ORDER
W. Broome, J.
1. This writ petition filed by Suraj Pd. Srivastava challenging an order passed by the Divisional Superintendent of the Northern Railway, Lucknow, on 6-2-1961, dismissing him from railway service on the conclusion of a departmental inquiry. The petitioner was employed as a school teacher in the Loco-shed at Faizabad and had incidentally been elected to the post of the Divisional Treasurer of the Lucknow Division branch of the Northern Railway Men’s Union. Departmental proceedings were taken against him on account of the part played by him in organising the threatened railway servants, strike in July 1960. The charges found proved against him in the inquiry have set forth in the dismissal order (Annexure J.) and are as follows:–
“(i) At Faizabad Loco Shed on 4-7-1960 you addressed a gate meeting criticising the Government for not negotiating with the leaders of employees and urged the employees to go on strike from 11-7-1960.
(ii) At Faizabad on 7-7-1960 you were prominent in organising a procession of employees in favour of the strike by the Central Government employees to commence from the midnight of 11/12-7-1960 and raised objectionable and abusive slogans of the following nature :–
(a) ‘Pandit Nehru Hai Hai’
(b) ‘Roti kapra de na sake woh sarkar nikammi hai’. Jo Sarkar nikammi had woh sarkar badlni hai.”
Mr. Krishna Pal Singh, appearing for the petitioner lays stress on the fact that the strike in question was not prohibited by Government until an order under Section 3 of the Essential Services Maintenance Ordinance 1960 was published in the Official Gazette on 8-7-1960; and he argues that since the acts alleged to have been committed by the petitioner, on the basis of which he has been awarded the punishment of dismissal, were committed either on 4-7-1960 or on 7-7-1960, he cannot be said to have been guilty of any misconduct, because at that time there was no order in force that rendered the proposed strike illegal.
2. Mr. Jagdish Swarup, appearing for the railway authorities, argues on the other hand that even though the acts in question were committed by the petitioner before the strike had been prohibited by the Government Order of 8-7-1960, they nevertheless amounted to an infringement of Rules 3 and 6(1) of the Railway Services (Conduct) Rules 1956 and constituted ‘gross misconduct’ justifying dismissal from service under Rule 1706 of the Indian Railway Establishment Code. The relevant rules run as follows:–
‘(3) General–Every railway servant shall at all times maintain, absolute integrity and devotion to duty,
(6) Criticism of Government–No railway servant shall, in any radio broadcast or in any document published anonymously or in his own name, or in the name of any other person, or in any communication to the Press, or in any public utterance make any statement of fact or opinion (i) which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government.
3. In the course of arguments Mr Jagdish Swarup conceded that Rule 6(1) was unconstitutional, being an unreasonable restriction on the right to freedom of speech and expression guaranteed to all Indian citizens by Article 19(1)(a) of the Constitution. Furthermore, the particular slogans on which the charge under Rule 6(1) is based are extremely vague and unspecific and can hardly be Said to amount to “adverse criticism of any current or recent policy or action” of Government.
4. All that we are left with therefore is the question of whether the petitioner’s action in urging railway employees to join the general strike and organising a procession in favour of that strike would infringe Rule 3 of the Railway Services (Conduct) Rules. Mr. Jagdish Swarup contends that the “devotion to duty” required by this rule precludes a railway servant from going on strike or inciting other railway servants to go on strike. In this connection he has relied on the dictum of the Supreme Court in Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166 that there is no fundamental right to resort to a strike. But neither is there anything inherently illegal in a strike; and Mr. Jagdish Swarup has not been able to show me any specific provision in any statute or rule that would prohibit strikes by railway employees. Indeed, Section 22 of the Industrial Disputes Act 1947 clearly envisages strikes by persons employed in a “public utility service and the railway service has been included in the definition of “public utility service” given in Section 2(n) of the Act.
It has been urged that the petitioner is not a workman as defined under the Industrial Disputes Act and is therefore not entitled to claim the benefit of its provisions: but the fact remains that the overwhelming majority of railway employees would be covered by the Act and consequently Rule 3 of the Railway Services (Conduct) Rules cannot possibly be construed as precluding railway servants from resorting to strikes (subject of course to such restrictions as have been imposed by Section 22 of the Act.) The strike that the petitioner was helping to organise seems to have been timed to begin on the expiry of the period of notice required by law and there is nothing to suggest that that strike was in any way illegal until 8-7-1960, when it was banned by the order promulgated by the Government under the Essential Services Maintenance Ordinance. On 4-7-1960, when the petitioner incited his
fellow employees to go on strike, and on 7-7-1960, when he organised the procession in favour of the strike, that strike was not illegal; and I am unable to accept the contention of Mr. Jagdish Swarup that the acts performed by the petitioner on those dates amounted to any deviation from the “devotion to duty,” required by Rule 3 of the Railway Services (Conduct) Rules.
As laid down by the Supreme Court in Kameshwar Prasad’s case AIR 1962 SG 1166 (supra), peaceful and orderly demonstrations intended to convey to the employer the feelings of the employees would fall within the freedoms guaranteed under Clauses (a) and (b) of Article 19(1) of the Constitution; and consequently the petitioner and other railway employees were fully entitled to hold meetings and organise processions in furtherance of their proposed strike on 4-7-1960 and 7-7-1960 (before the ban was introduced by the order promulgated under the Essential Services Maintenance Ordinance on 8-7-1960), without thereby being guilty of any dereliction of duty or any infringement of Rule 3 of the Railway Services (Conduct) Rules.
5. I am satisfied therefore that the petitioner cannot be said to have committed any breach either of Rule 3 or Rule 6(1) of the Railway Services (Conduct) Rules. It follows that he could not be held guilty of ‘gross misconduct’ (or indeed of any misconduct) and his dismissal was clearly illegal.
6. Mr. Jagdish Swarup has attempted, to argue that even if the petitioner’s dismissal is found to violate the departmental Rules applicable to railway employees, he Still cannot claim any redress from this Court, because under Article 310 of the Constitution he must be deemed to hold office ‘during the pleasure of the President.’ In this, connection reliance is placed on the decision of a learned’ single Judge of this Court in Jagannath Singh v. Assistant Excise Commissioner; AIR 1959 All, 771, in which it was held that on account of the provisions of Article 310, the mere breach of statutory departmental rules would not be sufficient to vitiate an order for the dismissal of a Government servant and only a contravention of Article 311 would entitle a dismissed Government servant to seek redress from the courts. But in view of the subsequent pronouncements of the Supreme Court, that decision can no longer be accepted as enunciating correct law.
The legal position of Government servants
with reference to Article 310 of the Constitution has been elaborately discussed in State of
U.P v. Babu Ram Upadhaya AIR 1961 S.C,
751, in which it has been laid down. Inter
alia that though every member of a public service described in Article 310 holds office during the pleasure of the President or tile Governor as the case may be the power to
dismiss a public servant at pleasure is outside
the scope of Article 154 and therefore cannot
be delegated by the President or Governor to
subordinate officer: The majority judgment in
that case observes:–
“A law made by the appropriate Legislature or the rules made by the President or the Governor, as the case may be, under the said Article (i.e. Article 309) may confer a power on a particular authority to remove a public servant from service; but the conferment of such a power does not amount to a delegation of the Governor’s pleasure. Whatever the said authority does is by virtue of express powers conferred oh it by a statute or rules made by competent authorities and not by virtue of any delegation, by the Governor of his power.”
In the present case the order dismissing the petitioner has been passed by an officer empowered to pass such an order under the Rules incorporated in the Railway Establishment Code and his order must be in accordance with those Rules. He could not dismiss the petitioner in exercise of the power to dismiss a public servant at pleasure, since that is a power that resides only in the President or Governor under Article 310 and cannot be delegated. Article 310 is thus totally irrelevant for the purposes of the present petition and cannot be treated as creating any bar to the issue of a writ quashing the dismissal order passed by the Divisional Superintendent. In this connection it may be noted that in State of Mysore v. M.H. Bellary, AIR 1965 S.C. 868 the Supreme Court, relying on the earlier decision in Babu Ram Upadhaya’s case AIR 1961 S.C. 751 has specifically laid down that if there is the breach of a statutory rule relating to conditions of service, the aggrieved Government servant can have recourse to the Court for redress.
7. This writ petition must therefore succeed. The petitioner could be dismissed from
service by the Divisional Superintendent only
in the circumstances enumerated in rule 1706
of the Railway Establishment Code, which include ‘serious misconduct’; but as pointed out
above, the acts complained of which form the
subject matter of the charges that have been
held proved against him, cannot possibly be
construed as amounting to “serious misconduct’.
This petition is accordingly allowed with costs,
the impugned order of 6-2-1961 being quashed.
