O. K. Ghosh and Another vs E. X. Joseph

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeals Nos. 378 and 379 of 1962

Decision Date: 30 October 1962

Coram: P.B. Gajendragadkar, Bhuvneshwar P. Sinha, K.N. Wanchoo, K.C. Das Gupta, J.C. Shah

In this case, the Supreme Court of India heard an appeal titled O. K. Ghosh and Another versus E. X. Joseph, with the judgment rendered on 30 October 1962. The bench was composed of P. B. Gajendragadkar, Bhuvneshwar P. Sinha, K. N. Wanchoo, K. C. Das Gupta and J. C. Shah. The petitioner was O. K. Ghosh together with another appellant, and the respondent was E. X. Joseph, a Central Government servant who held the office of Secretary of the Civil Accounts Association of non‑Gazetted staff. The citation for the decision was reported in the 1963 All India Reporter at page 812 and in the 1963 Supplement to the Supreme Court Reports (1) at page 789, with additional citator references indicating how the decision was later discussed in various law reports. The case concerned the applicability and constitutional validity of certain provisions of the Central Civil Services (Conduct) Rules, 1955, specifically rule 4(A) and rule 4(B). Rule 4(A) prohibited any government servant from taking part in demonstrations or strikes relating to his conditions of service, while rule 4(B) barred a servant from joining or remaining a member of any services association that the Government had not recognised or whose recognition had been withdrawn. The respondent had been proceeded against under both rules for taking part in demonstrations that were part of the preparation for a general strike by Central Government employees and for refusing to dissociate from the Association after the Government withdrew its recognition. He challenged the validity of the rules on the ground that they infringed the fundamental freedoms guaranteed by Article 19 of the Constitution. The High Court had held rule 4(A) to be entirely valid but had set aside the proceeding under rule 4(B), considering the latter invalid. The Supreme Court, however, reconsidered the earlier decision of this Court that rule 4(A), insofar as it prohibited participation in any demonstration, contravened the petitioner's fundamental rights under Article 19(1)(a) and (b). Referring to the decision in Kameshwar Parsad v. State of Bihar, the Court explained that participation in a demonstration organised for a strike and active involvement in its preparation did not, in law or fact, amount to participation in the strike itself. Consequently, the respondent could not be said to have taken part in a strike, and the proceeding against him under rule 4(A) was based on a provision that was partly invalid; therefore, that proceeding was also invalid. The Court further observed that rule 4(B) imposed a restriction on a clearly established right of government servants under Article 19, a restriction that was neither reasonable nor in the interest of public order as required by Article 19(4). The Court concluded that the restriction imposed by rule 4(B) infringed Article 19(1)(c) and therefore must be held invalid.

In the Court’s analysis, a restriction on government servants that was enacted under Article 19 but that was neither reasonable nor in the interest of public order fell within the ambit of Article 19(4). The rules governing the granting or withdrawal of recognition demonstrated that the government could act on grounds other than efficiency, discipline among the services, or public order. Consequently, the restriction imposed by rule 4 (B) of the Central Civil Services (Conduct) Rules, 1955 was found to infringe the freedom guaranteed by Article 19(1)(c) and, therefore, had to be declared invalid. The Court referred to the authorities in 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, to support this conclusion.

The matter before the Court was a civil appellate jurisdiction involving Civil Appeals Nos. 378 and 379 of 1962. Both appeals were filed by special leave from the judgment and order dated 18 January 1961 of the Bombay High Court in Miscellaneous Petition No. 255 of 1960. The Solicitor‑General of India, C. K. Daphtary, appeared for the appellants in Appeal 378/62 and for the respondents in Appeal 379/62, while B. R. L. Lyengar and R. H. Dhebar also represented those parties. For the respondent in Appeal 378/62 and the appellant in Appeal 379/62, counsel comprised A. S. R. Chari, M. K. Ranmmurthi, D. P. Singh and S. C. Agarwala. The judgment was delivered on 30 October 1962 by Justice Gajendragadkar, who addressed the legal issues raised by the parties and applied the relevant constitutional principles to the facts of the case.

The respondent, E. X. Joseph, was a government servant employed in the Audit and Accounts Department at Bombay. He held the post of Secretary of the Civil Accounts Association, an organization consisting of non‑gazetted staff of the Accountant‑General’s Office. This Association was affiliated with the All India Non‑Gazetted Audit and Accounts Association, which the Government of India had recognized in December 1956. In May 1959 the Government withdrew that recognition. Despite the withdrawal, the respondent continued to serve as Secretary‑General of the Association and refused to disassociate himself from its activities, even after being asked to do so. As a result of his continued involvement, on or about 3 June 1960, he was served with a charge‑sheet alleging a deliberate breach of Rule 4 (b) of the Central Civil Services (Conduct) Rules, 1955. The enquiry, conducted by Appellant No. 1, O. K. Ghosh, Accountant‑General of Maharashtra, concluded that the respondent was guilty of the charges and consequently issued a notice asking him to show cause why he should not be removed from service. On 25 July 1960, Appellant No. 1 sent a memorandum to the respondent indicating that an enquiry would be held for an alleged deliberate contravention of Rule 4 (A), on the ground that the respondent had actively participated in several demonstrations organized in connection with the strike of Central Government employees and had taken part in the preparations for that strike. Following these developments, on 8 August 1960 the respondent filed a writ petition in the original side of the Bombay High Court under Article 226 of the Constitution, seeking a writ of certiorari to quash the charge‑sheets and the departmental proceedings against him.

In the writ petition filed on August 8, 1960, the respondent sought the issuance of a writ of certiorari to set aside the charge‑sheets that had been served against him under Rules 4(B) and 4(A), and also asked for a writ of prohibition to prevent appellant No. 1 from continuing any further departmental proceedings. The petition additionally requested various incidental reliefs. The central ground of the respondent’s challenge was that both Rules 4(A) and 4(B) were void because they infringed the fundamental rights guaranteed to him under Article 19(1)(a), (b), (c) and (g) of the Constitution. This contention was opposed by appellant No. 1 and appellant No. 2, the Union of India, who had been impleaded as respondents; they contended that the impugned Rules were valid and, accordingly, the respondent’s claims for a writ of certiorari or a writ of prohibition could not be sustained. A Division Bench of the Bombay High Court heard the petition and, on 18 January 1961, dismissed the respondent’s claim for certiorari insofar as it related to the enquiry under Rule 4(A), holding that Rule 4(A) was valid and that the departmental proceedings initiated on that basis could not be successfully challenged. By contrast, the same Court held that Rule 4(B) was invalid and consequently quashed the departmental proceedings that had been commenced under that rule. Aggrieved by this judgment, the Attorney‑General and the Union of India filed Appeal No. 378/1962 before this Court, while the respondent filed Appeal No. 379/1962; both appeals were taken up by special leave. The appellants argue that the High Court erred in declaring Rule 4(B) invalid, whereas the respondent maintains that Rule 4(A) is itself invalid and that the High Court’s decision to the contrary is legally erroneous. Before addressing the parties’ arguments, it is necessary to set out the two impugned Rules, which form part of a body of Rules framed in 1955 under Article 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 relating to his condition of service. Rule 4‑B stipulates that no government servant shall join or continue as a member of any service association of government servants which (a) has not, within six months of its formation, obtained government recognition under the prescribed Rules, or (b) whose recognition has been refused or withdrawn by the government under those Rules. The case against the respondent alleges that he contravened both of these Rules.

In the present case, the respondent was found to have violated both Rule 4‑A and Rule 4‑B. The validity of Rule 4‑A had recently been examined by this Court in the decision of Kameshwar Prasad v. State of Bihar. During the hearing of that appeal, both the original petitioners and the respondent intervened, and the Court heard their submissions. The Court held that the present form of Rule 4‑A, which bans any form of public demonstration by a government servant, contravenes the rights guaranteed to government servants under Article 19(1)(a) and (b) of the Constitution, and therefore the Rule should be struck down. While striking down the Rule, the Court clarified that the portion of the Rule that prohibits a strike cannot be invalidated merely on the ground that there is no fundamental right to strike; consequently, if the Rule were invoked against a servant for having taken any strike covered by Rule 4‑A, the servant could not successfully argue that the Rule was void. On the basis of this precedent, the Court concluded that the High Court erred in holding that Rule 4‑A was wholly valid. The discussion then moved to the validity of Rule 4‑B. The High Court had previously held that Rule 4‑B infringed the respondent’s fundamental right under Article 19(1)(c), which permits government employees to form associations or unions, and therefore declared the Rule invalid. Counsel for the government argued that, in determining the legality of the Rule, the Court must consider clause (4) of Article 19. Clause (4) stipulates that the freedom of association guaranteed by Article 19(1)(c) does not affect any existing law that imposes, in the interests of public order or morality, reasonable restrictions on the exercise of that right. The counsel submitted that the impugned Rule merely imposes a reasonable restriction on the exercised right, and therefore the Rule is saved by the protection afforded in clause (4). This contention raised the issue of how to interpret clause (4). The question was whether the Rule can be regarded as imposing a reasonable restriction in the interests of public order. It is undisputed that government servants may be subject to rules aimed at maintaining discipline within their ranks and ensuring the efficient performance of their duties. Such discipline and efficiency can, to some extent, be linked to public order. However, when assessing the scope of clause (4), it must be borne in mind that the Rule must satisfy the requirement of being a restriction that is truly in the interests of public order.

In order for a restriction to satisfy clause (4), it must both be reasonable and be imposed in the interests of public order. The expression “public order” also appeared in clause (2), where it was listed together with “security of the State”. The Court observed that the words must carry the same meaning in both clauses. Since clause (2) already gave a separate, explicit reference to the security of the State, the term public order could not be read to include that concept, although in its broadest sense it might be capable of doing so. Consequently, in clause (2) the phrase public order was understood to be virtually synonymous with public peace, safety and tranquility. That same narrow meaning could not be expanded in clause (4); the denotation of the words could not be any wider there. When clause (4) speaks of a restriction “imposed in the interests of public order”, it is necessary to examine what the phrase “in the interests of” actually entails. The provision cannot be interpreted to allow a restriction whose connection with public order is remote or indirect. A restriction may be said to be in the interests of public order only where the link between the restriction and public order is proximate and direct. An indirect, far‑fetched or unreal connection would not fall within the scope of the expression. This interpretation is reinforced by the other requirement of clause (4) that the restriction itself must be reasonable. It would be difficult to hold that a restriction which does not directly relate to public order could be deemed reasonable merely because its connection with public order is remote or speculative. Accordingly, reading the two requirements together, the impugned restriction could satisfy the test of clause (4) only if its connection with public order was shown to be rationally proximate and direct. This approach was adopted by the Court in The Superintendent Central Prison, Fatehgarh v. Dr Ram Manohar Lohia, and was echoed in the observations of Patanjali Sastri T. in Rex v. Basudev, where it was held that “the connection contemplated between the restriction and public order must be real and proximate, not far‑fetched or problematical.” In light of this legal position, the validity of the challenged rule had to be examined. The Court noted that there was no dispute that the fundamental rights guaranteed by Article 19 could be claimed by government servants. Although Article 33 empowers Parliament to modify the application of those rights to the Armed Forces, it clearly indicates that all citizens, including government servants, remain entitled to the rights guaranteed by Article 19. Thus, the validity of the impugned rule had to be judged on that basis.

The Court observed that the respondent together with his co‑employees possessed the constitutional entitlement to form associations or trade unions. It noted that Rule 4‑B placed a limitation on this entitlement. According to the rule, a government servant was required to relinquish his membership in the Service Association of Government Servants as soon as the government withdrew the recognition granted to that association, or if within six months after the association’s formation no recognition was accorded. In effect, the right to belong to an association was made conditional upon the government’s continued recognition of that association. The Court explained that when an association secured recognition and retained it, government servants were permitted to remain members; however, if the association failed to obtain recognition or if its recognition was subsequently withdrawn, the servants were compelled to cease their membership. This, the Court said, constituted the plain operational effect of the impugned rule.

The Court then examined whether the restriction could be justified as serving the interests of public order or as a reasonable limitation. It concluded that the answer to both questions was negative. The Court found it difficult to discern any direct or proximate, or reasonable, connection between government recognition of an association and the discipline or efficiency of its members, nor could it identify a link between recognition and the maintenance of public order. Citing the authority (1) A.I.R. 1960 S.C. 633; [1949] S.C.R. 657, 661, the Court referred to Rule 5 of the 1959 Recognition of Service Association Rules, noting that these provisions did not establish a necessary connection between recognition or its withdrawal and public order. Rule 5 set out various conditions—such as prohibiting disrespectful language in communications with the government, requiring prior government permission before affiliating with other unions or associations, and forbidding the publication of any periodical without prior approval. The Court held that none of these conditions demonstrated a rational, direct, or proximate relationship to public order. Consequently, even without a detailed examination of every condition imposed by Rules 4, 5, or 6, the Court found that the grant or withdrawal of recognition could be based on considerations unrelated to the efficiency, discipline, or public order, rendering the restriction ineffective and illusory under Article 19(1)(c).

The Court observed that a different result might have arisen if recognition or its withdrawal were based on grounds having a direct, proximate and rational connection with public order. However, that reasoning could not be applied to each of the conditions prescribed by Rules 4, 5 or 6. Consequently, the Court held that recognition could be denied or withdrawn on grounds completely unrelated to public order. In such a situation, the constitutional right to form associations guaranteed by Article 19(1)(c) became subject to a strict condition that the association must obtain and retain government recognition. The Court found that this condition made the guaranteed right under Article 19(1)(c) ineffective and essentially illusory. Therefore, the Court agreed with the High Court’s conclusion that the impugned Rule 4‑B was invalid. As a result, appeal No. 378/1962 failed and was dismissed.

Regarding appeal No. 379/1962, the Court partially reversed the High Court’s view on the validity of the whole of Rule 4‑A. The Court noted that the departmental proceedings initiated against the respondent for an alleged breach of Rule 4‑A had to be set aside because the alleged violation concerned the portion of Rule 4‑A that this Court had held invalid. The charge against the respondent alleged that he deliberately violated Rule 4‑A by actively participating in demonstrations organized in connection with a strike of Central Government employees and by taking part in the preparations for that strike. The Court referred to the decision in Kameshwar Prasad’s case, which held that any rule prohibiting demonstrations was invalid, while a rule prohibiting participation in strikes was not per se invalid. The present charge involved participation in demonstrations, not participation in a strike itself. Although the demonstrations were connected with the strike, the Court explained that this connection did not convert the conduct into participation in the strike either in fact or in law. Likewise, taking part in the strike’s preparations did not amount to participation in the strike. Therefore, the charge could not be reasonably interpreted as a contravention of the part of Rule 4‑A that prohibited strikes. Because the charge rested on the invalid portion of Rule 4‑A, the departmental proceedings founded on that charge were also invalid. Consequently, appeal No. 379/1962 was allowed, and the departmental proceedings against the respondent under Rules 4‑A and 4‑B were quashed. No order as to costs was made, with appeal 378/62 dismissed and appeal 379/62 allowed.

In this case, the Court observed that the accusation against the respondent could not be reasonably interpreted as indicating that his conduct amounted to a breach of the rule that prohibited strikes. Consequently, the Court noted that while Rule 4‑A had been held partially, but not entirely, invalid by this Court in the earlier decision of Kameshwar Prasad (1), the specific charge in the present matter was founded upon the portion of that rule which had been declared invalid. Because the charge relied on an invalid statutory provision, the Court concluded that the departmental proceedings initiated on the basis of that charge were likewise invalid. Accordingly, the Court ordered that appeal No. 379/1962 be allowed and that the departmental proceedings brought against the respondent for an alleged violation of Rules 4‑A and 4‑B be set aside and quashed. The Court further stated that no order as to costs would be made in this matter. By contrast, appeal No. 378/62 was dismissed. Thus, the final disposition was that appeal No. 379/62 was allowed, rendering the departmental action against the respondent null and void. (1) [1962] Supp. 3 S.C.R. 369.