owner, for his advantage,
opens up his property for use by the public in general, the more do his
rights,, become circumscribed by the statutory and constitutional rights of
those who use it." The learned Judge further observed :
"We do not think it-makes, any
significant constitutional difference as to the relationship between the rights
of the owner and those of the public that here the State, instead of permitting
the corporation to operate a highway, permitted it to use its property as a ,
town operate a 'business block' in, the town and a street and sidewalk on that
business block. . . .
As we have heretofore stated, the town of Chickasaw does not function differently from any other town. The "business
block" serves as the community shopping centre and is freely accessible
and open to the people in the area and those passing through. The managers
appointed by the corporation cannot curtail the liberty of press and religion
of these people consistently with the purposes of the constitutional guarantees
and a state statute, as the one here involved, which enforces such action by
criminally punishing those who attempt to distribute religious literature
clearly violates the First and Fourteenth Amendments to the Constitution."
In our opinion the rule laid down in Marsh's case does not apply to the facts
of this case. 'Me premises with which we are concerned in this appeal unlike
the roads and sidewalks of Chickasaw town were not open for use of the general
public. They were intended for certain specified public purposes. They could
not be used for any other purpose except with the permission of the concerned
authority.
Neither the language of Art. 19(1) nor the
purpose behind it lend support to the contentions of Mr. Garg. On the other
hand their acceptance might lead to the confusion in public offices. Hence we
are unable to accept them.
In the result the appeal is allowed and the
writ petition missed but in the circumstances of the case we direct the parties
to bear their own costs throughout.
P.K.P.S. Appeal allowed.
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