O.K. Ghosh v E.X. Joseph (1962)

Government servants are citizens, and the freedom to form associations or unions under Art. 19(1)(c) belongs to them too. The question is how far Government, as employer, may cut that freedom down. Rule 4-B tried to make membership of a service association depend on Government recognition: an association without recognition was one no Government servant could join or stay in.

The Court struck the rule down. It is the leading authority that the right to associate cannot be made conditional on the employer's approval, and it gives a precise reading of "in the interests of public order" in Art. 19(4) — the connection must be proximate and direct, not remote or far-fetched. It also restates, through Kameshwar Prasad, the distinction between demonstrations (protected) and strikes (no fundamental right).

E.X. Joseph served in the Audit and Accounts Department of the Government of India at Bombay. He was Secretary of the Civil Accounts Association of non-gazetted staff of the Accountant-General's office, which was affiliated to the All India Non-Gazetted Audit and Accounts Association. That body had been recognised by the Government of India in December 1956; in May 1959 the Government withdrew recognition.

Joseph continued as Secretary and refused to dissociate himself though called upon to do so. On or about 3 June 1960 he was charge-sheeted for breach of Rule 4-B; the Accountant-General, Maharashtra (O.K. Ghosh) found him guilty and issued a notice to show cause why he should not be removed from service. On 25 July 1960 a second enquiry was proposed under Rule 4-A, for actively participating in demonstrations organised in connection with a strike of Central Government employees and taking active part in the preparations for that strike.

Joseph petitioned the Bombay High Court under Art. 226, contending that rr. 4-A and 4-B violated Art. 19(1)(a), (b), (c) and (g). On 18 January 1961 a Division Bench held Rule 4-A valid, but held Rule 4-B invalid and quashed the proceedings under it. Both sides appealed by special leave: the Accountant-General and the Union of India (Appeal 378/1962) against the ruling on 4-B, and Joseph (Appeal 379/1962) against the ruling on 4-A.

The rules, framed under Art. 309, provided: Rule 4-A — no Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service; Rule 4-B — no Government servant shall join or continue to be a member of any Service Association which has not obtained Government recognition within six months of its formation, or whose recognition has been refused or withdrawn.

1. Is Rule 4-B, which conditions membership of a service association on Government recognition, a reasonable restriction "in the interests of public order" saved by Art. 19(4), or does it violate Art. 19(1)(c)?
2. What connection with public order must a restriction have to fall within Art. 19(4)?
3. Was Rule 4-A wholly valid, and could the proceedings against Joseph under it stand?

Appeal 378/1962 (the Government's) was dismissed; Appeal 379/1962 (Joseph's) was allowed. The departmental proceedings under both rules were quashed. No order as to costs.

Government servants have Art. 19 rights

The Court treated it as settled: "It is not dispute that the fundamental rights guaranteed by Art. 19 can be claimed by Government servants." Art. 33, which lets Parliament modify the rights for the Armed Forces, shows that all citizens, Government servants included, are entitled to them.

"In the interests of public order" in Art. 19(4)

The Solicitor-General argued that Rule 4-B was a reasonable restriction in the interests of public order. The Court accepted that discipline and efficiency among Government employees "may,in a sense, be said to be related to public order", but held that "public order" must mean the same in clauses (2) and (4) — in clause (2) it is "virtually synonymous with public peace, safety and tranquility."

On the words "in the interests of": "A restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct." The Court adopted the words of Patanjali Sastri J in Rex v Basudev: "the connection contemplated between the restriction and public order must be real and proximate, not far-fetched or problematical." It relied also on Superintendent, Central Prison, Fatehgarh v Dr Ram Manohar Lohia.

Rule 4-B fails

The Court described the rule's effect plainly: "the right to form an Association is conditioned by the existence of the recognition of the said Association by the Government." Was that a reasonable restriction in the interests of public order? "In our opinion, the only answer to these questions would be in the negative." There was no "direct or proximate" or "reasonable connection between the recognition by the Government of the Association and the discipline amongst, and the efficiency of, the members of the said Association", nor any connection between recognition and public order.

The Recognition of Service Association Rules 1959 showed why. Recognition could be withdrawn for breach of conditions such as using disrespectful language in communications to Government, seeking affiliation without previous permission, or publishing a bulletin without approval. "It is not easy to see any rational, direct or proximate connection between the observance of these conditions and public order." So recognition might be refused or withdrawn on grounds wholly unconnected with public order, and the Court concluded that "the restriction thus imposed would make the guaranteed right under Art. 19(1)(c) ineffective and even illusory."

Rule 4-A and the charge against Joseph

Following Kameshwar Prasad v State of Bihar, Rule 4-A was invalid in so far as it prohibited any form of demonstration (violating Art. 19(1)(a) and (b)), but valid in so far as it prohibited strikes, since there is no fundamental right to strike. The High Court had therefore erred in holding the rule wholly valid.

The charge against Joseph was of joining demonstrations and taking part in preparations for the strike, not of striking. The Court held that his joining demonstrations organised in connection with the strike "does not mean either in fact or in law that he participated in the strike itself." The charge rested on the invalid part of the rule, so the proceedings under it also fell.

A service rule that makes a Government servant's right to join or remain in an association depend on the association obtaining and keeping Government recognition violates Art. 19(1)(c), where recognition may be granted or withdrawn on grounds having no proximate and direct connection with public order. A restriction is "in the interests of public order" under Art. 19(4) only if its connection with public order is real, proximate and direct; a remote or far-fetched connection will not do. Government servants are entitled to claim the rights in Art. 19.

• Direct question: Is the right to form associations or unions under Art. 19(1)(c) available to Government servants? How far may it be restricted? Cite this case for the invalidity of Rule 4-B and the proximate-and-direct test under Art. 19(4).
• Problem question: a Government bars its employees from membership of any union it has not recognised. Apply O.K. Ghosh: the right to associate cannot be made conditional on recognition that may be withheld for reasons unconnected with public order.
• Distinction worth marks: demonstration versus strike. Taking part in demonstrations or preparations for a strike is not participating in the strike itself; a rule banning demonstrations is invalid, a rule banning strikes is not.
• Link: use it alongside Kameshwar Prasad v State of Bihar (Rule 4-A) when answering on trade union rights of public servants.