LexRADHEY SHYAM SHARMA versus THE POST MASTER GENERAL CENTRAL CIRCLE NAGPUR
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' . 7 S.C.R. SUPRE'.IIE COURT REPOHTS 403 RADHEY SHY AM SHARMA v. THE POST MASTER GENERAL CENTRAL CIRCLE NAGPUR [P. B. GA,JENDRAGADKAR, c. J., K N. WANCHOO, J. c. SHAH, N. RAJAGOPALA AYYANGAR ANDS. M. SIKRI, JJ.] Fundamental Right-Postal employee taking part in a de- monstration in furtherance of the strike-Ordinance prohibiting strikes in any postal, telegraph or telephone service-Constitu- tionality of-Essential Services Maintenance Ordinance, No. 1 of 1960, ss. 3, 4 and 5--Constitution of India, Arts. 19(1)(a). J9(1)(b}. The petitioner was serving as an officiating Teleprinter Supervisor at Jaipur when the employees of the Posts and Tele· graphs Department went on strike from the midnight of July 11, 1960, throughout India and there was a similar strike at Jaipur. The petitioner's case was that he was on duty that day from 12 noon to B p.m. and aft€r his duty was over. he did not go home but went to the dormitory where he fell asleep as he was tired. On hearing some noise he woke up at 11-30 p.m. and want- ed to go home but was arrested by the police under the Essential Services Maintenance Ordinance, No. 1 of 1960. The criminal charge was however withdrawn. On July 21, 1960, a charge. sheet was served on the petitioner in the following terms: "That Shri Radhey Shyam Sharma I C/S Telegraphist, CTO Jaipur committed gross misconduct in that on the mitlnight of the 11th July, 1960. he took part in a demonstration in furtherance of the strike of the P. & T. Employees in violation of the orders dated 8-7-1960 issued by the Government of India under the 'Essen- tial Services Maintenance Ordinance, 1960 (1 of 1960)' prohibiting strikes in any Postal, telegraph or tele- phone service''. The enquiry officer found him guilty of the charge and order- ed that his pay should be reduced in the time scale by three stages for a period of two years and on restoration the period of reduc~ tion was not to operate to postpone his future increments. 0'1 appeal, the Director General considered the whole matter on merits and rejected the appeal. In this Court it was urged that the punishment imposed upon the petitioner was violative of his fundamental rights under Arts. 19(l)(a) and (b), reliance being placed on t\vo cases of this court in Ka1neshwar Prasad v. State of Bihar and 0. K. Ghosh v. E. X. Joseph; that .ss. 3, 4 and 5 of the Ordinance were ultra-vires, as they contravened Art. I9(])(a) and (b) and that in any case there was no evidence on which it could .- be found that the charge ai:ainst him had been proved . .. Held: .The provisions of the Ordinance in ss. 3, 4 and 5 did not violate the fundamental rights enshrined in Art. 19(l)(a) and (b). A perusal of Art. 19(1) shows that there is no fundamental right to strike, and all that the ordinance provided was with respect to any illegal strike as provided in the Ordinance. There was no provision in the Ordinance which in any way restricted those fundamental rights. It was not <in dispute that P:irliament had the competence to make a law in the terms of the Ordinance and therefore the President had also the power to promulgate such an Ordinance. · 19G4 !-larch 23 1164. Radhey BAyam Sloarma v. The P08tmaater General Central Circle. N01Jpur 404 SUPREl\IE COURT REPORTS (1964] T~e competence of the legislature therefore being not in dis- pute 1t cannot be held that the Ordinance violated the funda- mental rights guaranteed under Art. 19(l)(a) and (b). . A!! India Bank EmployeetAssociation v. National Industrial Tribunal, [1962] 3 S.C.R. 269, referred to. The two cases relied on by the petitioner have no relevance in connection with the charge in the present case. The punish- ment given to the petitioner cannot therefore be set aside on the ground that the charge was in violation of the fundamental rights guaranteed under Art. 19(l)(a) and (b). Kameshwar Prasad v. State of Bihar, [1962] Supp. 3 S.C.R. 369 and 0. K. Ghosh v. E. X. Joseph, [1963] Supp. l S.C.R. 789, held inapplicable. · If on the undisputed facts the authorities came to the ron- clusion that the petitioner acted in furtherance of the strike which was to commence half an hour later and was thus guilty of gross misconduct, it could not be said that there was no evidence on which the authorities concerned could find the charge framed against the petititoner proved. ORIGINAL JURISDICTION: Writ Petition No. 208 of 1963- Petition under Art. 32
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