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HIGH COURT OF BOMBAY
TAMBE, GOKHALE, JJ.
S. Vasudevan
Versus
S.D. Mital
Misc. Petns. Nos.248, 254, 255 and 256 of 1960
Decided On : 18-01-1961
The Supreme Court of India ruled on the constitutionality of the Essential Services Maintenance Ordinance, 1960, and the Central Civil Services (Conduct) Rules, 1955. The Court held that the Ordinance was a valid exercise of the President's power to promulgate ordinances during recess of Parliament, and that the restrictions imposed on the right to strike were reasonable and in the interests of public order. However, the Court held that Rule 4(B) of the Central Civil Services (Conduct) Rules, which prohibited government servants from joining or continuing to be members of unrecognized service associations, was unconstitutional as it violated the right to form associations or unions.
Fact of the Case:
The Essential Services Maintenance Ordinance, 1960, was promulgated by the President of India in response to a general strike by Class III employees of the Union. The Ordinance prohibited strikes in certain essential services and made it a penal offense to participate in or instigate such strikes. The Central Civil Services (Conduct) Rules, 1955, prohibited government servants from participating in demonstrations or resorting to strikes in connection with their conditions of service, and from joining or continuing to be members of unrecognized service associations.
Finding of the Court:
The Court held that the Ordinance was a valid exercise of the President's power to promulgate ordinances during recess of Parliament, and that the restrictions imposed on the right to strike were reasonable and in the interests of public order. However, the Court held that Rule 4(B) of the Central Civil Services (Conduct) Rules, which prohibited government servants from joining or continuing to be members of unrecognized service associations, was unconstitutional as it violated the right to form associations or unions.
Issues: 1. Whether the Essential Services Maintenance Ordinance, 1960, was a valid exercise of the President's power to promulgate ordinances during recess of Parliament? 2. Whether the restrictions imposed on the right to strike by the Ordinance were reasonable and in the interests of public order? 3. Whether Rule 4(B) of the Central Civil Services (Conduct) Rules, 1955, which prohibited government servants from joining or continuing to be members of unrecognized service associations, was constitutional.
Ratio Decidendi: 1. The Court held that the Ordinance was a valid exercise of the President's power to promulgate ordinances during recess of Parliament because: a. The President was satisfied that circumstances existed which rendered it necessary for him to take immediate action. b. The Ordinance was promulgated in the interests of public order. c. The restrictions imposed on the right to strike were reasonable and proportionate to the threat to public order. 2. The Court held that Rule 4(B) of the Central Civil Services (Conduct) Rules, 1955, was unconstitutional because it violated the right to form associations or unions. The Court found that the rule was not a reasonable restriction on the right to form associations or unions, and that it was not in the interests of public order.
Final Decision: The Court dismissed the petitions challenging the constitutionality of the Ordinance and Rule 4(A) of the Central Civil Services (Conduct) Rules, 1955. However, the Court allowed the petition challenging the constitutionality of Rule 4(B) of the Central Civil Services (Conduct) Rules, 1955, and quashed the charge framed against the petitioner for breach of that rule.
TAMBE, J.:-These four Petitions have been placed before us for hearing on being referred to by Mr. Justice K.K. Desai. These four petitions give rise to some common questions of law and can conveniently be disposed of by a common judgment. In the first two petitions, M.P. Nos.248 and 254 of 1960, constitutionality of the Essential Services Maintenance Ordinance, 1960, No.1 of 1960, promulgated by the President has been challenged, while in the other two petitions, M.P. Nos.255 and 256 of 1960, constitutionality of Rule 4(A) and rule 4(B) of the Central Civil Services (Conduct) Rules, 1955, has been challenged. The questions raised are of considerable importance.
2. Facts giving rise to these petitions may be briefly stated. In exercise of the powers conferred by clause (1) of Article 123 of the Constitution, the President of India promulgated an Ordinance called "Essential Services Maintenance Ordinance, 1960", hereinafter referred to as the Ordinance. It is in the following terms:-
"The Essential Services Maintenance Ordinance, 1960.
No.1 of 1960.
Promulgated by the President in the Eleventh Year of the Republic of India.
An Ordinance to provide for the maintenance of certain essential services and the normal life of the community.
Whereas Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action;
Now, therefore, in exercise of the powers conferred by clause (1) of Article 123 of the Constitution, the President is pleased to promulgate the following Ordinance:-
1. (1) This Ordinance may be called the Essential Services Maintenance Ordinance, 1960.
(2) It extends to the whole of India: Provided that it shall not apply to the State of Jammu and Kashmir except to the extent to which the provisions of this Ordinance relate to the Union employees.
(3) It shall come into force at once.
2. (1) in this Ordinance-
(a) "Essential service" means-
(i) any postal, telegraph or telephone service;
(ii) any railway service or any other transport service for the carriage of passengers or goods by land, water or air;
(iii) any service connected with the operation, or maintenance of aerodromes, or with the operation, repair or maintenance of aircraft;
(iv) any service connected with the loading, unloading, movement or storage of goods in any port;
(v) any service connected with the clearance of goods or passangers through the customs or with the prevention of smuggling;
(vi) any service in any mint or security press;
(vii) any service in any defence establishment of the Government of India;
(viii) any service which the Central Government, being of opinion that strikes therein would prejudicially affect the maintenance of any public utility service or would result in the infliction of grave hardship on the community may, by notification in the Official Gazette declare to be an essential service for the purpose of this Ordinance:
(b) "Strike" means the cessation of work by a body of person employed in any essential service acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment.
(2) Every notification issued under sub-clause (viii) of clause (a) of sub-section (1) shall be laid before each House of Parliament as soon as may be after it is made, and shall cease to operate at the expiration of forty days from the reassembly of Parliament unless before the expiration of that period a resolution approving the issue of the notification is passed by both Houses of Parliament.
EXPLANATION:- Where the Houses of Parliament are summoned to re-assemble on different dates, the period of forty days shall be reckoned from the later of those dates.
3. (1) 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
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