# A.V. Thomas Iii Oo., Lttl v. Commissimur •f

- **Citation:** [1963] Supp. 1 S.C.R. 789
- **Court:** Supreme Court of India
- **Decided:** 1961-01-18
- **Case number:** Civil Appeals Nos. 378 and 379 of 1962
- **Bench:** B. P. Sinha, P. B. GAJllNDRA.GADKAR, K. N. Wanchoo, K. C. DAB GUPTA andJ. C. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-v-thomas-iii-oo-lttl-v-commissimur-f-2746
- **Pages:** 11

## Headnote

Service8 Rule8-ABBOciation of non-Gazetted civil •/,affWilktlrawal of recwnition by Government-Proceeding• agai118t
Secretary for refUBal to dis•ociate-Participation in preparation
for Btrike-Comlitutional Validity of Rules-Central Civil
S.rviwi (Conduct) Rules, 1965, rr. 4(A), 4(B)-Comtitution of
India, Art. 19.
The respondent, a Central Government servant, who was
the Secretary of the Civil Accounts Association- of nonGazcttcd Staff, was departmentally proceeded against under
rr. 4(A) and 4(.B) of the Central Civil Services (Conduct)
Rules, 1955, for participating in demonstrations in preparation
of a general strike of Central Government employees and for
refusing to dissociate from the Association after the Government
had withdrawn its recognition of it.
He impugned the validity
of the said rules on the ground that they infringed his fondamental rights under Art. 19 of the Constitution. The High
Court held that r. 4(A) was wholly valid but quashed the
proceeding under r. 4(.B) which it held to be invalid. Ruic
4(A) provided that no Government servant shall participate in
any demonstration or resort to any form of strike in connection
with any matter pertaining to his conditions of service and
r. 4(B) provided that no Government servant shall join or
continue to be a member of any services Association whicb the
1962
A.V. Thomas Iii
Oo., Lttl.
v.
Commissimur •f
(naomt·lax,
(Bon1aJor1) K,,,1to
Hidayatullah, J,
J96Z
1962
0. K. Ghosh
v.
E. X. Joseph
790 SUPREME COURT REPORTS [1963] SUPP.
Government did not recognise or in respect of which recognition
had been refused or withdrawn by it.
Held, that in view of the decision of this Court that r 4(A)
of the Central Civil Services (Conduct) Rules, 1955, in so far as
it prohibited any form of demonstration was violative of the
Government servants' fundamental rights under Art. 19(1) (a)
and (b), the High Court was in error in holding that the rule
was wholly valid.
Ka.meshwar Parsad v. The State of Bihar, [1962] supp.
3 S.C.R. 369, referred to.
Participation in demonstration organised for a strike and
taking active part in preparation for it cannot, either in law or
fact, mean. participation in the strike. The respondent could
not, therefore, be said to have taken part in a strike as such and
the proceeding against him under s. 4( A) being based on that
part of it which was invalid must also be inval;d,
It was clear that r. 4(B) of the said Rules imposed restriction on the undoubted right of the Government Servants
under Art. 19 which were neither reasonable nor in the interest
of public order under Art. 19(4). The rules clearly showed
that in the granting or withdrawin~' of recognition, the Government might be actuated by considerations other than those of
efficiency or ,discipline amongst the services or public order.
The restriction imposed by r.4 (B), therefore, infringed Art.
19(1) (c) and must be held to be invalid.
The Superintendent, Central Prison, Fatehgarh v. Dr. Ram
Manohar Lohia, A.LR. 1960 S,C,. 633 and Rex v. Basudev,
[1949] F.C.R. 657, referred to.

## Text

I S.C.R. SUPREME COURT REPORTS
789
the benefit of
s. 10 (2) (xi). In our opinion,
s. 10(2)(xi) was inapplicable to the facts of this case.
In the result the appeal must fail and it is dismissed.
The assessee company shall pay the costs
of the
respondent.
Appeal dismissed.
0. K. GHOSH AND ANOTHER
v.
E. X. JOSEPH
(B. P. SINHA., c. J., P. B. GAJllNDRA.GADKAR, K. N.
WANCHOO, K. C. DAB GUPTA andJ. C. SHAH, JJ.)
Service8 Rule8-ABBOciation of non-Gazetted civil •/,affWilktlrawal of recwnition by Government-Proceeding• agai118t
Secretary for refUBal to dis•ociate-Participation in preparation
for Btrike-Comlitutional Validity of Rules-Central Civil
S.rviwi (Conduct) Rules, 1965, rr. 4(A), 4(B)-Comtitution of
India, Art. 19.
The respondent, a Central Government servant, who was
the Secretary of the Civil Accounts Association- of nonGazcttcd Staff, was departmentally proceeded against under
rr. 4(A) and 4(.B) of the Central Civil Services (Conduct)
Rules, 1955, for participating in demonstrations in preparation
of a general strike of Central Government employees and for
refusing to dissociate from the Association after the Government
had withdrawn its recognition of it.
He impugned the validity
of the said rules on the ground that they infringed his fondamental rights under Art. 19 of the Constitution. The High
Court held that r. 4(A) was wholly valid but quashed the
proceeding under r. 4(.B) which it held to be invalid. Ruic
4(A) provided that no Government servant shall participate in
any demonstration or resort to any form of strike in connection
with any matter pertaining to his conditions of service and
r. 4(B) provided that no Government servant shall join or
continue to be a member of any services Association whicb the
1962
A.V. Thomas Iii
Oo., Lttl.
v.
Commissimur •f
(naomt·lax,
(Bon1aJor1) K,,,1to
Hidayatullah, J,
J96Z
1962
0. K. Ghosh
v.
E. X. Joseph
790 SUPREME COURT REPORTS [1963] SUPP.
Government did not recognise or in respect of which recognition
had been refused or withdrawn by it.
Held, that in view of the decision of this Court that r 4(A)
of the Central Civil Services (Conduct) Rules, 1955, in so far as
it prohibited any form of demonstration was violative of the
Government servants' fundamental rights under Art. 19(1) (a)
and (b), the High Court was in error in holding that the rule
was wholly valid.
Ka.meshwar Parsad v. The State of Bihar, [1962] supp.
3 S.C.R. 369, referred to.
Participation in demonstration organised for a strike and
taking active part in preparation for it cannot, either in law or
fact, mean. participation in the strike. The respondent could
not, therefore, be said to have taken part in a strike as such and
the proceeding against him under s. 4( A) being based on that
part of it which was invalid must also be inval;d,
It was clear that r. 4(B) of the said Rules imposed restriction on the undoubted right of the Government Servants
under Art. 19 which were neither reasonable nor in the interest
of public order under Art. 19(4). The rules clearly showed
that in the granting or withdrawin~' of recognition, the Government might be actuated by considerations other than those of
efficiency or ,discipline amongst the services or public order.
The restriction imposed by r.4 (B), therefore, infringed Art.
19(1) (c) and must be held to be invalid.
The Superintendent, Central Prison, Fatehgarh v. Dr. Ram
Manohar Lohia, A.LR. 1960 S,C,. 633 and Rex v. Basudev,
[1949] F.C.R. 657, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 378 and 379 of 1962.
Appeals by special leave from the judgment
and order dated January 18, 1961 of the Bombay
High Court in Miscellaneous 'petition No. 255 of
1960.
C. K. Dapht,ary, Solicifm-General of India,
B. R. L. Iyengar and R. H. Dhebar, for the appellants
in C. A. No. 378/62 and respondents in C. A. No.
379/62.
A. S. R. Chari, M. K. Rarnamurthi, D. P.
Singh, and 8. C. Agarwala, for the respondent in
C. A. No. 378/62 and Appellant in C. A. No. 379/62.
I S.C.R. SUPREME COURT REPORTS
791
1962. October 30. The Judgment of the Court
was delivered by
GAJENpRAGADKAR, J.--The respondent E.X.
Joseph is in the service of the Government of India
in the Audit and accounts Department at Bombay.
He was she Secretary of the Civil Accounts Association which consists of non·gazetted staff of the
Accountant-General's Office. The said Association was
affiliated to the All India Non-Gazetted Audit and
Accounts Association. The latter Association had
been recognized by .the Governmeut of India in
December, 1956. In May, 1959, the Government
withdrew recognition of the said Association. In
spite of the withdrawal of the recognition of the
said Association, the respondent continued to be its
Secretary General and refused to dissociate himself
from the activities of the said Association, though
called upon to do so.
As a result of his activities,
on or about June 3, 1960, he was served with
a charge-sheet for having deliberately committed
breach of Rule 4(b) of the Central Civil Services
(Conduct) Rules, 1955 (hereinafter called the Rules).
Appellant No. 1 0. K. Ghosh, Accountant-General,
Maharashtra, who held the enquiry, found
the
respondent guilty of the charges levelled against him.
Accordingly, a notice to show cause why he should
not be removed from service was served on the
respondent.
On July 25,
1960, appellant No. 1 served
a memo on the respondent intimating to him that it
was proposed to hold an enquiry against him for
having deliberately contravened the provisions of
Rule 4( A) of the Rules in so far as he participated
actively in various demonstrations organised in
connection with the strike cf Central Government
employees and had taken active part in the preparations made for the said strike.
On
August 8, 1960, the respondent filed
a writ petition on the original side of the Bombay
1962
0. K. Ghosh
v.
E. X. Joseph
Gajmdragadkar, J.
1962
O, K. Ghosh
v.
E. X. Jo,,ph
Gajendragadkor, J.
792 SUPREME COURT REPORTS [1963] SUPP.
High Court under Art. 226 of the Constitution and
prayed that a writ of certiorari should be issued to
quash the charge-sheets issued against him by appellant No. 1 in respect of the alleged contravention
of Rules 4 (B) and 4 (A) and a writ of prohibition
should be issued prohibiting appellant No. 1 from
proceeding further with the departmental proceedir1gs
against the respondent. In his petition, the respondent asked for other incidental reliefs.
The main ground on which the respondent
challenged the validity of the departmental proceedings initiated against him was that Rules 4(A} and
4(B) were void in so far as they contravened the
fundament11l rights guaranteed to the respondent
under Art.19(1) (a), (b}, (c) and (g).
This contention
was resisted by appellant No. 1 and appellant No. 2,
the Union of India, who had been impleaded as
respondents to the said petition. It was ur~ed on their
behalf that the impugned Rules were vahd and so,
the claim for a writ of certiorari or writ of prohibition was not justified.
The writ petition was heard by a Division
Bench of the Bombay High Court. On January 18,
1961, the
High Court
rejected
the
petition
in so far as the respondent had claimed writs in
regard to the enquiry for breach of Rule 4(A}; the
Court held that the said Rule was valid and so, the
departmental proceedings initiated against the respondent in respect of the breach of the said Rule could
not be successfully impeached. In respect of the
proceedings under Rule 4(B), however, the High
Court held that the said Rule was invalid and so,
the departmental proceedings in respect of the breach
of the said Rule have been quashed. It is against
this decision that the appellants, the A.G. and the
Union of India, have come to this Court by Appeal
No. 378/1962; whereas E. X. Joseph the respondent,
has preferred Appeal No. 379/1962. Both the appeals
have been brought to this Court by special leave.
1 S.C.R. SUPREME COURT .REPORTS
793
The appellants contend that the High Court
was in error in holding that. Rule 4(B) was invalid,
whereas t.he respondent urges that Rule 4(.A) was
invalid and the decision of the High Court to the
contrary-is .errQneous in law. Before dealing- with
the contentions of the: parties, it is necessary to set
out the two impugned Rules.
These Rules form
part of a body of Ruies framed in 195_5· under
Art. 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
pertaining to his condition of service, whereas Rule
4-B lays down that no 'Government servant shall join
or. continue to be a member of ariy Service Assodation of Government servants : (a) which has not,
within a period of six . months from its formation,
obtained the recognition 0£ the Government under
the Rules prescribed in that behalf, or (b) recognition
in respect of which has been refused or withdrawn
by the Government under the said Rules. The case
against the respondent is that he has contravened
both these Rules.
'The question ab,qut the validity of Rule 4-A
has been the subject-matter of a recent decision of
this Court in Kameshwar Prasad v..
The State of
Bihar '(').
At the hearing of the said appeal, the
appellants and the respondent had intervened and
were heard by the Court. In that case, this Court
has held that Rule 4-A in the form in which it nqw
stands prohibiting any form of demonstration is
violative of the Government servants' rights under
Art. 19(1)(a) & (b) and should, therefore, be struck
down. In striking down the Rule in this limited
way, this Court made it clear that in so far as the
said Rule prohibits a strike, it cannot be struck down
for the reason that there is no -fundamental righ,t to
resort to a strike. In other words; if tl;te Rt:!~ was
(1) [1~~2] SUP?•, s.c.R.. ~b'S.
I96Z
O. r;:, Ghosh
Y.
E. X. J01ph
Gaj1ntlra1aJk•r. J,
1'62 -
0. /f. Glursh
"'·
E. X.J.,ih
794 SNPREME COURT REPORTS[l963] SUPP.
invoked against a Government servant 011 the ground
that he had resorted to any form of strike specified
by Rule 4-A, the Government servant would not be
able to ccmtend that the Rule was invalid in that
behalf. In view of this decision, we must hold that
the High Court was in error in coming to the conclusion that Rule 4-A was valid as a whole.
That takes us to the question about the validity
of Rule 4-B.
The High Court has held that the
impugn.ed Rule contravenes the fundamental right
guaranteed to the respondent by
Art.
19 (1) (c).
The respondent along with other Central Government servants is entitled to form Associations or
Unions and in so far as this right is prejudicially
controlled and adversely affected by the impugned
Rule, the said Ruic is invalid.
The learned SolicitorGeneral contends that in deciding the question about
the validity of the Rule, we will have to take into
account the provision of clause (4) in Art. 19. This
clause provides that Art. 19(1) (c) will not affect the
oper2tion of any existing law in so far as it imposes,
in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred
by the said sub·clause.
The argument is that the
impugned Rule does nothing more than imposing a
reasonable restriction on the exercise of the right
which is alleged to have been contravened and, therefore, the provision of the rule is saved by clause (4).
This argument raises the problem of construction of clause (4).
Can it be said that the Rule imposes a rcawnablc re·striction in the interests of public
order ~ There can be no doubt that Government
servants can be subjected to rules which are intended
tCl maintain discipline amongst their ranks and to
lead to an efficient discharge of their duties.
Discipline amongst
Government employees and their
efficiency may, in a sense, be said to be related to
public order.
But in considering·the scope of clause
(4), it has to be borne in mind that tho:: rule must he
r
1 S.C.R.
SUPREME COURT REPORTS
795
f
in the interests of pub] ic order and must amount to
a reasonable restriction.
The words "public order"
occur even in clause (2), which refers, inter alia, tp
security of the 'State and public order.
There-can be
nQ doubt that the said words must have the same
meaning in both ciauses (2) and (4).
So far as clause
(2) is concerned, security of the State having been
expressly and specifically provided for, public order
cannot include the security of State.. though in its
widest sepse it may be capable of including the said
concep_t.
Therefore, in clause (2), public order is
virtually synonymous with public peace, safety and
tranquility. The denotation of the said wo,rds cannot
be any wider in clause ( 4).
That is one consideration
which it is necessary to bear in mind.
When clause
(4) .refers to the restriction imposed in the interests of
public order, it is necessary to enquire as to what is
the effect of the words "in the inter!'sts of".
This
clause again cannot be_ interpreted to mean that even
if the connection between the restriction and the
public order is remot,, and indirect, the restriction can
be said to be in the interests of public order.
A restriction can be said to be in the interes1s of public
order only if th~ connection between the restriction
and the public order
is
proximate and direct.
Indirect or far-fetched or unreal connection between
the restriction and public order would not fall within
the purview of the expression "in the interests of
pub.lie order." This interpretation is strengthened
by the other requirement of clause (4) that, by itself,
the restriction ought to be reasonable. It would be
difficult to hold that a
~cstriction which does not
directly relate to public or<lcF can be said to be
reasonable on the ground that its connection with
public order is -remote or far-fetched.
That is another consideration which is relevant.
Therefore,
reading the twd requirements of clause (-J-), it follows
that the impugned restriction can be said to satisfv
the test of clause (4-) only if its connection with public.
order is shown 'to be rationally proximate and direct.
1962
0. K Ghosh
v.
E. /{. Josph
Gajtniragadtar, J
1962
O. K. Ghosh
v.
E. X. Josph
Gajendragadkar, J,
796 SUPREME COURT REPORTS [1963) SUPP.
That is the view taken by this Court in The Superintendent Central, Prison, Fatehgarh v. Dr. Ram
Manohar Lohia, ('). In the words of Patanjali Sastri
.J., in Rex v. Basudev,(') "the connection contemplated
between the restriction and public order must be real
and proximate, not far-fetched or problematical."
It is in the light of this legal position that the validity
of the impugned rule must be determined.
It is not disputed that the fundamental rights
guaranteed by Art. 19 can be claimed by Government servants. Art. 33 which confers power on the
parliament to modify the rights in their application
to the Armed Forces, clearly brings out the fact that
all citizens, including Government servants, are entitled to claim the rights guaranteed by Art. 19. Thus,
the validity of the impugned rule has to be judged
on the basis that the respondent and his co-employees
are entitled to form Associations or Unions. It is
clear that Rule 4-B imposes a restriction on this right.
It virtually compels a Government servant to withdraw his membership of the Service Association of
Government Servants as soon as recognition accorded
to the said Association is withdrawn or if, after the
Association is formed, no recognition is accorded to
it within six months. In other words, the right to
form an Association is conditioned bv the existence
of the recognition of the said Association by the
Government. If the Association obtains the recognition and continues to enjoy it, Government servants
can become members of the said Association ; if the
Association does not secure recognition from
the
Government or recognition granted to it is withdrawn,
Government servants must cease to be the members
of the said Association. That is the plain effect of
the impugned rule. Can this restriction be said to be
in the interests of public order and can it be said ·to
be a reasonable restriction ? In our opinion, the
only answer to these questions would be in the
negative. It is difficult to see any direct or proximate
(1) A.I.R. 1960 S.C. 633.
[1949] s.c.,. 657,661.
1 s.c.R.
SUPREME COURT REPORTS
797
or reasocii.l:lle connection between the recognition by
the Government of the Association and the discipline
amongst, and the efficiency of,_ the ,members of the
said Association. Similariy, it is difficult to see any
connection betw~en recognition and putJlic order.
- . -
A reference to Rule 5· of the Recognition of
Service Association Rules recently made in 1959
would clearly show "that there is no necessary connection between recognition or its withdrawal and public
order. Rule 5· enumerates different conditions by
clauses (a) to (1) which every Service Association
must comply with; and Rule 7 provides that if a
Service Association recognised under the said Rules
has failed to comply with the conditions set out in Rule -
4, 5, or 6, its n;cognition may be withdrawn.
One
of tlie conditions imposed by Rule 5(1) is tha! communications addressed by the Service Association or by
any office bearer on its behalf to the Government or
a Government authority shall not contain any disrespectful or improper language. Similarly, Rule 5(g)
provides that the previous permission of the Government shall be taken before tlie Service Association
seeks affiliation with 'any other Union, Service Association or Federation; and Rule 5 (h) prohibits the
Service Associatioi:i from starting or publishing any
perfodical, magazine or bulletin without the previous
approval of th.e Governmerit. It is not easy to see
any rational, dir_ect or proximate connection between
the observance of these conditions and public order.
Therefore, even without examining the validity of all
the conditions laid down by rule 4, 5 or 6, it is not
difficult to hole\ that the granting or withdrawing or
recognition may 6e based on considerations some of
which have .no connection whatever either with the
efficiency or discipline amongst the Services or with
public order, 'rt might perhaps have been a different
matter ff the recognition or its witqdrawal had been
based on grouqds whi,cq have a direc_t, proximate and
rational connection with public order. That, however
1962
o. K, Ghosh
v.
E. X. Josph
CafendragadJ.ar, J.
1962
0. K. Ghosh
v.
/!.', X. Josph
798 SUPREME COURT REPORTS [1963] SUPP.
cannot be said about each one of the conditions prescribed by rule 4; 5 or 6. Therefore, it is quite possible that recognition may be refused or withdrawn on
grounds which are wholly unconnected with public
order and it is in such a set-up that the right to form
Associations guaranteed by Art. lO(l)(c) is made subject to the rigorous restriction that the Association
in question must secure and continue to enjoy recognition from the Government. We are, therefore,
satisfied that the restriction thus imposed would make
the guaranteed right under Art. 19(l)(c) ineffective
and even illusory. That is why we see no reason to
differ from the conclusion of the High Court that the
impugned Rule 4-B is invalid. In the result, appeal
No. 378/1962 fails and is dismissed.
In regard to appeal No. 379/1962, though
we have partly reversed
the
conclusion of the
High Court in respect . of the validity of the
whole of Rule 4-A, it appears that· the departmental
proceedings initiat.ed against the respondent in respect
of the alleged breach of rule 4-A have to be quashed,
because the alleged contravention of the said Rule on
which the said proceedings are based is contravention
of that part of Rule 4-A which has been held to be
invalid by this Court. The material charge a~ainst
the respondent in that behalf is that he had deliberately contravened the provisions of Rule 4-A in so far
as he has participated actively in the various demons-
•
trations organised in connection with the strike of
Central Government employc~s and took part in the
preparations made for the said strike. It will be
noticed that the result of the decision of this Court in
Kameshwar Prasad' s(') case is that in so far as the
rule prohibits any form of demonstration, it is invalid.
It is not invalid in so far as it may prohibit participation in strikes. . ~he chai:ge against. the respondent
is not that he participated m any strike ; the charge
is that he participated in the various demonstrations ; alld that is a charge based upon that part of
(I) [1962] Supp. s s.c.R. 869.
1 S.C.R.
SUPREME COURT REPORTS
799
the rule which prohibits demonstrations altogether.
It is true that the demonstrations in which he is
alleged to have participated active! y were organised
in connection with the strike ; but that does not mean
either in fact or in law that he participated in the
strike itself.
Similarly, the charge that he took
active part in the preparations made for the said
strike, also does not mean in fact or in law that he
participated in the strike. If he joined demonstrations
organised in connection with the strikes, or if he took
part in the preparations for the strike, it cannot be
said that he took part in the strike as such, and so,
the charge cannot be reasonably construed to mean
that his conduct amounted to a contravention of the
rule which prohibits strikes. Therefore, though Rule
4-A is partly, and not wholly, invalid as held by this
Court in the case of Kameshwar Prasad('), the particular charge against the respondent being on the
basis of that part of the rule which is invalid, it must
follow that the departmental proceedings based on
that charge are also invalid. That is why appeal
No. 379/1962 must be allowed and 1he departmental
proceedings instituted against the respondent for the
alleged contravention by him of rules 4-A and 4-B
must be quashed. There would be no order as to
costs.
A,,peal 378/62 dismissed.
Appeal 379/62 cill<YWed.
(I) (1962] Supp. 3 S.C.R. 369.
1%2
O. K. Gwh
••
E. X. Jos;n