THE ANALOGY OF STRIKE IN INDUSTRIAL JURISPRUDENCE : PART-VIII

SOME REFLECTIONS IN INDUSTRIAL AND SERVICE JURISPRUDENCE : THE ANALOGY OF " STRIKE " : IS IT A LEGAL, FUNDAMENTAL OR CONSTITUTIONAL RIGHT IN THE LIGHT OF ARTICLE 19 (1) (c) OF THE CONSTITUTION OF INDIA : PART – VIII 

AJAYA KUMAR SAMANTARAY,CENTRAL LABOUR SERVICE

PRELUDE : In this case, the workman was a railway employee and also a trade union leader. He was proceeded against departmentally and issued with a charge-sheet for interfering with the machinery of Railway Administration and also for defying the order of the General Manager. On completion of enquiry he was found guilty of the charges levelled against him and was removed from service. The delinquent approached the High Court where he was successful. The employer filed a writ appeal which was dismissed. Against the judgment and order of the Division Bench, Railway Board moved the Hon'ble Supreme Court.This case-law gives us an insight about the Extent of trade Union Rights and scope of Article 19 (1).Let us see as to how the case was dealt with by the Hon'ble Supreme Court. 

THE CASE-LAW :

RAILWAY BOARD, REPRESENTING THE UNION OF INDIA vrs NIRANJAN SINGH [AIR 1969 SC 966 = 1969 (18) FLR 300 = 1969 Lab IC 1368 = 1969-II-LLJ-743 = (1969) 1 SCC 502 = [1969] 3 SCR 548] DoJ : 4 FEBRUARY 1969

FACTS OF THE CASE :

      One, Shri Niranjan Singh,the respondent in this case, was permanent employee in Northern Railway. He was a Trade Union worker. It so happened that on November 7, 1956 a charge-sheet was served on him .The charges leveled against him were as follows:

The First Charge : He was accused of having been instrumental in compelling the air compressor being shut down at about 8.15 a.m. on May 31, 1956.

The Second Charge : He was accused of having contravened the direction given by the General Manager, Northern Railway as per his letter No. 961/E/O(Evi) dated June 19, 1956 by addressing meetings with in the railway premises on June 23, 1956, June 25, 1956, July 24, 1956, July 25, 1956 and July 27, 1956.

      On the above charges he was called upon to show-cause why he should not be removed from service under Rule 1708 of the Indian Railway Establishment Code Vol. 1 or punished with any lesser penalties specified in Rule 1702. After receiving his explanation an enquiry committee consisting of three officers was appointed to enquire into the charges. The said committee came to the conclusion that the first charge was not proved beyond all reasonable doubt but he was guilty of the second charge. The Disciplinary Authority i.e. the General Manager remitted the case back to the enquiry committee for submitting a fresh report after examining the witnesses mentioned in his order. Even after examining those witnesses the enquiry committee adhered to its earlier conclusions. After examining the reports of the enquiry committee, the General Manager as per his order of May 25, 1957 accepted its finding on the second charge but differing from its conclusion on the first charge, tentatively came to the conclusion that the respondent was guilty of that charge as well. As a result thereof he ordered the issue of a notice to the delinquent to show cause as to why he should not be removed from service. The respondent submitted his explanation to the show cause notice. The General Manager did not accept his explanation and by his order of August 20, 1957 he directed that the respondent be removed from service.

WRIT PETITION TO THE HIGH COURT :

      The delinquent challenged that decision before the High Court of Punjab by means of a writ petition under Art. 226 of the Constitution. The learned single judge of the High Court who heard the petition opined that the General Manager was not right in holding on the material on record that the first charge is established and on the second charge he held that the General Manager's direction as per his letter of June 19, 1956 is void as being violative of Art. 19(1) of the Constitution.

WRIT APPEAL BY THE EMPLOYER :

On appeal the appellate court upheld the conclusion of the learned single judge on the first charge but it was unable to accept his finding that the order of the General Manager of June 19, 1956 was violative of Art. 19 (1) of the Constitution. All the same, it affirmed the decision of the learned single judge with these observations:

 "It is by now a generally recognised principle that where an order such as an order of detention or removal from service is based on a number of grounds, and one or more of these grounds disappear it becomes difficult to uphold the order when it is not clear to what extent it was based on the ground found to be bad."

APPEAL TO THE SUPREME COURT :

      Having felt aggrieved by the orders of both the learned single Judge and also the Division Bench, the Railway Administration filed a Civil Appeal bearing No. 1206 of 1966 wherein it challenged the findings of the learned single judge as well as the Division Bench.

It was urged on behalf of Railway Administration as follows:

 (i) that the finding of the General Manager on the first charge being a finding of fact, the same not having been held either not supported by any evidence. or as perverse, it was not open to the High Court to review the evidence afresh and come to a conclusion of its own.

(ii) that the opinion of the Appellate Court that if one of the several charges on the basis of which a punishment is imposed is held to be unsustainable, the punishment imposed should be set aside as it is not known whether the authority in question would have imposed the impugned punishment without that charge having been established, does not represent the correct legal position as expounded by the Apex Court.

Counter submission on behalf of Respondent :

       The Counsel for the respondent not only supported the conclusions of the appellate court, he also strongly commended for the acceptance of the Apex Court the finding of the learned single judge that General Manager's direction contained in his letter of June 19, 1956 was violative of Art. 19 (1) (a) to (c).

APPRECIATION OF RIVAL CONTENTIONS :

      On appreciating the rival contentions, the Hon’ble Apex Court stated, the questions that arise for decision in this appeal are :

(1) whether the High Court was within its jurisdiction in the exercise of its powers under Art. 226 of the Constitution to set aside the conclusion reached by the General Manager on the first charge,

(2) whether the direction issued by the General Manager on June 19, 1956 is violative of Art. 19(1) a to (c) and

(3) whether the appellate court was right in its view that if an order of removal is based on number of grounds and one or more of those grounds are found to be unsustainable, the order is liable to be struck down.

THE ADJUDCATION :

       Coming to the first charge, the Hon’ble Apex Court stated, it may first set out the undisputed facts. On May 31, 1956, the Union of which the respondent was the Vice President declared a token strike. The strike in question was declared by the respondent and he took a leading part in it. During the time of the strike the compressor was not worked. The enquiry committee came to the conclusion and that conclusion was neither challenged before the High Court nor before the Apex Court that the compressor driver must have started the compressor in the East Compressor House at 8.00 hrs. and there must have been certain circumstances which made the driver to shut it off at 8.15 hrs. The only question for decision is whether the respondent was responsible for shutting it off ? Two witnesses namely Subrati, the compressor Driver and Rameshwar, his Assistant emphatically stated before the enquiry committee that it was the respondent who led a group of strikers and compelled them to close down the compressor. The enquiry committee felt that their evidence cannot be accepted at its face value as they were not able to name any other person in the group. But the General Manager did not agree with the enquiry on that point. He fully accepted their evidence. It was open to the General Manager to do so. He was not bound by the conclusions reached by the enquiry committee [Ref : Union of India vrs. H. C. Goel, AIR 1964 SC 364 : [1964] 4 SCR 718 ] . This is not a case where it can be said that the finding of the Disciplinary Authority is not supported by any evidence nor can it be said that no reasonable person could have reached such a finding. Hence the conclusion reached by the Disciplinary Authority should prevail and the High Court in the exercise of its Certiorari jurisdiction could not have interfered with its conclusion [ Ref : Syed Yakoob vrs. K. S. Radhakrishnan and Ors, [1964] 5 S.C.R. 64. ]

      It was next contended that in arriving at his conclusion on the first charge the General Manager had relied on the hearsay evidence given by De Mellow and hence his conclusion is vitiated. The evidence of the witnesses examined during the enquiry was not before the Apex Court. Hence it was not possible to accept the contention that De Mellow's evidence was hearsay. In this view it is not necessary to go into the question whether hearsay evidence can be relied on at all in an enquiry under Art. 311 and if so within what limits. Some of the inferences drawn by the General Manager were objected to by the learned Counsel for the respondent. They appear to be inferences of fact, evidently drawn from the material before him and as such cannot be properly objected to. It Was open to him to draw those inferences.

      For the reasons mentioned above, the Hon’ble Apex Court held that the High Court exceeded its powers in interfering with the finding of the General Manager on the first charge.

      Point No.3 : The Hpn’ble Apex Court stated that before it takes up for consideration point No. 2 formulated above, it would be convenient to deal with point No. 3. It was not disputed before the Hon’ble Court  that the first charge levelled against the respondent is a serious charge and it would have been appropriate for the General Manager to remove the respondent from service on the basis of his finding on that charge. But the Hon’ble Court was told by the Respondent that it cannot assume that the General Manager would have inflicted that punishment solely on the basis of that charge and consequently it cannot sustain the punishment imposed if it is held that one of the two charges on the basis of which it was imposed is unsustainable. The Hon’ble Court stated that this contention cannot be accepted in view of the decision of the same Court in State of Orissa vrs. Bidyabhan Mohapatra,[1962] Supp. 1 S.C.R. 648, wherein it was held that if the order in an enquiry under Art. 311 can be supported on any finding as substantial misdemeanour for which the punishment imposed can lawfully be imposed it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing the punishment in question.

The second Charge :

      Coming to the second charge, the Hon’ble Apex Court stated, in order to examine the contentions of Mr. Garg, the learned Counsel for the respondent it is necessary to set out the circular issued by the General Manager on June 19, 1956. That was a circular issued to all the heads of the departments. It reads :

"It has been brought to notice that in a number of cases railway employees have held meetings inside railway premises such as inside workshops, inside stores depots and within office compounds. It may be pointed out that this practice is extremely objectionable and has to be stopped forthwith. AR staff may be warned that if any one of them is found organising or attending a meeting inside railway premises or at places of work, he will render himself liable to severe disciplinary action as such action on his part will amount to misconduct arising out of violation of administrative instructions. Meetings of workers can be held on open grounds away' from places of work with the permission of the railway authorities concerned if such open grounds fall within railway boundary.

You are to note these instructions very carefully and to ensure their strict compliance in future.

Please acknowledge receipt."

       The direction with which we are concerned in this appeal is that which prohibits the holding of meetings within the railway premises including open grounds forming part of those premises. That direction does not deprive. the workers any of the freedoms guaranteed to them under Art. 19 (1). It merely prohibits them from exercising any of them within the railway premises. What is prohibited is the holding of meetings for any purpose within the railway premises. The question is whether such a direction is violative-of Art. 19 (1) ? In the instant case the Hon’ble Apex Court was concerned with the meetings held outside the main time office and it was not denied that that place formed part of the railway premises.

 Whether the rights guaranteed under Art. 19 (1) (a), (b) and (c) are inviolable ?

      It was strenuously urged on behalf of the respondent that the rights guaranteed under Art. 19(1) (a), (b)and (c) are inviolable and they cannot be interfered with excepting in accordance with sub-Arts. 2, 3 and 4 of the said Article. According to Mr. Garg, the railway workers have a right to assemble in any place they choose and give expression to their views so long as they do not disturb the work going on in the premises and that right is guaranteed to them under our Constitution.

      On the above submission the Hon’ble Apex Court stated, it is not disputed that the Northern Railway is the owner of the premises in question. The fact that the Indian Railways are State Undertakings does not affect their right to enjoy their properties in the same manner as any private individual may do subject only to such restrictions as the law or the usage may place on the. Hence unless it is shown that either under law or because of some usage the railway servants have a right to hold their meetings in railway premises, the Hon’ble Court stated, it sees no basis for objecting to the direction given by the General Manager. There is no fundamental right for anyone to hold meetings in government premises. If it is otherwise there is bound to be chaos in our offices. The fact that those who work in a public office can go there does not confer on them the right of holding a meeting at that office even if it be the, most convenient place to do so.

Reasonable Restrictions on Rights under Article 19 :

      The Hon’ble Supreme Court stated that it is true that the freedoms guaranteed under our Constitution are very valuable freedoms and this Court would resist abridging the ambit of those freedoms except to the extent permitted by the Constitution. The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please. The exercise of those freedoms will come to an end as soon as the right of some one else to hold his property intervenes. Such a limitation is inherent in the exercise of those rights. The validity of that limitation is not to be judged by the tests prescribed by Sub-Arts. (2) and (3) of Art. 19. In other words the contents of the freedoms guaranteed under cls. (a), (b) and (c), the only freedoms with which the parties were concerned in this appeal, do not include the right to exercise them in the properties belonging to others. If Mr. Garg is right in his contentions then a citizen of this country in the exercise of his right under cls. (d) and (e) of Art. 19 (1) could move about freely in a public office or even reside there unless there exists some law imposing reasonable restrictions on the exercise of those rights. In support of his contention Mr. Garg strongly relied on the decisions of the Supreme Court of United States of America in Marsh vrs. Alabama, 90, Law ed. p. 265 and Tucker vrs. State of Texas, 90, Law ecd. p. 274. Tucker's case was decided on the basis of the rule laid down in Marsh's case. Hence it is not necessary to consider it separately. In Marsh's case the Supreme Court laid down that the constitutional guarantees of freedoms of press and of religion precludes the enforcement against one who undertook to distribute religious literature on a street of a company-owned town, contrary to the wishes of the town's management, of a state statute making it a crime to enter or remain on the premises of another after having been warned not to, do so. In order to appreciate this decision it is necessary to bear in mind the facts of the case. The appellant therein was a Jehovahs Witness who came into the sidewalk of a private town situate near the post office and undertook to distribute religious literature. In the store the corporation had posted a notice which read as follows:-

"This Is Private Property and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted."

The appellant was warned that she should not distribute the literature without a permit and told that no permit would be issued to her. She protested that the company’s rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When she was asked to leave the sidewalk and Chickasaw she declined. The deputy sheriff arrested her and she was charged in the state court for violating the law. The town in question is described in the judgment thus:

"The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Ship building Corporation. Except for that it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a business block on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which cannot be distinguished from the gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming into the business block and upon arrival a traveller may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping centre except the fact that the title to the property belongs to a private corporation. From the above description it is clear that the roads and sidewalks in that town had been dedicated for public use. It is in that context Justice Black observed :

 "The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights, become circumscribed by the statutory and constitutional rights of those who use it."

The learned Judge further observed : "We do not think it-makes, any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a town operate a 'business block' in, the town and a street and sidewalk on that business block. . . .

As we have heretofore stated, the town of Chickasaw does not function differently from any other town. The "business block" serves as the community shopping centre and is freely accessible and open to the people in the area and those passing through. The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the constitutional guarantees and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution."

THE CONCLUSION :

      On the above citation , the Hon’ble Supreme Court stated, in its pinion the rule laid down in Marsh's case does not apply to the facts of this case. The premises with which the parties are concerned in this appeal, unlike the roads and sidewalks of Chickasaw town, were not open for use by the general public. They were intended for certain specified public purposes. They could not be used for any other purpose except with the permission of the concerned authority. Neither the language of Art.19 (1) nor the purpose behind it lend support to the contentions of Mr. Garg. On the other hand their acceptance might lead to the confusion in public offices. Hence we are unable to accept them, STATED THE Hon’ble Apex Court.

THE VERDICT :

 In the result,

 1.The appeal was allowed.

2. The writ petition was dismissed.

No cost.