Radhey Shyam Sharma vs The Post Master General Central Circle

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

Court: Supreme Court of India

Case Number: Writ Petition No. 208 of 1963

Decision Date: 23 March 1964

Coram: K.N. Wanchoo, P.B. Gajendragadkar, J.C. Shah, N. Rajagopala Ayyangar, S.M. Sikri

In the matter of Radhey Shyam Sharma versus The Post Master General Central Circle, the Supreme Court of India delivered its judgment on 23 March 1964. The opinion was authored by Justice K.N. Wanchoo, and the bench comprised Justices P.B. Gajendragadkar, J.C. Shah, N. Rajagopala Ayyangar, and S.M. Sikri. The petitioner, Radhey Shyam Sharma, was an officiating Teleprinter Supervisor employed at the Central Telegraph Office in Jaipur. The respondent was the Post Master General of the Central Circle at Nagpur.

The factual backdrop involved a strike by employees of the Posts and Telegraphs Department that commenced at midnight on 11 July 1960 and extended throughout India, including a parallel strike in Jaipur. On that day, the petitioner was on duty from twelve noon until eight p.m. After completing his shift, he did not return home but proceeded to the staff dormitory where he fell asleep because of fatigue. At approximately eleven thirty p.m., he was awakened by some noise and attempted to leave the dormitory to go home. At that moment, police officers arrested him under the Essential Services Maintenance Ordinance, No. 1 of 1960. Although a criminal case was initially instituted, the criminal charge was later withdrawn.

On 21 July 1960, a chargesheet was served on the petitioner. The chargesheet alleged that Shri Radhey Shyam Sharma, identified as an IC/S Telegraphist stationed at the Central Telegraph Office in Jaipur, had committed gross misconduct by taking part in a demonstration in furtherance of the strike of the Posts and Telegraphs employees. The charges asserted that his participation violated orders dated 8 July 1960 issued by the Government of India under the Essential Services Maintenance Ordinance, 1960 (No. 1 of 1960), which prohibited strikes in any postal, telegraph or telephone service.

Following the filing of the chargesheet, an enquiry officer conducted an inquiry and found the petitioner guilty of the alleged misconduct. The enquiry officer ordered that the petitioner’s salary be reduced in the pay scale by three stages for a period of two years. Moreover, the order stipulated that the period of reduction would not be counted towards his future increments, thereby postponing any increase in his salary during the reduction period.

The petitioner appealed the order of the enquiry officer. The appeal was considered by the Director General, who examined the matter on its merits and ultimately rejected the petitioner’s appeal, leaving the reduction order in force.

During the proceedings before this Court, the petitioner contended that the punishment imposed on him violated his fundamental rights under Articles 19(1)(a) and 19(1)(b) of the Constitution of India. He relied upon two earlier Supreme Court decisions, namely Kameshwar Prasad v. State of Bihar and O.K. Ghosh v. E.X. Joseph, to argue that sections 3, 4 and 5 of the Essential Services Maintenance Ordinance were ultra‑vires the Constitution because they infringed upon the freedoms guaranteed by those articles. The petitioner further maintained that the charge against him lacked evidentiary support and therefore could not be sustained.

The Court addressed these submissions and held that the provisions of the Ordinance contained in sections 3, 4 and 5 did not contravene the fundamental rights enshrined in Articles 19(1)(a) and 19(1)(b). The Court observed that a careful reading of Article 19(1) shows that the Constitution does not confer a fundamental right to strike, and the Ordinance was intended to regulate only illegal strikes as defined therein. Consequently, the Ordinance did not impose any restriction on the petitioner's constitutional freedoms. The Court also noted that there was no dispute that Parliament possessed the authority to enact the Ordinance and that the President was empowered to promulgate it. Accordingly, the Court concluded that the Ordinance was constitutionally valid and that the two cases cited by the petitioner were not applicable to the facts of the present case. As a result, the punishment imposed on the petitioner could not be set aside on the ground that the charge violated his fundamental rights.

The Court held that sections three, four and five of the Essential Services Maintenance Ordinance, 1960 did not infringe the fundamental freedoms guaranteed by article nineteen of the Constitution, clauses one a and b. In examining article nineteen, the Court observed that the Constitution does not create a fundamental right to strike; the Ordinance merely addressed the conduct of an illegal strike as defined within its provisions. The Court further noted that the Ordinance contained no clause that curtailed any of the constitutional liberties mentioned in article nineteen. It was undisputed that the Parliament possessed the authority to enact legislation in the form of the Ordinance and, consequently, that the President was empowered to promulgate it. Because the legislative competence was not contested, the Court concluded that the Ordinance could not be said to contravene the rights protected by article nineteen, sub‑clauses a and b. The Court referred to the decision of All India Bank Employees Association v. National Industrial Tribunal, [1962] 3 S.C.R. 269, to support this view. The two judgments relied upon by the petitioner, namely Kameshwar Prasad v. State of Bihar and O. K. Ghosh v. E. X. Joseph, were held to be irrelevant to the present charge. Accordingly, the Court could not set aside the punishment imposed on the petitioner on the basis that the charge violated the constitutional freedoms of article nineteen. The precedent cases cited by the petitioner were deemed inapplicable. The Court further stated that, based on the undisputed facts, the authorities had reasonably concluded that the petitioner participated in a demonstration intended to further a strike scheduled to begin half an hour later, thereby constituting gross misconduct. Consequently, there was sufficient evidence to support the charge framed against the petitioner.

The petition was filed under article thirty‑two of the Constitution, seeking enforcement of fundamental rights. The petitioner, who had been appointed as a telegraphist by the Post Master General of Nagpur in 1949, was serving in July 1960 as an officiating teleprinter supervisor at Jaipur. On the midnight of 11 July 1960, employees of the Posts and Telegraphs Department initiated a nationwide strike, including a similar strike at Jaipur. The petitioner was on duty from twelve noon until eight p.m. on that day. After completing his duty, he went to the departmental dormitory and, being fatigued, fell asleep. At approximately eleven thirty p.m., he awoke to a noise, realized the late hour, and attempted to leave for his home. As he exited the dormitory, police officers arrested him on the allegation that he was among the demonstrators assembled outside in connection with the strike.

The arrest of the petitioner was effected pursuant to the Essential Services Maintenance Ordinance, No 1 of 1960, which the judgment refers to simply as the Ordinance. Subsequent to that arrest, on 13 July 1960 the petitioner was placed under suspension on the premise that a criminal proceeding was pending against him in a criminal court. That criminal proceeding, however, was withdrawn on 18 July 1960, thereby removing the immediate basis for the suspension. Nevertheless, on 21 July 1960 a charge‑sheet was formally served upon the petitioner. The charge‑sheet alleged that Shri Radhey Shyam Sharma, who was serving as a Class I/II Telegraphist at the Central Telegraph Office in Jaipur, had committed gross misconduct by taking part in a demonstration at midnight on 11 July 1960. The demonstration was described as being in furtherance of the strike undertaken by the Posts and Telegraphs employees, and the charge‑sheet asserted that such participation contravened the orders dated 8 July 1960 issued by the Government of India under the Essential Services Maintenance Ordinance, 1960 (No 1 of 1960), which prohibited any strike in the postal, telegraph or telephone services. An inquiry into these allegations was conducted by the Post Master General, Central Services, Nagpur, to whom the matter was transferred because the petitioner had originally been appointed by that officer. The inquiry officer concluded that the petitioner was guilty of the charge framed against him. Consequently, a notice was issued to the petitioner requiring him to show cause why a penalty consisting of a reduction in his time‑scale by three stages for a period of two years, which would affect his future increments, should not be imposed. After considering the explanation that the petitioner submitted in response to the show‑cause notice, the Post Master General ordered that the petitioner’s pay be reduced in the time‑scale by three stages for two years. The order further stipulated that on his eventual restoration the period of reduction would not operate to postpone his future increments.

Following the punitive order, the petitioner filed an appeal before the Director General of Posts and Telegraphs. The Director General, before deciding the appeal, directed that further evidence be taken on certain specified lines. No additional evidence was presented on behalf of the Department, and the matter was thereafter re‑submitted to the Director General for final consideration. After reviewing the entire case on its merits, the Director General rejected the petitioner's appeal. The present petition before the Supreme Court arises out of the Director General’s order. The petitioner contends that the punishment imposed upon him violates his fundamental rights guaranteed under Articles 19(1)(a) and 19(1)(b) of the Constitution and therefore seeks its quashing. In support of this contention, the petitioner relies on two earlier Supreme Court decisions, namely Kameshwar Prasad v. State of Bihar (1962) Supp. 3 S.C.R. 369 and O. K. Ghosh v. E. X. Joseph (1963) Supp. 1 S.C.R. 789. The petitioner further argues that sections 3, 4 and 5 of the Essential Services Maintenance Ordinance are ultra vires because they infringe sub‑clauses (a) and (b) of Article 19(1). Finally, the petitioner maintains that there was no evidence on which a finding that the charge against him had been proved could be based. The petition has been opposed by counsel representing the Union of India, which maintains that the Ordinance is fully constitutional and does not infringe any fundamental right, and that the two cases relied upon by the petitioner are inapplicable as they concerned different provisions of the Central Civil Services (Conduct) Rules, 1955, and that sufficient evidence existed to substantiate the charge.

The counsel for the respondent argued that the Ordinance was fully constitutional and did not infringe any fundamental rights. It was further submitted that the two judgments cited by the petitioner were of no assistance because those decisions concerned Rule 4‑A and Rule 4‑B of the Central Civil Services (Conduct) Rules, 1955. The respondent also maintained that the authorities possessed sufficient evidence on which to find that the charge against the petitioner had been proved. The Court first considered whether sections 3, 4 and 5 of the Ordinance violated any constitutional freedoms guaranteed in Article 19(1). The Ordinance, as its title indicated, had been enacted to ensure the maintenance of essential services. The need for such legislation arose out of a threat of strike, among other factors, by employees of the Department. Section 2(1) of the Ordinance defined “essential service” to include the postal, telegraph and telephone services. Section 3 provided that if the Central Government was satisfied that, in the public interest, it was necessary or expedient, it could, by a general or special order, prohibit strikes in any essential service specified in that order. The section further stipulated that after such an order was issued, no person employed in the relevant essential service could go on strike or remain on strike, and any strike that was declared or commenced, whether before or after the order, would be deemed illegal. Section 4 prescribed that any person who commenced an illegal strike under the Ordinance, or who went on, remained on, or otherwise participated in such a strike, would be liable to imprisonment. Section 5 provided that any person who instigated, encouraged, or otherwise acted to further an illegal strike would also be liable to imprisonment. The respondent’s challenge to the constitutionality of these provisions was based on the claim that they infringed the freedoms guaranteed by clauses (a) and (b) of Article 19(1), namely freedom of speech and expression and the right to assemble peaceably without arms. The Court noted that reasonable restrictions on these rights could be imposed only under clauses (2) and (3) of Article 19. After examining the material, the Court held that the contention that the Ordinance violated the rights in Article 19(1)(a) and (b) was unsupported. A reading of Article 19(1) revealed that the Constitution did not recognise a fundamental right to strike, and the Ordinance merely regulated conduct with respect to strikes that were declared illegal under its own provisions. This point had been thoroughly discussed in the Bank Employees’ case, where it was affirmed that there is no fundamental right to strike. The Court observed that the Ordinance contained no provision that curtailed freedom of speech or the right to assemble peaceably without arms. Consequently, the Ordinance did not interfere with the substantive guarantees of Article 19(1)(a) and (b), and there was no need to assess whether the restrictions could be justified under clauses (2) and (3) of Article 19.

The Court observed that the Ordinance contained no clause that limited freedom of expression, nor did it contain any provision that prevented any person from assembling peaceably and without arms. Consequently, the Ordinance did not interfere with the fundamental rights specified in sub‑clause (a) and sub‑clause (b) of Article 19(1). Because the Ordinance did not curtail those rights, the Court held that it was unnecessary to examine whether the provisions of the Ordinance could be justified under clauses (2) and (3) of Article 19. The Court noted that there was no dispute that Parliament possessed the authority to enact a law in the form of the Ordinance and that the President therefore had the power to promulgate it. Since the legislative competence was undisputed, the Court saw no basis on which the Ordinance could be said to offend the fundamental rights guaranteed under sub‑clauses (a) and (b) of Article 19(1), as the Ordinance contained no provision that restricted those freedoms in any manner. Counsel for the petitioner relied on two Supreme Court decisions that had been mentioned earlier. The first, Kameshwar Prasad’s case, concerned Rule 4‑A of the Bihar Government Servants’ Conduct Rules, 1956, which prohibited any government servant from taking part in any demonstration or from striking in relation to matters concerning his conditions of service. In that case the Court held that the prohibition of any demonstration, even an innocent one that could not disturb public tranquility, violated Articles 19(1)(a) and 19(1)(b). However, the Court also held that the part of the rule that forbade a strike was valid because there is no fundamental right to strike.

The Court then referred to O. K. Ghosh’s case, which dealt with Rules 4‑A and 4‑B of the Central Civil Services (Conduct) Rules, 1955. Following the reasoning in Kameshwar Prasad’s case, the Court partially struck down Rule 4‑A to the extent that it covered demonstrations and also declared Rule 4‑B invalid. The Court noted that the Ghosh case did not address the Ordinance at all, and the charge in that case was not framed in the same terms as the charge in the present matter. No argument had been raised before the High Court or this Court challenging the validity of the Ordinance, the validity of the order under appeal, or the illegality of the strike. In view of these circumstances, the Court found that the Ghosh decision offered no assistance to the petitioner and did not contain any ruling that could affect the validity of the Ordinance’s provisions. Accordingly, the Court expressed the opinion that the Ordinance was valid. The Court reiterated that the charge against the petitioner was framed solely on the basis of the Ordinance and bore no connection with Rules 4‑A and 4‑B.

In the matter, the petitioner had been charged with gross misconduct because, at midnight on 11 July 1960, he participated in a demonstration that furthered a strike by employees of the Department, in contravention of the order dated 8 July 1960. It was not contested that on 8 July 1960 the Central Government issued an order under section 3 of the Ordinance that prohibited any strike in the Department. Consequently, the strike that began at midnight on 11 July 1960 was illegal according to clause (b) of sub‑section (4) of section 3 of the Ordinance. Section 5 of the Ordinance, inter alia, provides that any person who acts in furtherance of an illegal strike is punishable under the Ordinance. The specific allegation against the petitioner was that he acted in furtherance of the strike scheduled to commence at midnight on 11 July 1960, and that such conduct constituted gross misconduct. The court found that this charge of gross misconduct was proved and that it formed the basis of the punishment imposed on the petitioner. The court noted that the charge bore no relationship to rules 4‑A and 4‑B, and therefore the two cases on which the petitioner relied were irrelevant to the present charge. Accordingly, the punishment could not be set aside on the ground that the charge violated the fundamental rights protected by sub‑clauses (a) and (b) of article 19(1), which guarantee freedom of speech and peaceful assembly. The charge did not concern those rights; it concerned participation in an illegal strike that had been prohibited by the Central Government order of 8 July 1962. Whether the petitioner’s “acting” took the form of speeches or a demonstration was immaterial, and in either circumstance a violation of article 19(1)(a) could be said to have occurred. The remaining issue for the court was to determine whether the petitioner’s claim that no evidence existed to support the charge was correct. The authorities relied upon the following undisputed facts: (1) the petitioner was the secretary of the local union of Department employees; (2) on that day the petitioner’s duty ended at 8 p.m., after which he ordinarily would have gone home, but he remained in the dormitory until 11:30 p.m., which was half an hour before the strike was to begin; (3) the demonstration was

The demonstration was organized in connection with the strike by the employees of the Department and it took place at eleven‑thirty p.m., which was only half an hour before the strike was scheduled to begin. The petitioner participated in that demonstration and, together with the other demonstrators, was arrested by the authorities. The authorities, relying on these undisputed facts, concluded that the petitioner had acted in furtherance of the strike that was to commence shortly thereafter and therefore held that he had committed gross misconduct. In the Court’s view, the existence of these facts meant that the authorities were not without evidence on which to base the charge that had been framed against the petitioner; consequently the proposition that there was no evidence for the charge could not be sustained. The Court therefore held that the petitioner’s contention that the authorities lacked any evidentiary basis for the charge must fail. As a result, the petition was dismissed. In the circumstances of the case, the Court did not make any order as to costs, and the petition was dismissed without further direction.