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Bhagelu and ors. Vs. Civil Surgeon, Jaunpur and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 1076 of 1955
Reported inAIR1960All353
ActsConstitution of India - Articles 19(1), 226, 309 and 311; Manual of Government Orders
AppellantBhagelu and ors.
RespondentCivil Surgeon, Jaunpur and anr.
Appellant AdvocateS.N. Misra, Adv.
Respondent AdvocateGovt. Adv.
DispositionPetition allowed
(i) constitution - alternative remedy - article 226 of constitution of india - incases where an alternative remedy exists but has not been pursued - high court ordinarily will not interfere - high court will interfere in appropriate and exceptional cases in spite of such remedy available. (ii) condition of service - article 309 of constitution of india and paras 95, 96 and 97 of manual of government orders - contents of paras 95, 96 and 97 are not government servants conduct rules - they are only administrative orders - they do not restrict the right of government servant to form association - government servant form association - government servant cannot be held guilty on account of misconduct. - - xvi ot 1926. the registration was granted on 25-5-1955. the petitioners' allegation is.....order1. there are three petitioners, who are bhagelu, rattu mali and ram khelawan mali the first named was a chaukidar and the last a gardener in women's hospital jaunpur. the second was also a gardener but in the district hospital jaunpur. both the hospitals are government institutions under the charge of the civil surgeon, jaunpur.2. all the three applicants were permanent employees under the subordinate services of the government of this state. besides the petitioners there were a number of other class iv servants attached to these institutions. these employees formed an association consisting of them with ram khelawan as president, rattu as secretary and bhagelu as treasurer and also applied for its registration under the trade unions act. no. xvi ot 1926. the registration was granted.....

1. There are three petitioners, who are Bhagelu, Rattu Mali and Ram Khelawan Mali the first named was a chaukidar and the last a gardener in women's hospital Jaunpur. The second was also a gardener but in the District hospital Jaunpur. Both the hospitals are Government institutions under the charge of the Civil Surgeon, Jaunpur.

2. All the three applicants were permanent employees under the subordinate services of the Government of this State. Besides the petitioners there were a number of other class IV servants attached to these institutions. These employees formed an association consisting of them with Ram Khelawan as President, Rattu as Secretary and Bhagelu as Treasurer and also applied for its registration under the Trade Unions Act. No. XVI ot 1926. The registration was granted on 25-5-1955. The petitioners' allegation is that the above action on the part of, the class IV employees of the two hospitals was disapproved by the medical officers Incharge of those institutions; consequently they started presenting all sorts of obstacles, including threats to the members to discontinue the union. The insinuation is that the aforesaid adverse attitude of the authorities was due to the resentment which these class IV employees showed by their refusing to give begar to the medical officers. Hence they served 24 out of the 25 members of the union with a charge-sheet under the signatures of the Civil Surgeon as follows;

'It has come to my notice that you have organised a hospital Sangh in association with members of Political Parties and have tried to produce obstacles in the hospital administration. Not only this but you have also been leaking out information of hospital work and administration to the members of the political parties. All this you have been doing even on my explaining to you that your action is against Government Servants Conduct Rules and that you cannot organise an Union without prior sanction of the Government. Yon are, therefore, charged as follows :

1. Disobedience of orders, 2. Misconduct.

Evidence which it is proposed to consider in support of the charge.

1. Non-compliance of instructions explained to you by me.

2. Your written statement etc. before me.

You are hereby required within ten days of the receipt of this charge-sheet to put in a written statement of your defence in reply to each of the charges. You are warned that if no such statement is received from you by me within the time allowed, it will be presumed that you have none to furnish and orders will be passed in your case accordingly.

You are further required simultaneously to inform me in writing whether you desire to be heard in person and in case you wish to examine or cross-examine any witness, you are together to submit along with your written statement their names and addresses together with a brief indication of the evidence which each such witness shall be expected to give.'

It was clear from the above charge-sheet issued that one of the grievances against the petitioners was that they had organised a union, without priorsanction of the Government, in association with members of political parties. The reply filed by the petitioners on the above charge-sheet disputed that they had organized the union with any intention to obstruct the smooth working of the hospitals or that it has connection with any political party; on the contrary it was claimed that they had a right under the law to form the union, the object of which was to improve their social and economid condition and to advance the interests of the hospital administration. They also denied that they had disobeyed any order or command from the superior officers. A few days later on 26-5-1955 the Civil Surgeon made an order suspending the three petitioners along with one other employee Seesh Ram as he considered that the reply furnished by them was not satisfactory.

Rattu petitioner was on leave at that time, but in view of the suspension order his leave was cancelled. Thereafter the Civil Surgeon heard and examined the petitioners on the charge-sheets handed over to the petitioners. Ram Khelawan was, examined on the 4th June, Bhagelu on 6th June and Rattu on 13th June and in the end came to the conclusion that the charge of misconduct and disobedience had been proved against them. They were then asked to show cause why they should not be dismissed from service and in the end ho made an order dismissing them from service. The petitioners then filed this petition impugning the said order of dismissal. Admittedly they filed no appeal against their dismissal to the Director of Medical and Health Services, which, under the rules governing their employment was open to them. One of the questions which therefore will arise in this case is whether the petition should be rejected on this ground alone. It will be dealt with later.

3. The main grievance against the petitioners had been that they had organised a new union which was contrary to the rules framed by the Government in that behalf; as such they were guilty of misconduct. In the charge-sheet that was handed over to them they were also accused of disobedience of orders, but curiously enough no instance was cited in it, except making a vague allegation to the effect 'disobedience of orders'. Even at the place where the charge mentioned the evidence, which it was proposed to consider in support, no mention was made of any particular incident relating to disobedience of an order. The evidence referred to in the charge was (1) 'non-compliance of instructions explained to you by me', and (2) 'your written statement etc. before me.'' The reference under item (1) to instructions was clear from the averments in paras 4(e), 4(f) and 4(g) to the instructions regarding formation of association by Government servants contained in para 97 of the Manual of Government Orders 1954 Edition. What appeared from the Civil Surgeon's affidavit was that after these employees had formed tho union it was felt that this was not a very proper act on their Dart. It also happened that one Sri Basit Ali, claiming to be the President of the Union approached the Civil Surgeon on 22-3-1955 with certain demands or suggestions on behalf of the members of the union.

The Civil Surgeon, who did not like this sort of interference with the hospital administration, assembled the staff of the hospital including the petitioners and explained to them their rights and duties as Government servants vis-a-vis this question. At this meeting the implication of Government Servants' Conduct Rules 17 to 23 was explained. The relevant point in these rules was, firstly, that a Government servant shall not unless so authorised by the Government communicate any information contained in any document etc. to the press and others, and, secondly, that he shall not take Part in any political movement or other activity, which directly or indirectly, may embarrass the Government. Another point that was explained by the Civil Surgeon in this meeting was with regard to the right of a Government servant to form an association.

4. Reading the two items relating to the proposed evidence in the charge-sheet against the petitioners in the light of the above instructions thus claimed to have been given be the Civil Surgeon, it was clear that the insistence in the charge-sheet once again was on the fact that these government servants had organised a union though the implication also was that certain information relating to the hospital's affairs had been communicated by them to outsiders. In view, however, of the fact that neither in the charge-sheet, nor in the instructions said to have been given by the Civil Surgeon and to be found in paras 4(e) and 4(f) aforesaid any particular instance in that behalf was mentioned, this part of the accusation if any against the petitioners remained as vague as ever. From the written statements also, which are referred to as item (2) of the proposed evidence in the charge-sheet, it was not possible to read any instance in which any information concerning hospital's affairs might be said to have been communicated by them to outsiders.

5. It might also be mentioned that even at the hearing of this petition, though we asked the learned Standing Counsel, he was unable to refer us to any instance imputing any such conduct to the petitioners. He was satisfied by inviting our attention to the fact alone that the petitioners having deputed Sri Basit Ali to urge their grievances concerning hours of work etc., before the Civil Surgeon they to that extent at least divulged the information to an outsider. But for successfully founding a charge on that account it must first be established that those grievances could at all be cabled information for which paras 17 and others of the Government Servants Conduct Rules made provision. The petitioners were resenting employment, whether on duty or otherwise, beyond certain hours and Sri Basit Ali approached the Civil Surgeon to plead their above grievance before him. While, therefore, it may be said to be a matter concerning the employment of these Government servants, it was not possible to accept that it amounted to communication of any information contained in any document etc., relating to hospital administration, to which class of information Rules 17 and others applied.

6. Thus both factually and otherwise, the charge-sheet served upon the petitioners was substantially this, namely, that they had organised a union without prior sanction of the Government. Both the charges that is, disobedience of orders and misconduct mentioned in it were directed to the same point. In any case, since it failed to cite any instances in which disobedience otherwise than by forming the union might have been indulged or some information divulged, it has to be held and construed to that effect alone.

7. Just here it may be worthwhile to refer briefly the statements, which the Civil Surgeon recorded, of these persons at the enquiry on the charge-sheets. Primarily these statements relate to the same matter, namely, that they had organised a union but incidentally the petitioners were also questioned about one or two instances in which they had refused to accept some paper or were alleged to be discourteous to their superior officers. As, however, no such instance was even included in the charge-sheet, nor even in the evidence orcircumstances proposed to be rolled upon in support, it will be not proper to attach any significance to them. In fact they are apt to cloud the real point which, as earlier stated, in the case of the petitioners was that they had actively worked in forming the union which was the charge against them.

8. It was considered necessary to refer to the above facts in order to make it clear that truly and precisely the case against the petitioners was that they had organised a union which was contrary to rules and that they thereby exposed themselves to the charge of misconduct. They were actually tried on this charge and dismissed also on that ground. This feature of the case will have to be kept in view in considering the validity of the dismissal order passed against them.

9. Para 96 of the Manual of Government Orders is that:

'Government servants are not prohibited from joining any society, which is not an unlawlul society; but departmental notice will be taken of the conduct of any official who takes part in advocating or organizing a society which sets one class of the community against another, or in propagating the tenets of such a society'.

The next para requires that the prior sanction of Government is necessary to the formation of associations by Government servants, all of whom are not workmen within the meaning of Section 2(g) of the Indian Trade Unions Act (XVI of 1926). The rates governing recognition of such associations are reproduced in Appendix 5. The remaining sub-paras provide what matters shall be looked into while considering the question of recognition of such associations including the qualifications required for office bearers. The purpose of the instructions regarding recognition contained in Appendix 5 as appeared from instruction No. 4, is that ordinarily the Government will not object to persons, who are not in the active service of Government, being office holder of the association, but it has the right in individual case to refuse recognition where all the office bearers are not either in the active service of the Government or retired officers. Instruction 5 deals with representation made from such associations and provides that notwithstanding anything contained in the rules relating to submission of petitions etc., by Government servants', Government officers may receive representations by such associations if they are representations in connection with a matter raising a question of common interest to the class represented by the association. Instruction 6, which is rather specific says that recognition is accorded for the purpose of enabling the employees of the Government to communicate their needs to Government or Government officers and it can be withdrawn if the association adopts other methods of ventilating those needs.

9a. One of the questions which the parties canvassed in connection with the above provisions in paras 96 and 97 of the instructions in Appendix 5 was with regard to their true nature and constitutional status. On behalf of the State the claim is that they are 'conditions of service' within the meaning of that expression contained in Article 309 of the Constitution; as such any disregard of them exposes the Government servant concerned to a charge of contravention and therefore misconduct also. The class of Government servants concerned have formed an association without the prior sanction of the Government, as admittedly was the position in the present case, they have rendered themselves guilty of misconduct.

10. The above claim by the State is disputed by the petitioners according to whom the above provisions are no more than mere administrativeinstructions but do not form part of the Government Servants Conduct Rules as such. They further contend that their contravention cannot result in a charge of misconduct. Alternatively, the contention also is that these provisions do not prohibit Government servants from forming an association but make provision for contingencies in which alone an association formed by them will be recognised by Government and be, as such, entitled to speak collectively on behalf of the members of the service. In other words, the absence of recognition has no greater effect than disentitling the association to speak on behalf of or represent the servants or entitling the Government and its officers not to attend to them.

11. Conditions of service of persons serving in connection with affairs of a State have under Article 309 of the Constitution to be provided by an Act of the legislature but until such an Act is enacted the Governor has been armed with the power to do so by rules. In pursuance of that power the Government has framed the Government Servants Conduct Rules to which reference has been made in para 95(1) also of the Manual of Government Orders. This sub-para is:

'Rules for the conduct of Government servants have been issued separately. A copy of these rules should be so kept in each office as to be easily available for reference by all concerned.'

12. This sub-para exists in the same chapter as paras 96 and 97 which are headed by the description 'Government Servants' Conduct Rules and Subsidiary Instructions.' Reading this heading along with the contents of sub-para (1) of para 95 aforesaid, it is fairly clear that the contents of paras 95, 96 and 97 and of those that follow them are not the Government Servants' Conduct Rules or their part as such but are subsidiary instructions. As instructions they are and have to be administrative directions. They do not for the fact alone that they happen to concern certain aspects relating to services under the State become conditions of service of servants concerned, A condition of service is some limitation or restriction or other similar obligation connected with the employment of a person, in this case the Government servants. Viewed from that angle also the provision in para 97 cannot be said, except by stretching the meaning too far, to be any limitation, restriction or obligation. As a matter of fact, it is in the nature of an administrative order which allows the Government servants to make collectively approach in certain cases those concerning the general interest of the service. Neither the para itself nor the further instructions contained in Appendix 5 appear to go farther.

13. The learned Standing Counsel was unable to point out to us that these instructions bad in faet been made under the rule making power in Article 309 or any similar provision in any predecessor Constitution. On the other hand, the petitioners, placed before us a copy of the Government Servants Conduct Rules to which reference existed in the counter affidavit filed by the Civil Surgeon also. In these rules which apparently were made under Article 309 of the Constitution no provision on the lines of para 97 of the Manual of _ Government Orders has existed. The present petition was commenced in 1955. The dismissal order complained of, ton was made in the same year. For the first time in November 1957 by a notification No. 3330/11-B-152-57 dated 1-11-1957 a new Rule 5-B as follows was added:

'Joining of Associations by Government servants -- No Government servant shall join or continue to be a member of any service Association of Government servants --

(a) which has not, within a period of one month from its formation, obtained the recognition of the Government under the rules prescribed in that behalf, or

(b) recognition in respect of which has been refused or withdrawn by the Government under the said rules'.

Prior to this there did not exist any prohibition against Government servants joining an association which bad not received recognition. Two things at once followed from the amendment, firstly that prior to 1-11-1957 a Government servant unless he was otherwise disentitled to do so, wan not prohibited from joining an association not recognised by Government, and, secondly that the case of the petitioners was not affected by the above amendment which created the disability much later. It would also be deduced from it that in the absence of any other provision stopping them from becoming members of such an association they were free to do so.

14. In para 96 of the Manual of Government Orders it was noticed that a government servant was not prohibited from, joining any society which was not an unlawful society. In other words it accorded freedom to a Government servant to join an association, provided it was not an unlawful society. It is nowhere provided that an association which has not received the prior sanction of the Government is an unlawful society. A Govt. servant was thus free to join an association if it could not be identified as an 'unlawful society', even though it had not been formed with the prior sanction of the Government. The bye-laws relating to the union, of which the petitioners are members or office bearers, do not show that the union was such a society. Its object including amongst others was the advancement of efficient working of the hospital and ameliorating the economic conditions etc., of the employees. The membership of this association was, therefore, permitted in view of para 96 above.

15. It was contended on behalf of the State that para 97 was in the nature of a proviso to the main provision which is in para 96, therefore the former restricted the general permission given in para 96 and thus imposed an obligation on a Government servant not to be a member of an association of Government servants which was not formed with prior sanction. We have considered this part of his argument but arc unable to hold that para 97 is in the nature of a proviso. This para has simply provided the manner and the consequences of recognition of an association of Government servants, and when read with the instructions in Appendix 5 the effect of recognition. It has nothing to do with the right of a Government servant to become or not to become a member of such an association. That right is governed by Para 96. The object and purpose of para 97 is the recognition of the association with consequent rights etc.

In this view of para 97 it is not possible to claim that it places any restriction on the right of association which right has apparently been conceded to Government servants under para 96. We are unable to agree with the contention also of the petitioners' counsel that by thus placing a restriction on the right of association of Government servants as such it exposed to the risk of Article 19(1)(c) of the Constitution. The correct view about it in our opinion is that it does not restrict their right of association but only says what fate or value shall attach to any representation etc., made by it. So far as the right to form an association is claimed to belong to him under sub-clause (c) of Clause (1) of Article 19 of the Constitution is concerned, ithas not been restricted, in fact is already assured to him under para 96. The net and indeed the true effect of para 97 thus is that unless the association has been formed with the prior sanction of the Government the association will not have the right to speak or to be heard on behalf of the members of the service. Their right of association has remained unaffected, at worst the right to speak through association has been regulated which, however, is not the ground of attack by the petitioners. It will thus not be correct to contend that this para has placed restriction on the right of association.

16. If this is the correct view about para 97 the contention that it offended Article 19(i)(c) of the Constitution has to fail. It will not be necessary in the above situation to examine whether its provisions stood the test of Clause (4) of Article 19 which authorised the placing of reasonable restrictions on the right of association in the interest of public order or morality.

17. In this connection it may be worthwhile to notice that one view about para 97 can be that, since it requires Government servants to act in a certain manner in relation to their employment, namely, that a representative approach by them to higher authorities shall be made through a recognised association only, it is a matter which directly concerned Clause (6) of Article 19 which authorised the imposing of reasonable restrictions in the interest of general public on the right guaranteed to citizens under sub-clause (g) of Clause (1) of that 'Article, namely, to practise any profession or to carry on any occupation, trade or business. If that be true it is a restriction on the right to carry on any occupation, -- a view that has been urged before us -- the test for judging its validity will need to be found in Clause (6) aforesaid. However, it docs not appear necessary to express further on this question which, in our opinion, does not directly arise in the present case, particularly because para 97 as already held, does not restrict the right of association and that alone was objected to in its case. We shall not, therefore, embark upon a consideration of this question which will not affect the decision.

18. Our finding accordingly is that para 97 places no restriction on the freedom of association. In the above context the question about its unconstitutionality on the ground that it contravened the guarantee given to a citizen by Article 19(1)(c) of the Constitution should not really arise. However, it will be desirable to refer to three decisions which were cited at the bar,

19. The one was Ramakrishnaiah v. President Dist. Board, Nellore, AIR 1952 Mad 253. In this case the question arose as to the validity of certain rules framed by the Government of Madras in connection with the right of teachers of elementary schools to organise an association etc. by them. The material portion of the rule was that the teachers will obtain the permission of the Board before forming unions for which they should apply to the Director, Public Instructions for its recognition. It further provided that the teachers in recognised elementary schools were prohibited from becoming members of unions not constituted in accordance with the rules. There was thus a dual provision: (1) that an association formed by the teachers must be recognised and (2) that no teacher could be member of any association which was not recognised.

20. The validity of these rates was challenged on the ground that they contravened the right or association conferred by sub-clause (c) of Clause (1) of Article 19 of the Constitution and the contention was that they prevented the teachers from becoming members of an union not recognised save at the risk of suffering consequences by way of being dealt with for misconduct. It was urged that this amounted to an unreasonable restriction on the freedom of association. The learned Judge held the rule to be ultra vires and observed as under:

'The question is whether any employee of the State or a local body could be prevented from becoming a member of an association which is not recognised by the Government, whether the previous permission or approval of the Government could be made a condition precedent for the exercise of the employee's right to become a member of an association.' A little further they again observed;

'Can the Government prohibit an employee from becoming a member of any association other than the recognised association?' In connection with the other rules the State Government issued an order also pointing out that the Director of Public Instructions was not only empowered to accord sanction to the functioning of the unions but was also authorised to forbid the existence of, and dissolve, any teachers' union not conforming to these rules. In holding the rule to be ultra vires the learned Judges pointed out that:

'In so far as they empower, the Director of Public Instructions to forbid the existence of, and dissolve any teachers' union not conforming to the rules and compelling teachers in Local Board or Municipal Board to obtain the permission of the Board or Council concerned before forming unions and in so far as they prohibit teachers in recognised elementary schools from becoming members of teachers' unions or other teachers' organisation not constituted in accordance with the orders of the Government should be declared to be void as consisting an abridgment of the right of freedom of association guaranteed by Article 19(1)(c) of the Constitution.'

21. The facts of the above case were materially different than here. Para 97 does not prohibit the formation of unions by Government servants, a right which has been conceded to them under para 96. There is no right belonging to the Government or any other authority either under para 97 to dissolve any union. No prohibition either on the lines contained in the Madras rules is present in it against Government servants joining any such association. In 1957 no doubt certain new rules have been added in that behalf in the Government Servants' Conduct Rules but we are not concerned with them here since they were not existent at the time when the impugned order was made or this petition was filed. The main consideration in the above case which weighed with the Court in deciding the unconstitutionality of the rules was the prohibition directly contained against teachers joining those associations and the power further belonging to the Director of Public Instructions to dissolve any such association. In the case before us the right of association is not interfered with, on the other hand is assured by para 96, while para 97 itself prescribes the procedure etc. alone for recognition. We do not, therefore, consider that the petitioners can benefit by the above decision.

22. The second case to which we would like to refer is Bata Krishna v. Asstt. Secy., Govt. of Bengal 61 Cal WN 459. This case was cited on behalf of the State, firstly, in support of the contention that the provision in pant 97 was intra vires and, secondly, in support of the proposition that the petitioners having entered in Government service were not entitled to agitate the question of their vires. In this case two particular rules were attacked on the ground that they infringed thefundamental right guaranteed under sub-clause (a) of Clause (1) of Article 19, that is, the right of freedom of expression. These rules prohibit the Government servants from criticising the Government and publishing information relating to foreign countries and taking part in any election etc. In the course of discussion the learned Judges relied upon an earlier decision in Md. Sarafatullah Sarkar v. Surja Kumar Mondal. 59 Cal WN 652: ((S) AIR 1955 Cal 382) and quoted with approval as under:

'The Government Servants' Conduct Rules are only rules of internal discipline operating within the sphere of Government service and limited in their operation to that sphere. They specify certain acts which can be done by Government servants only in a certain way and other acts which may not be done by them at all, consistently with the conduct they are required to maintain as Government servants. Further the Rules cannot and do not go. They cannot and do not create a legal disability in Government servants to do effectively the 'acts forbidden by the Rules, if they are otherwise competent to do them, whatever the consequences of transgressions in this regard may be to their career as Government servants. While, therefore, a Government servant offering himself for election to one of the bodies mentioned in Rule 23 may bring upon himself disciplinary action which may go as far as dismissal, the consequence cannot also be that his election will be invalid or that the validity of his election will be affected by the breach. The disqualification imposed by Rule 23 is of the nature of a personal bar which can be overstepped only at the Government servants' peril as regards his membership of a service under the Government.'

23. Later the learned Judges observed that there is no fundamental right of a person to obtain employment under the Government. The moment he enters in Government service he becomes bound by the conditions and rules of service which regulate such employment. It is against this background that the reasonableness of the restrictions imposed by Rules 20 and 23 have to be decided.

24. The State contended that the petitioners having entered the service of the Government could not raise the objection that para 97 imposed any disability on them. By entering Government service they bound themselves by that provision which was at the most in the nature of a condition of service. In the words of the learned counsel for the State the petitioners have by their conduct taken upon themselves the particular obligation, in other words, have waived also their right to challenge its validity.

25. We would also refer to the recent decision of the Supreme Court in Basheshar Nath v. Commr. of Income-tax, AIR 1959 SC 149 on the question whether and how far a person can waive his fundamental right guaranteed to him under Part II of the Constitution. It however seems to us that these questions were not necessary for the decision of the instant case because para 97, as held by us, does not place any restriction on the freedom of the association. Any question of waiver or of its validity otherwise should not arise.

26. The 'ext question to be considered is about the validity of the dismissal orders in the case of the petitioners. The charges which resulted in their dismissal were mentioned earlier. Essentially these were that the petitioners by lending themselves as members or office bearers of the union which had not been formed with the prior sanction of the Government committed a contravention of para 97, therefore, were guilty of misconduct. The charge of disobedience which has been included in the charge-sheets was to the same purpose. And though certain other instances in which the petitioners were blamed to have behaved disobediently or insolently towards the superiors were put to them during their examination in the course of the enquiry, no such instances were cited in the charge sheet or in the evidence relied upon in support of the charges. These other instances, therefore, cannot and in fact did not form the basis of the dismissal order passed against them. The consideration in judging the validity of the dismissal order shall, therefore, have to be confined to the charges with which they were actually charged. These were as once before too mentioned, that they had lent themselves as members and office bearers of the union which had been formed without prior sanction.

27. The question that at once arises is how far they could on that account be held to be guilty of misconduct. There was no prohibition then in the Government Servants' Conduct Rules or even in para 97 prohibiting Government servants from becoming members of any such association. Still more no provision also existed attaching any disability on any Government servant on account of membership of any such association. On the contrary para 96 gave them the freedom to join any society which was not unlawful. It is not conceivable once the above facts are there how the petitioners could be held to be guilty of misconduct by being members of the association which on account of the fact that it was not formed with the prior sanction of the Government lacked recognition. The only result of absence of sanction was that the association could not represent to the authorities on behalf of the members of the service and the Government officers were entitled to decline to hear its representations. We are, however, not concerned with that fact but with what we are concerned is that the petitioners were not in any manner prohibited from being members of any such association or forming it. In the above circumstances the order holding them guilty of misconduct was manifestly wrong and due to a patent error. It is, therefore, liable to be quashed.

28. The only other point that still remained to be answered is whether this petition should be rejected on the ground that the petitioners failed to avail the right of appeal to the Director of Medical and Health Services which they had against the order of dismissal. It is true that no appeal was filed by them against the order of dismissal to the Director of Medical and Health Services; instead they approached this Court directly. Ordinarily this Court will decline to lend its extraordinary powers under Article 226 in any case where an alternative remedy existed but has not been pursued but this is a rule of self discipline and in appropriate cases the Court will notwithstanding the existence of any alternative remedy may extend its assistance.

29. In the present case these are some of the circumstances which, in our opinion, cannot be ignored. The controversy throughout centered round the vires of para 97 and the consequential matter whether a non-compliance of that para was a misconduct entitling a Government servant Inaction against him. It is on this basis that this petition too has been fought throughout; once when it came up for hearing before a learned Single Judge who referred it to a Division Bench the same question was raised and he referred it to a Division Bench as the question was considered to be, of course by the parties including the State Government also of importance and of far reaching consequence. The matter while it was still agitating the authorities of the two hospitals and before this petition was filed had been referred by the former to the Director of Medical and Health Services alsoseeking his instructions and as further appeared the Director endorsed to this extent at least that any employee who did not co-operate in the hospitals administration should be seriously dealt with. A colour had also been lent to the controversy by the fact that members of certain political parties were guiding the employees. In view of these facts we are of the opinion that this is not a fit case in which we should decline to grant the relief to which the petitioners are entitled on the ground of alternative remedy.

30. The result of the foregoing discussion,therefore, is that the order of the Civil Surgeon dismissing the petitioners is quashed. The petitionershave also asked for a direction against the respondents restraining them from stopping the petitioners to form the union. In view of the fact thatthe union is already existing and further that theGovernment Servants' Conduct Rules have sinceundergone a change according to which a Government servant cannot be a member of a union notformed with the sanction of the Government andthe effect of those rules has not been consideredin this case we refrain from issuing any such direction. The petitioners will get their costs from therespondents.

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