# RADHEY SHY AM SHARMA v. THE POST MASTER GENERAL CENTRAL CIRCLE NAGPUR

- **Citation:** [1964] 7 S.C.R. 403
- **Court:** Supreme Court of India
- **Decided:** 1964-03-23
- **Case number:** Writ Petition No. 208 of 1963
- **Bench:** P. B. Ga, Jendragadkar, K N. Wanchoo, J. c. SHAH, N. Rajagopala Ayyangar Ands. M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/radhey-shy-am-sharma-v-the-post-master-general-central-circle-nagpur-3137
- **Pages:** 7

## Headnote

Fundamental Right-Postal employee taking part in a demonstration in furtherance of the strike-Ordinance prohibiting
strikes in any postal, telegraph or telephone service-Constitutionality 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 wanted 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charge was however withdrawn.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 'Essential Services Maintenance Ordinance, 1960 (1 of 1960)'
prohibiting strikes in any Postal, telegraph or telephone service''.
The enquiry officer found him guilty of the charge and ordered 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 dispute 1t cannot be held that the Ordinance violated the fundamental 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 punishment 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 ronclusion 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

## Text

' .
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 demonstration in furtherance of the strike-Ordinance prohibiting
strikes in any postal, telegraph or telephone service-Constitutionality 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 wanted 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 'Essential Services Maintenance Ordinance, 1960 (1 of 1960)'
prohibiting strikes in any Postal, telegraph or telephone service''.
The enquiry officer found him guilty of the charge and ordered 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 dispute 1t cannot be held that the Ordinance violated the fundamental 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 punishment 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 ronclusion 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 1963Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights.
B. D. Sharma, for the petitioner.
S. V. Gupte, Additional Solicitor-General, S. P. Varma
and R. H. Dhebar, for the respondent.
March 23, 1964. The Judgment of the Court was delivered by
Wanchoo, J.
WANCHOO, J.-This is a petition under Art. 32 of thte Constitution. The petitioner was appointed as a Telegraphist by the
Post Master General Nagpur in 1949. In July 1960, he was
serving as an officiating Teleprinter Supervisor at Jaipur. The
employees of the Posts aμd Telegraphs Department (hereinafter
referred to as the Department) went on strike from the midnight of July I I, 1960 throughout India and there was a similar
strike at Jaipur. The petitioner was on duty on that day from
I 2 noon to 8 p.m. He says that after his duty was over, he did
not go home but went to the dormitory where he fell asleep as
he was tired. At about 11-30 p.m. he woke up on hearing some
noise and discovered tha.t it was very late and then he wanted
to go home. But as he came out, he was arrested by the police
on the ground that he was also one of the demonstrators, who
were, demonstrating outside in connection with the strike. The
arrest was made under the Essential Services Maintenance Ordinance, No. 1 of 1960, (hereinafter referred to as the Ordinance).
On July 13, the petitioner was suspended on the ground that
a criminal charge was pending against him in a criminal court.
..
7 S.C.R.
SUPREME COURT REPORTS
405
However the criminal charge was withdrawn on July 18, 1960.
On July '21, 1960, a charge-sheet was served on the petitioner
in· the full owing terms: -
1961
Radhey Skyam
SllMma
v.
'
"That Shri Radhey Sh yam Sharma I CI S Telegraphist,
CTO Jaipur committed gross misconduct in that
on the midnight of ihe I Ith July 1960, he took
part in a demonstration in flJ!th~ranc_e of the
strike of the P. & T. Employees m v10lauon of the
orders dated 8-7-1960 issued by the Government
of India under the "Essential Services Maintenance Ordinance, 1960 (I of 1960)" prohibiting
strike in any postal, telegraph or telephone Service."
The Postmaster
General Central
Cirde, Nagpur
An inquiry was made in the matter by the Post Master General, Central Services Nagpur to whom it was transferred _as
the petitioner had been appointed by that officer. The enqmry
officer found the petitioner guilty of the charge framed against
him and thereupon a notice was issued to him to show cause
why the penalty of reduction in the time scale by three stages
for a period of two years affecting the future increments be not
imposed upon him. Thereafter the Post Master General after
taking into account the explanation submitted by the petitioner
to the show cause notice ordered that the pay of the petitioner
should be reduced in the lime scale by three stages for a period
of two years and on restoration the period of reduction was
not to operate to postpone his future increments. Thereupon
the petitioner filed an appeal to the Director General, Posts
and Telegraphs. The Director General directed further evidence to be taken on certain lines before deciding the appeal.
However, no further evidence was given on behalf of the Department and the matter was re-submitted to the Director
General as it was Finally, the Director General considered thewhole matter on the merits and rejected the appeal.
The present petition is a sequetto the order of the Director
General, and the petitioner contends that the punishment
imposed upon him is violative of his fundamental rights under
Arts. 19(1)(a) and 19 (I) (b) and should be quashed. Reliance
is placed on his behalf on two cases of this Court in Kameshwar
Prasad v. State of Bihar,(') and 0. K. Ghosh v. E. X. Joseph(').
Further it is contended that ss. 3, 4 and 5 of the Ordinance are
ultra vires, as they contravene sub-clauses .(a) and (b) of Art.
19 (!). Lastly, it is urged that in any case there was no evidence
on which it could be found that the charge against the petitioner had been proved.
(') [1962] Supp. 3 S.C.R. 369.
(') [1963]. Supp. 1 S.C.R. 789.
Wamkoo,J.
1964
Radhey Shyam
/3karma
...
'
The Po!ttaaster
Ge1ural Central
Circle, N <,lgpUr
Wanchoo, J.
406
SUPREME COURT REPORTS
[19641
The petition has been opposed on behalf of the Union of
India and it is urged that the Ordinance is perfectly constitutional and does not violate any fundamental rights. It is further
urged that the two cases relied upon by the petitioner are of
no assistance fo him, as they were concerned with R.4-A and
Rule 4-B of the Central Civil Services (Conduct) Rules, l 955.
Lastly it is urged that there was evidence on which the autho·
. rities concerned could find the charge proved against the petitioner.
The first question that arises is whether ss. 3, 4 and 5 of
the Ordinance are violative of any fundamental rights enshrined in the Constitution. The Ordinance as its name shows
was passed in order that essential services may be maintained.
Its netessity had arisen because of a threat of strike inter alia
by the employees of the Departmentt. Among '·Essential Service" as defined in s. 2 (I) is included the postal, telegraph or
telephone service. Section 3 of the Ordinance provides that
"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". Further upon the issue of such an order no
person employed in any essential service to which the order
relates shall go or remain on strike; and any strike declared
or commenced, whether before or after the issue of the order.
by persons employed in any such service, shall be illegal. Section 4 provides that any person who commences a strike which
is illegal under the Ordinance or goes or remains on or otherwise takes part in, any such strike shall be punished with imprisonment. Section 5 provides that any person who instigates,
or incites other persons to take part in, or otherwise acts in
furtherance of, a strike which is illegal unlier the Ordinance
shall be punishable with imprisonment.
The constitutionality of these sections is attacked on the
ground that they violate.the fundamental rights guaranteed by
els. (a) and (b) of Art. 19 (!). Under cl. (I) (a) all citizens have
the fundamental right to freedom of speech and expression and
under cl. (!) (bl to assemble peaceably and without arms. Reasonable restrictions on these fundamental rights can be placed
under the conditions provided in els. (2) and (3) of Art. 19. We
are of opinion that there is no force in the contentiton tli!at
these provisions of the Ordinance violate the fundamental
rights enshrined in sub-els. (a) and (b) of Art. 19(1). A perusal
of Art. 19(1) shows that there is no fundamental right to strike.
and all that the Ordinance provides is with respect to any
illegal strike as provided in the Ordinance. This aspect has
been elaborately discussed in the Bank Employees' case(') and
it has been held that there is no fundamental right to strike
(') [1962] 3 S.C.R. 269.
r:
7 s.c.n.
SUPREME COURT REPORTS
\
407
1964
(see All India Bank Employees' Association v. National Industrial Tribunal(')). There is no provision in the Ordinan~c
which in any way restricts freedom of speech and expression,
nor is there any provision therein which restricts any one from
assembling peaceably and without arms. The Ordinance .thus
has nothing to do with restricting the fundamental nghts
enshrined in sub-els. (a) and (b) of Art. 19(1), and there 1s
therefore no necessity of even considering whether the provisions of the Ordinance can be justified under els. (2) and
R.aMyShyam
Sharma
•·
The Po•lm.uler ··-
General Central
Circle, Nagpur
1 (3) of Art. 19. It is not disputed that Parliament had the com··
petence to make a law in the terms of the Ordinance and
therefore the President had also the power to promulgate such
an Ordinance. The competence of the legislature therefore
being not in dispute we fail to see how the Ordinance can
violate the fundamental rights guaranteed under sub-els . (a)
and (b) of Art. 19(1) for there is no provision in it which in
any way restricts those fundamental rights.
Learned counsel for the petitioner in this connection
relies on two cases of thi.s Court to which reference has already been made. Kameshwar Prasad's case.(') related to
R. 4'A of the Bihar Government Servants' Conduct Rules. 1956,
which provided that no government servant shall participate
in any demonstration or resort to any form of strike in connection with any ma.tter pertaining to his conditions of service. This Court held in that case that R.4-A insofar as it
prohibited any form of demonstration, be it however innocent
or however incapable of causing a breach of public tranquility
was violative of Arts. 19(1) (a) and 19(1) (b) of the Constitution. This Court also held that insofar as that rule prohibited
a strike it was good. since there was no fundamental right to
resort to strike. In 0. K. Ghosh' s case(') this Court was concerned with r. 4-A and r. 4-B of the Central Civil Services
(Conduct) Rules, 1955, and following the decision in Kameshwar Prasad's case('). 4-A was struck down in part so far as it
related to demonstrations and r. 4-B was also held to be invalid. That case did not deal with the Ordinance at all and
the charge in that case did not seem to have been in the same
terms as the charge in the present case. No argument appears
to have been urged either in the High Court or before this
Court about the validity of the Ordinance or about the validity of the impugned order in rela(\on to the. Ordinance or
the illegal character of the strike. In the circumstances that
case is also of no assistance to the petitioner and there was
n?thing decided .~ere which would in any way' affect the validity of the prov1S1ons of the Ordinance. We are therefore of
opmion that the Ordinance is valid.
I') [1962] 3 S.C.R. 269, 292. (') [1962] Supp. 3 S.C.R. 369.
(') [1963] Supp. I S.C.R. 789.
Wan.c/Joo, J.
1961
Radh•y Shyam
Sharme.
v.
The Pwtmaster
General Gentra~
Circle, Nagpur
Wanclwo, J.
408
SUPREl\IE COURT REPORTS
[1964}
We have already set out the charge framed against the
petitioner. It will be seen that the charge is based entirely on
the Ordinance and has no connection with rr. 4-A and 4-B
which were considered in the Q.K. Glwsh's case('). The petitioner is charged with gross misconduct on the ground
that on the midnight of July 11, 1960, he took part in a demonstration in furtherance of the strike of the employees of
the Department in violation of the order of July 8, 1960. It
is not disputed that on July 8, 1960, the Central Government
had issued an order under s. 3 of the Ordinance prohibiting
any strike in the Department. The strike therefore that started on the midnight of July 11, 1960 was an illegal strike in
view of s. 3 (4)(b) of the Ordinance. Section 5 of the Ordinance provides inter a/ia that any person who acts in furtherance of a strike which is illegal is punishable thereunder.
The charge against the petitioner was that he had acted in
furtherance of the strike which was to commence on the. midnight of July II, 1960 and was therefore guilty of gross misconduct. It is this charge of gross misconduct which has been
found to be proved against the petitioner and which has led
to the punishment inflicted on him. This charge as already
indicated has nothing to do with r. 4-A and r. 4-B and therefore the two cases on which the petitioner relies have no relevance in connection with this charge. The punishment given
to t.he petitioner cannot therefore be set aside on the ground
that the. charge was in violation of the fundamental rights
guaranteed under sub-els. (a) and (b) of Art. 19(1), which deal
wit!). freedom of speech and expression and the right to
assemble peaceably and without arms. The charge does not
deal with these two matters at all. On the other hand it deals
with acting in furtherance of the illegal strike which started
on the midnight of July 11, 1960, and the petitioner was
charged with gross misconduct inasmuch as he acted in furtherance of the illegal strike on July 11, 1960 after the strike
had been prohibited by the Central Government by order
dated July 8, 1962. Whether the "acting" in furtherance of the
strike took the form of speeches or demonstrations would
make no difference. In either case it can be said that there is
a violation of Art. 19 (!) (a).
The only question that remains for consideration therefore is whether the petitioner's contention that there was no
evidence at all on which the authorities concerned could find
the petitioner guilty of the charge is correct. So far as that is
concerned, the authorities had the following undisputed facts
before them: -
(!) The petitioner "was the Secretary of the local union
of the employees of the Department; .
(') [1963] Supp. 1 S.C.R. 789.
•
'1 S.C.R.
SUPREME COURT REPORTS
409
(2) On that day the petitioner's duty finished at ,8 p.m.
and he should have normally gone home; but he
stayed on in the dormitory till 11-30 p.m. which
was just half an hour 'before the strike was to
commence;
(3) The d.emonstration was held in connection with
the strike by the employees of the Department at
11-30 p.m. just half an hour before the strike was
to commence;
(4) The petitioner took part in that demonstration
and was actually arrested amongst the demonstrators.
·
If on these undisputed facts the authorities came to the conclusion 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 cannot in our opinion be said that
there was no evidence on which the authorities concerned
could find the charge framed against the petitioner proved.
The contention therefore that there was no evidence on which
the authorities concerned could find the charge proved must
fail.
We therefore dismiss the petition. In the circumstances
of this case we pass no order as to costs.
Petition dismissed.
1964
RadlV'y ST.ya,.
Sharma
v.
The Postma8ter
Gcnlral Central
Circle, N(;.gpur
Wanchoo, J.