1. Government employee penalized for gross misconduct after participating in a demonstration in furtherance of an illegal strike prohibited under the Essential Services Maintenance Ordinance, 1960. (Para 1 )
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1964 Supreme(SC) 96
SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, J.C. SHAH, N. RAJAGOPALA AYYANGAR AND S.M. SIKRI, JJ.
Radhey Shyam Sharma, Petitioner
Versus
Post Master General, Central Circle, Nagpur and others, Respondents.
Writ Petn. No. 208 of 1963.
Advocates Appeared
Mr. B. D. Sharma, Advocate, for Petitioner; Mr. S. V. Gupte, Addl. Solicitor General of India, (M/s. S. P. Varma and R. H. Dhebar, Advocates, with him), for Respondents.
Advocates:
B.D.SHARMA, R.H.Dhebar, S.P.Varma, S.V.Gupta
B.D.SHARMA, R.H.Dhebar, S.P.Varma, S.V.Gupta
Important Points
There is no fundamental right to strike under the Constitution of India. Therefore, laws prohibiting illegal strikes in essential services do not violate the fundamental rights to freedom of speech and expression or the right to assemble peaceably and without arms.
Subject
Constitutional Law - Fundamental Rights
Act Referred
Headnote
(A) Constitution of India - Articles 19(1)(a) and 19(1)(b) - Essential Services Maintenance Ordinance, 1960 - Sections 3, 4 and 5 - Right to strike - Constitutionality of provisions prohibiting strikes in essential services - There is no fundamental right to strike; provisions of an Ordinance prohibiting illegal strikes in essential services do not restrict the freedom of speech and expression or the right to assemble peaceably and without arms. (Para 5)
(B) Service Law - Gross misconduct - Acting in furtherance of an illegal strike - Punishment for participating in a demonstration to further a strike prohibited by government order - Where the charge is acting in furtherance of an illegal strike, it is distinct from a general prohibition on demonstrations; such action constitutes gross misconduct. (Para 7)
(C) Evidence - Sufficiency of evidence for disciplinary action - Where a union official remains on premises until the commencement of a prohibited strike and is arrested among demonstrators, such facts provide a sufficient basis for a finding of misconduct. (Para 8)
Facts of the case:
An employee of a government department was arrested for participating in a demonstration in furtherance of a strike that had been prohibited by a government order issued under an Ordinance for maintaining essential services. The employee was subsequently charged with gross misconduct and penalized with a reduction in time scale. The employee challenged the constitutionality of the Ordinance and the validity of the punishment on the grounds of violation of fundamental rights under Articles 19(1)(a) and 19(1)(b) of the Constitution.
Findings of Court:
The provisions of the Ordinance prohibiting illegal strikes in essential services are constitutional as there is no fundamental right to strike. The charge of acting in furtherance of an illegal strike does not violate the right to freedom of speech or peaceful assembly. Based on the evidence that the employee was a union secretary and was arrested during a demonstration just before the strike began, the finding of gross misconduct was justified.
Issues: Whether Sections 3, 4, and 5 of the Essential Services Maintenance Ordinance, 1960 violate Articles 19(1)(a) and 19(1)(b) of the Constitution, and whether there was sufficient evidence to prove the charge of gross misconduct.
Ratio Decidendi: The court held that the right to strike is not a fundamental right under the Constitution. Consequently, legislation prohibiting illegal strikes in essential services does not infringe upon the freedom of speech and expression or the right to assemble peaceably. Furthermore, acting in furtherance of such an illegal strike constitutes gross misconduct, and circumstantial evidence of participation in a demonstration associated with the strike is sufficient to sustain the charge.
Result: Petition dismissed.
(B) Service Law - Gross misconduct - Acting in furtherance of an illegal strike - Punishment for participating in a demonstration to further a strike prohibited by government order - Where the charge is acting in furtherance of an illegal strike, it is distinct from a general prohibition on demonstrations; such action constitutes gross misconduct. (Para 7)
(C) Evidence - Sufficiency of evidence for disciplinary action - Where a union official remains on premises until the commencement of a prohibited strike and is arrested among demonstrators, such facts provide a sufficient basis for a finding of misconduct. (Para 8)
Facts of the case:
An employee of a government department was arrested for participating in a demonstration in furtherance of a strike that had been prohibited by a government order issued under an Ordinance for maintaining essential services. The employee was subsequently charged with gross misconduct and penalized with a reduction in time scale. The employee challenged the constitutionality of the Ordinance and the validity of the punishment on the grounds of violation of fundamental rights under Articles 19(1)(a) and 19(1)(b) of the Constitution.
Findings of Court:
The provisions of the Ordinance prohibiting illegal strikes in essential services are constitutional as there is no fundamental right to strike. The charge of acting in furtherance of an illegal strike does not violate the right to freedom of speech or peaceful assembly. Based on the evidence that the employee was a union secretary and was arrested during a demonstration just before the strike began, the finding of gross misconduct was justified.
Issues: Whether Sections 3, 4, and 5 of the Essential Services Maintenance Ordinance, 1960 violate Articles 19(1)(a) and 19(1)(b) of the Constitution, and whether there was sufficient evidence to prove the charge of gross misconduct.
Ratio Decidendi: The court held that the right to strike is not a fundamental right under the Constitution. Consequently, legislation prohibiting illegal strikes in essential services does not infringe upon the freedom of speech and expression or the right to assemble peaceably. Furthermore, acting in furtherance of such an illegal strike constitutes gross misconduct, and circumstantial evidence of participation in a demonstration associated with the strike is sufficient to sustain the charge.
Result: Petition dismissed.
Legal Category Hierarchy
- constitutional law
- administrative law
- statutory law
Table of Contents
2. Petitioner challenges the constitutionality of the Ordinance as violating freedom of speech and assembly; Respondent contends the Ordinance is valid and evidence supports the misconduct charge. (Para 2 , 3 )
3. The court found no fundamental right to strike and determined that prohibiting illegal strikes does not restrict freedom of speech or peaceful assembly under Article 19. (Para 4 , 5 , 6 , 7 , 8 )
4. There is no fundamental right to strike; therefore, legislation prohibiting illegal strikes in essential services does not violate the fundamental rights guaranteed under Article 19(1). (Para 5 )
5. Petition dismissed. (Para 9 )
6. Is there a fundamental right to strike under the Constitution of India?
No, there is no fundamental right to strike. Legislation that prohibits illegal strikes in essential services does not violate the fundamental rights to freedom of speech and expression or peaceful assembly. (Para 5 )
7. Does a prohibition on illegal strikes violate Article 19(1)(a) or 19(1)(b)?
No. The court held that an ordinance prohibiting illegal strikes in essential services does not restrict freedom of speech and expression or the right to assemble peaceably and without arms. (Para 5 )
8. Does acting in furtherance of an illegal strike constitute misconduct regardless of the form (speech or demonstration)?
Yes. The court observed that whether acting in furtherance of an illegal strike takes the form of speeches or demonstrations, it constitutes gross misconduct and does not violate Article 19(1)(a). (Para 7 )
Judgment
WANCHOO, J. : This is a petition under Art. 32 of the Constitution. The petitioner was appointed as a Telegraphist by 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. However, the criminal charge was withdrawn on July 18, 1963. On July 11, 1960 a charge-sheet was served on the petitioner in the following terms :
"That Shri Radhey Shiam Shama 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 and 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."
An inquiry, was made in the matter by the Post Master General, Central Services Nagpur to whom it was transferred at 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 evidence 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.
2. 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(i) (b) and should be quashed. Reliance is placed on his behalf on two cases of this Court in Kameshwar Prasad v. State of Bihar , 1962 Supp (2) SCR 369 and O. K. Ghosh v. E. X. Joseph, AIR 1963 SC 812. 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.
3. 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 Rule 4-A and Rule 4-B of the Centra
