BENCHEY LAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The petitioner was employed as a clerk in the Collectorate of Shahjahanpur. He was recruited in the year 1921, and since 1927 he has been working as a permanent employee. The ministerial officials of the Collectorate have organised themselves into an association since 1929. One Radhey Lal Gupta was the Reader of the sub-divisional Magistrate, Jalalabad. He made a complaint that on or about Sunday, 5-2-1956 he was mal-treated by the Sub-divisional Magistrate and he filed a complaint in the Court of the Addl. District Magistrate, (Judicial) Shahjahanpur the next day against the Sub-divisional Magistrate. The complaint was rejected on the ground that previous sanction of the Government was necessary. Thereupon it is contended by the petitioner that a meeting of the association was convened by the President of the association for the 7th February at 4-45 p.m. The matter was discussed before the meeting. The meeting is said to have decided to re-sort to a pen-down strike on the 10th February for two minutes from 12 noon. The resolution is said to have been passed unanimously and a copy of the proceedings was sent to the Collector, in charge of the district. The petitioner further alleges that the District Magistrate was away and so no reply was re-ceived by the association to the letter sent to the Addl. District Magistrate. In the meantime the Provincial President of the Association sent instructions that there should be no strike. There was, therefore, according to the petitioner, no strike as decided upon by the association. When the District Magistrate returned on duty on the 24th February, on the 27th February, he enquired from the office Superintendent in writing about the name of the person who had moved the resolution and also the name of the person who was the seconder of the resolution. According to the petitioner in reply the office Superintendent said that he was not in a position to know as to who was the mover as the resolution was passed unanimously. Thereupon he passed an order on 27-2-1956 in the following terms :

(2.) A counter affidavit has been filed on behalf of the opposite party in which the allegations made by the petitioner have been denied. Mr. Misra, who appears for the petitioner, has urged three points.

(3.) Firstly it is contended by him that the formation of an association is a fundamental right guaranteed to a citizen. The right to form an association carries with it a right to carry on the legitimate activities. In view of the provisions of Article 19 of the Constitution which carries such a right it was open to the petitioner and other members of the association to pass any resolution and mere discussions in the association about the conduct of an officer or even deciding upon some future course of action as a protest to the conduct of the officer concerned and in sympathy with employee, cannot amount to any misconduct and cannot be the basis of a charge against the employee. In this connection it was further urged that there was nothing in the Government Employee Conduct Rules which makes s mere discussion or passing of certain resolutions by itself contrary to the Rules. Secondly it was urged that although it was decided upon in the meeting that the employees, in sympathy with Shri Radhey Lal Gupta will stop working for two minutes, the action which was proposed under the resolution cannot be regarded as a strike. Lastly it was contended that no strike, in effect, took place as will appear from the resolution passed on the 29th February and the instructions issued by the Provincial President. A telegram containing those instructions was sent and a copy of that telegram was tiled. There was therefore, no evidence before the enquiry officer on which it could be held that any such strike did take place. In this connection it was also urged that the report of the Tahsildar Jalalabad that such a strike did take place was an afterthought and inasmuch as that has neither been the basis of the charge nor was any mention made in the charge sheet of that document, It was contended that no opportunity was given to the petitioner to substantiate his defence and to meet the charges inasmuch as this report was brought on the record at a later stage. Lastly it was contended that the order was mala fide.