IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14..09..2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU W.P.No.17677 of 2001 M.Mani ... Petitioner -Versus- Tamil Nadu Civil Supplies Corporation Limited, Rep. by its Chairman-cum-Managing Director, No.42, Thambuswamy Road, Kilpauk, Madras 600 010 ... Respondent Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Declaration, declaring Regulations 10 and 11 under Chapter VII of the Tamil Nadu Civil Supplies Corporation Limited Employees' Service Regulations 1989, ultra vires, as offending Articles 19(1)(a) and (c) and Article 14 of the Constitution of India. For petitioner : Mr.V.Prakash, Senior Counsel For respondent (s): Mr.P.S.Raman, Advocate General Assisted by Mr.C.Selvaraj ORDER
In a democracy, the people are the masters and they are entitled to have their own thoughts and views untrammelled by any barrier. If only they are allowed to think freely and to formulate their ideologies, the democracy will progress. As one of the largest democracies in the World, after having debated for more than two years, we have given to ourselves the Constitution which aims to secure to all its citizens, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity; and to promote among them all, fraternity assuring the dignity of the individual and the unity and integrity of the nation as propounded in the Preamble of the Constitution. Some of these rights are guaranteed in the shape of fundamental rights by the constitution. Article 19(1)(a) of the Constitution declares that all citizens shall have the right to freedom of speech and expression; Article 19(1)(c) of the Constitution declares that they shall have the right to form associations or unions; and Article 14 of the Constitution declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Relying on these three cherished fundamental rights enshrined in the Constitution, the petitioner, who is an employee of the Tamil Nadu Civil Supplies Corporation Limited, a State owned Corporation, has come up with this writ petition, challenging Regulation 10 of Chapter VII of the Tamil Nadu Civil Supplies Corporation Limited Employees’ Service Regulations 1989 which states that no employee shall be a member or shall associate himself with any political organisation or party. The challenge to regulation 11 has been given up by the counsel for the petitioner during the course of arguments. The regulation 10, according to the petitioner, offends the fundamental rights guaranteed under Articles 19 (1) (a) , 19 (1) (c) and 14 of the Constitution.
2. It is contended by the petitioner that right under Article 19(1)(c) to form an association or union will include the right to be a member of a political organisation as well. Being such a member of a political organisation is also a part of freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution. Such fundamental rights of the citizens are integral part of the citizenship itself and, therefore, there can be no law or regulation which can curtail or reduce the fundamental rights in any manner, unless it is protected by the reasonable restriction clause contained in Article 19(2) and 19 (4) of the Constitution. Having a political ideology and to be a member of a political party which advances the causes of the said ideology itself is a fundamental right. Prohibiting an employee from being a member of a political party will tantamount to making him a non citizen. A citizen cannot be deprived of such right to be a member of a political party simply because he happens to be an employee of the civil supplies corporation. If we deprive him of his political ideology and his political affiliation, we will, by implication, make him a non citizen. This cannot be recognised in any democratic set up, he contended. The impugned regulation further lacks proper classification as it makes every employee from the level of the Managing Director to the level of the Office Assistants as one class thereby preventing every one of them from being a member of a political party which is highly arbitrary and violative of Article 14 of the Constitution. The restriction imposed by the impugned regulation would not in any manner advance public order as envisaged in Article 19 (2) of the Constitution so as to bring the same within the ambit of reasonable restriction and to protect the same from the vice of unconstitutionality. With these broad contentions, the petitioner is before this Court.
3. The learned senior counsel Mr.V.Prakash would trace the earliest judgement of a Constitution Bench of the Hon’ble Supreme Court on this question in P.Balakotaiah and others v. Union of India, AIR 1958 SC 232 wherein Rules 3, 4, 5 and 7 of the Railway Services (Safeguarding of National Security) Rules, 1949 came up for consideration. Rule 3 of the said Rules envisages that a member of the railway service who, in the opinion of the competent authority is engaged in or is reasonably suspected to be engaged in subversive activities, or is associated with others in subversive activities in such manner as to raise doubts about his reliability, may be compulsorily retired from service, or have his service terminated by the competent authority after he has been given due notice or pay in lieu of such notice in accordance with the terms of his service agreement. Based on the above rules, on the ground that the employee therein had associated himself with communist party, charges were framed against the petitioner therein alleging that his involvement in political activities amounts to subversive activities and, therefore, he was liable for punishment. When similar grounds were raised seeking umbrage under Article 19 (1)(c) of the Constitution, the Hon’ble Supreme Court has held as follows:-
“(17(IIb). It is next contended that the impugned orders are in contravention of Art.19(1)(c), and are therefore void. The argument is that action has been taken against the appellants under the rules, because they are Communists and trade unionists, and the orders terminating their services under R.3 amount, in substance, to a denial to them of the freedom to form association, which is guaranteed under Art.19(1)(c). We have already observed that that is not the true scope of the charges. But apart from that, we do not see how any right of the appellants under Art.19(1)(c) has been infringed. The orders do not prevent them from continuing to be Communists or trade unionists. Their rights in that behalf remain after the impugned orders precisely what they were before. The real complaint of the appellants is that their services have been terminated; but that involves, apart from Art.311, no infringement of any of their Constitutional rights. The appellants have no doubt a fundamental right to form associations under Article 19 (1) (c), but they have no fundamental right to be continued in employment by the State, and when their services are terminated by the State they cannot complain of the infringement of any of their Constitutional rights, when no question of violation of Article 311 arises. This contention of the appellants must also be rejected.”
4. Relying on the above judgment, the learned senior counsel Mr.V.Prakash would submit that this judgement should not be misunderstood as though the Hon’ble Supreme Court was of the view that the total ban imposed on the Government servants to participate in political activities does not in any manner infringe Article 19 (1) (c) of the Constitution. In my considered opinion, this judgment may not be helpful to the petitioner since in that case, the constitutionality of the relevant rule was not put under challenge but only the consequential proceeding alone was under challenge.
5. Subsequently, in Kameshwar Prasad v. State of Bihar, reported in AIR 1962 SC 1166, the Bihar Government Servants’ Conduct Rules, 1956 which prohibits a Government servant from participating in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service came up for consideration. Before the Constitution Bench of the Hon’ble Supreme Court, the earlier Judgement in Balakotaiah’s case was cited to substantiate the contention of the Government that the rule was not in any manner ultra vires the Constitution of India. It was also argued before the Constitution Bench that the Government servants, as a class, cannot be excluded from the protection of the rights guaranteed by several Articles in Part III of the Constitution of India. Having considered the said contention, after referring to Article 33 of the Constitution, the Hon’ble Supreme Court has held as follows:-
“12. …. The Article having thus selected the Services members of which might be deprived of the benefit of the fundamental rights guaranteed to other persons and citizens and also having prescribed the limits within which such restrictions or abrogation might take place, we consider that other classes of servants of Government in common with other persons and other citizens of the country cannot be excluded from the protection of the rights guaranteed by Part III by reason merely of their being Government servants and the nature and incidents of the duties which they have to discharge in that capacity might necessarily involve restrictions of certain freedoms as we have pointed out in relation to Article 19 (1)(e) and (g). ……”
6. Thus, the Constitution Bench has settled the law at rest by declaring that certain restrictions on the freedoms guaranteed under Section 19 of the Constitution could be imposed on the Government servants, going by the nature and the incidents of the duties which they have to discharge in their capacity as Government Servants. The Hon’ble Supreme Court finally held that Rule 4-A which prohibits ‘any form of demonstrations’ is violative of appellants’ rights under Article 19 (1) (a) and (b) of the Constitution. The Hon’ble Supreme Court has, however, held that the rule insofar as it prohibits a strike cannot be struck down since there is no fundamental right to resort to a strike. The said conclusion was later approved by another Constitution Bench of the Hon’ble Supreme Court in O.K.Ghosh vs. E.X.Joseph, reported in AIR 1963 SC 812.
7. A close reading of the above judgements would make one to clearly understand that the Government servants cannot form a separate class so as to deprive them of the fundamental rights guaranteed under Article 19 of the Constitution of India as it has been done in the case of the members of the the Armed Forces and other services enumerated in Article 33 of the Constitution of India. However, there can be reasonable restriction on the said rights.
8. The learned senior counsel Mr.V.Prakash would submit that if once it is held that the Government servants cannot be classified as a separate class by themselves, then, it follows that they should not be deprived of their fundamental rights to be members of any political organisation or to associate themselves with any political organisation or party. The rule, which is under challenge in the instant case, completely prohibits the Government servants by making them as a class from having any political affiliation. This is an absolute curtailment of fundamental rights and, therefore, it cannot pass the test of reasonableness, he contended. Of course, it is true that there cannot be a total curtailment of the fundamental rights. As it has been repeatedly held by the Hon’ble Supreme Court, there can only be certain restrictions as in=built in Article 19 itself and the said restrictions should also be reasonable.
9. The learned senior counsel would rely on yet another judgement of the Hon’ble Supreme Court in Ravindra Kumar Dutta v. Union of India, reported in (1986) 3 SCC 587, wherein Rule 5 of the Central Civil Services (Conduct) Rules, 1964 which imposes a total ban on Government servants from participation in any form of political activities came up for consideration. At this juncture, it should be recalled that in the earlier three judgements of the Constitution Benches of the Hon’ble Supreme Court, the question whether the Government servants can be banned from participating in any form of political activities did not directly come up for consideration. In the first case, the relevant rule was not challenged and in the latter two cases, the rule which was under challenge had nothing to do with the political activities of Government servants. Therefore, those three judgements have got nothing to say elaborately about the ban on the Government servants from participation in political activities. Precisely, the said question came up for consideration only in Ravindra Kumar Dutta’s case cited supra. A Division Bench which heard the case felt that the said question is of great importance and, therefore, the said question needs to be examined by a Constitution Bench and accordingly it referred it to the Hon’ble Chief Justice for constituting a Constitution Bench. The said judgement reads as follows:-
” The question raised is of great importance and the acceptance of the contention may lead to complete revision of the accepted Civil Service Philosophy. We thing it is desirable that these matters should be heard by a Constitution Bench. The Registry will seek appropriate directions from the Hon’ble Chief Justice.”
10. The Constitution Bench, to which Ravindra Kumar Dutta’s case was referred, by order dated 08.07.1996 held that in view of the long lapse of time, the individual notices issued to each one of the petitioners had outlived their utility and the cases had become stale. Thus the Constitution Bench had no occasion to answer the question referred to the same. Subsequently in K.L.Rinwa v. Kurukshetra University, reported in (2002) 10 SCC 135, a question as to whether a teacher while in service is entitled to contest an election without resigning before the date of filing nomination and thereafter to come back and work as a teacher came up for consideration before the Hon’ble Supreme Court. In para 2 of the said judgement, the Hon’ble Supreme Court has held as follows:-
“The question involved in this case is: Whether a teacher, while in service, is entitled to contest election without resigning before the date of filing the nomination and thereafter to come back and work as a teacher. When the matter was referred, on similar question, to the Constitution Bench, the Constitution Bench in Writ Petition (C) No.393 of 1972 and batch of writ petition titled as Ravindra Kumar Dutta v Union of India by order dated 08.07.1996 held that in view of the long lapse of time, the individual notices issued to each one of the petitioners had outlived their utility and the cases had become stale. The question whether the activities amount to political activities in terms of Rule 5 of the Rules was left open. However, liberty was given to the employer to take appropriate action against the employees indulging in political activities in accordance with law.”
11. Thus, though the Hon’ble Supreme Court at one point of time in Ravindra Kumar Dutta’s case felt that the question whether the service rule which imposes a ban on Government servants from participation in any form of political activity was of great importance, the Hon’ble Supreme Court had no occasion to go into the said question and to declare the law as to whether the said service rule which imposes such complete ban will be violative of Articles 19 and 14 of the Constitution of India or not.
12. The learned Advocate General would, however, rely on two judgements, one from this Court and the other from the Andhra Pradesh High Court wherein the above question has been answered. In P.N.Rangaswamy v. The Commissioner of Coimbatore Municipality, reported in AIR 1968 Madras 387, the challenge was to Rule 14 of the Madras Personal Conduct of Officers and Servants of Municipal Councils Rules which imposes such ban on the officers and servants of Municipal Councils from taking part in any political movement or assisting the same. It would be worthwhile to extract the said rule which reads thus:-
“14. Taking part in politics: Subject to any general or special order of the Government, no officer or servant of a Municipal Council shall take part in subscribe in aid of, or assist in any way, any political movement in India, or relating to Indian affairs. When there is room for doubt whether any action which an officer or servant proposes to take will contravene this rule, he should refer the matter to the Government through the executive authority.
Note: Subversive activities or the expression of disloyal sentiments by an officer or servant will be regarded as sufficient ground for dispensing with this services”.
13. A learned single Judge of this Court, after having elaborately dealt with the said restriction in the light of the judgements in Kameshwar Prasad v. State of Bihar – AIR 1962 SC 1166 and O.K.Ghosh v. E.X.Joseph – AIR 1963 SC 812, held as follows:-
“The decision cited by the learned counsel for the petitioner in this context, Kameswar Prasad v. State of Bihar, AIR 1962 SC 1166, dealing with the right of a Government servant to take part in peaceful demonstration, but not strikes in the context of Rule 4(1) of the Bihar Government Servants Conduct Rules and O.K.Ghosh v. E.X.Joseph, AIR 1963 SC 812, dealing with a similar right in the context of Rule 4-A of the Central Civil Service (Conduct Rules, 1955, were concerned with this aspect of the matter, i.e., freedom of speech and expression, freedom to assemble peacefully and freedom to form association under the appropriate sub-divisions of Art. 19 (1) of the Constitution. But taking active part in politics as specified in Rule 14, like taking part in subscribing in aid of or assisting in any way, any political movement in India must be viewed as an objectionable conduct on the part of a Government servant harmful to good discipline and efficiency of service and should not be confused with the several freedoms mentioned in Art. 19 of the Constitution. ………..”
14. In G.M.N.V.Prasad Rao v. Managing Director, A.P.S.R.T.C., reported in 1989 (5) SLR 558, the Conduct Regulation of Andhra Pradesh State Road Transport Corporation (APSRTC) Employees which imposes such ban on the employees to participate in the political activities came up for consideration. His Lordship Mr.Justice K.Ramaswamy [ as he then was who latter became a Judge of the Hon’ble Supreme court and a party to the judgement in K.L.Rinwa case cited supra] has held thus:-
“5. …… Therefore, prohibition is a reasonable restriction and a valid classification of the entire class of the employees of the Corporation. Therefore,
it is not violative of either Article 14 of the Constitution or ultra vires of the power of the Corporation. It is not necessary that the Act itself should provide such a prohibition. Since the power has been conferred expressly to prescribe conditions of the service of the employees under Section 45 of the Act, Regulation 23 of the Conduct Regulations being part of the Statutory Rule is perfectly within the power of the Corporation and is valid. Accordingly, I hold that Regulation 23 (1) of the Conduct Regulations is not ultra vires of the power of the Corporation and it does not offend the right to equality or Political Justice enshrined in the Preamble to the Constitution.”
15. A deep reading of the above judgements of the Hon’ble Supreme Court as well as the Andhra Pradesh High Court and this Court would clearly go to show that the prohibition imposed upon the Government/Corporation employees to participate in political activities itself is only a reasonable restriction in the interest of maintaining discipline among the employees and for proper discharge of their duties and the same cannot be stated to be unreasonable so as to hold the same ultra vires the Constitution. It neither offends
Article 14 nor Article 19 of the Constitution. As held by the Hon’ble Supreme Court in P.Balakotaiah’s case cited supra, it is for the employee of the respondent Corporation to decide whether to get out of the restriction imposed on his fundamental rights under the service regulations so as to enjoy absolute freedom to participate in political activities by going out of service or to subject himself to the reasonable restriction imposed on his fundamental rights and to continue in the Government service. Before entering into the service since there is no restriction on his fundamental rights, he could have very actively involved himself in politics. However, having chosen to become a servant of the Government/Corporation, he cannot continue to have such political activities as it would not be in the interest of the discipline or proper discharge of their duties attached to the service. These restrictions are, thus, absolutely essential for proper and efficient administration of the corporation. Therefore, the impugned regulation which imposes ban on the employees of the Corporation from taking part in political activities is only a reasonable restriction and so the same cannot be held to be ultra vires the Constitution.
16.In this context, I may say that being in politics is not a sin but it is in the interest of the nation. Ours is a democratic country, where the Government is formed on the mandate of the people and the said mandate is on political party basis. The country
needs pure politics i.e., free from corruption, exploitation, nepotism, etc. If only, the political scenario in our country is pure, thinking of the people will also be pure so that they can exercise their franchise freely to elect their representatives uninfluenced by any agency. If the political scenario in the country suffers from any one or more of these vices, it would pave way for corrupt politicians coming to the helm of affairs to lead the Government. The father of our nation, the great Mahatma, preached and lived for purity in public life. Most of our national leaders have been fighting for the same all these years. Of course, here and there, there are certain aberrations. In order to preserve the glory of this great nation, the politics in this country needs younger generation to actively participate with a mission to clean the politics so as to maintain purity in public life and to establish a clean Government. That is why our national leaders do make fervent calls to the younger generation to actively participate in politics. Responding to such calls given by our national leaders, the younger generation is bound to be naturally attracted towards politics. Such participation in politics should be welcomed and the same should not be discouraged at any cost. But, at the same time, they cannot be deprived from seeking employment in public offices on the ground they were embracing politics before. Such employment itself is a service to the nation.
17. In this regard, I may refer to the judgment of the Hon’ble Supreme Court in State of Madhya Pradesh v. Ramashanker Raghuvanshi, reported in (1983) 2 SCC 145, wherein the Hon’ble Supreme Court in para 10 has held as follows:-
“10. We are not for a moment suggesting that even after entry into government service, a person may engage himself in political activities. All that we say is that he cannot be turned back at the very threshold on the ground of his past political activities. Once he becomes a government servant, he becomes subject to the various rules regulating his conduct and his activities must naturally be subject to all rules made in conformity with the Constitution.”
18. Thus, before entering into any service, if a particular candidate had been in politics that cannot be a ground to deprive him of employment in Government Service, but at the same time, having once become such a Government servant, it is for him to enjoy the fundamental rights guaranteed under Articles 19(1) (a) and (c) of the Constitution subject to the restrictions imposed on the same by the service regulations. If he chooses to serve the nation by being a member of a party in politics, freely he can do so without continuing as a Government servant. On the other hand, if he chooses to serve the nation as a Government servant, he has to forego his involvement in politics. The ball is in his court. Thus, the impugned clause in the respondent Corporation Service Regulations is not unconstitutional.
19. In view of the above, the writ petition fails and the same is accordingly dismissed. No costs.
Index : yes 14 ..09..2010 Internet : yes kmk To The Chairman-cum-Managing Director, Tamil Nadu Civil Supplies Corporation Limited, No.42, Thambuswamy Road, Kilpauk, Madras 600 010 S.NAGAMUTHU. J., kmk Order in W.P.No.17677 of 2001 14..09..2010