B.K. Ray, J.
1. O.J.C. No. 886 of 1971 is an application under Article 226 of the Constitution of India filed by the All Orissa Transport Employees' Union, Sambalpur and two other employees of the State Transport Service belonging to the said union for a declaration that the Orissa State Transport Employees Classification, Recruitment and Conditions of Service Rules, 1971, particularly Rules 9(1), 10, 22, 23(1), 23(5), 25(6), 25(7), 27(2), 27(4), 30, 36(4). 38, 39(9), 39(13)(c), 39(19),39(50), 39(63), 39(65), 4|(2)(a), 47(f)(g) and (h) and 48(3) are void being either ultra vires the Constitution or the Motor Transport Workers Act, 1961 (27 of 1961), the Industrial Disputes Act, 1947 and similar statutes and for a direction to the opposite parties not to enforce said rules and not to withhold pensionary benefits to the employees of the State Transport Service. The opposite parties are the State of Orissa and Director of State Transport Service, Orissa. O.J.C. No. 94 of 1972 is another but similar application under Article 226 of the Constitution of India for the aforesaid reliefs against the same opposite parties by the State Transport Employees Union, Koraput and Anr. who is a conductor in the State Transport Service. The reliefs as well as the opposite parties in the two cases being the same and common questions of fact and law being involved in the cases, they were heard together on the request of parties. Hence, this judgment will govern both the cases.
2. The facts giving rise to the two cases as narrated by the petitioners in both of them may briefly be stated thus-''The Orissa State transport Undertaking' (hereinafter referred to as the undertaking), is owned by the Government of Orissa functioning under the administrative control of the Transport Department of Government since 1956. The members of the two unions who figure as petitioners in both the cases as well as the other petitioners are workers serving under the said undertaking. From the very beginning when the undertaking was brought into existence, the service condition of its workers were being governed by the Orissa Service Code, Orissa Civil Services Classification, (Control and Appeal), Rules, Orissa Government Servants' Conduct Rules and other non-statutory directions of the authorities concerned. The Governor of Orissa framed a set of rules under Article 309 of the Constitution called the Orissa State Transport Employees Classification, Recruitment and Conditions of Service Rules, 1971 (hereinafter referred to as the Rules) for the employees of the undertaking of the Government of Orissa. These rules have been notified to come into force with effect from 1-10-1971.
3. The rules are attacked on grounds which are briefly stated below. According to the petitioners' these are less advantageous to them incomparison to the rules obtaining prior to 1-10-71 and have been enforced without the consent of the workers of the undertaking, Under Rule 1(3) of the rules, all previous rules, so far as they relate to matters regarding which provision has now been made have ceased to apply to the employees of the undertaking. The rules apply only to those categories of employees mentioned in Schedule I appended thereto. Consequently, other employees of the undertaking not mentioned in Schedule I, even though they come under the definition of ' Motor Transport Workers ' within the meaning of Section 2(h) of the Motor Transport Workers Act, 1961 (hereafter referred to as the 1961 Act) have been excluded from being governed by the rules. Further some non-industrial workers serving under the undertaking have been included in Schedule I of the rules. Thus, the exclusion of some employees who are Motor Transport workers as defined in the 1961 Act and the inclusion of some employees who are not really industrial workers within the purview of the wiles are claimed to be both arbitrary and discriminatory. The exclusion of the staff of the directorate and of the Divisional Establishments of the undertaking from Schedule I of the rules, while including other employees therein whose work is similar to that of the class of employees excluded is also alleged to be without any reasonable differentia. Rule 10 of the rules adversely affects the rate of overtime wages admissible to workers of the undertaking under the provisions of the Factories Act and the 1961 Act. Under Rule 9 of the rules, the Ministerial staff of the undertaking who were working for six hours a day previously have now to work eight hours a day; whereas, other Ministerial servants of Government continue to enjoy the privilege of working six hours a day, Rule 22 of the rule which provides for 'layoff' within the meaning of S 2(kkk) of the Industrial Disputes Act, 1947 does not make any provision for notice and compensation as provided under Section 25(c) of the Industrial Disputes Act even though about 3,000 employees of the undertaking are also governed by the said Act. This rule, therefore, being contrary to the provisions contained in the Industrial Disputes Act made by Parliament is void to the extent of its repugnancy. Sub-rule (3) of Rule 22 is also repugnant to Section 25(g) of the Industrial Disputes Act, inasmuch as the said sub-rule enables the undertaking to select workmen for purposes of lay-off and/or retrenchment. Under Rule 23(1) the number of holidays admissible to the employees of the undertaking has been reduced to 7 against 23 holidays admissible to State Government employees under the Negotiable Instruments Act besides 2 days as local holidays and 4 days as optional holidays in a year which they were enjoying previously. Rules 25(6), 25(7), 27(2), 27(4) and 30 are said to be less advantageous than the previous corresponding provisions regarding casual leave, half average pay leave or commuted leave and/or extraordinary leave. Rules 36(4) and 38 regarding loss of lien to the post of an employee under the undertaking and deemed abandonment of service are also less advantageous than the corresponding rules relating to those matters by which the employees of the undertaking used to be governed prior to the introduction of the rules. Rules 39(9), 39(13)(c), 39(50), 39(63) and 39(65) of the rules which deal with the maintenance of discipline and enumerate various kinds of misconduct have abridged the fundamental rights of the employees guaranteed to citizen of the country under Article 19(1)(a) of the Constitution. The restrictions put upon the employees under these provisions are not reasonable as envisaged under Article 19(2) of the Constitution. Sub-rule 2(a) of Rule 41 which prescribes the procedure for dealing with a case of misconduct says that the explanation to the charges shall be submitted within forty-eight hours of the receipt of the charge-sheet. As no distinction between major and minor charges is maintained in cases involving major punishments, the provisions for such a short period of notice virtually amounts to denial of reasonable opportunity to the delinquent employee and hence is contrary to the guarantee under Article 311(2) of the Constitution. It places the employee of the undertaking in a very disadvantageous position compared to the corresponding provision under the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962. Rule 47 makes provision for termination of service of an employee otherwise than by way of punishment. It provides for termination of service on three grounds, viz., (a) on any ground stipulated in the contract of employment, (b) if any information given by an employee in his application for appointment is subsequently found to be false and (c) for joining a lightening strike or acting in furtherance of such strike termination of service on any of these grounds mentioned in Rule 47 is claimed to amount to a stigma and hence without an appropriate enquiry answering the mandate in Article 311(2) of the Constitution is bad and is liable to be struck down. While reasons for termination are ordinarily to be communicated, unsustainable provision has been made in this rule authorising the withholding of the reasons under certain eventualities. Such a provision is alleged to be unconstitutional being hit by Article 311 of the Constitution. The rules make no provision for pension for the employees of the undertaking after their retirement; whereas, the employees who have retired prior to the enforcement of the rules are claimed to have had pensionary benefits. This denial of pensionary benefits is said to be hit by Article 19(1)(f) of the Constitution. Pension, according to the petitioners, being 'property' within the meaning of Article 19(1)(f) cannot be taken away.
4. On the aforesaid allegations the petitioners pray for the reliefs as stated above.
5. The counter filed by the opposite parties in both the cases are practically the same. The case of the opposite parties may briefly be stated thus. The rules are not less advantageous to the pre-existing rules. The State Transport Service is being run and managed on commercial basis departmentally as a State undertaking from its very inception in the year 1947. This undertaking is an industry and most of its employees are workmen. Hence, the provision of various industrial legislations apply to them. Prior to the framing of the rules, there was no single set of rules governing the service conditions of the employees of the undertaking. As such, serious administrative inconveniences were experienced because the service conditions of normal Government servants were found to be not in harmony with the provisions of the various industrial laws. As an example, it is said that while the employees of non-industrial and non-commercial departments of Government are not permitted to form trade unions, the employees of the undertakings have a statutory right to form such unions and to resort to collective bargaining through these unions to improve their service conditions. Similarly, in matters of disciplinary control, the employees of the undertaking were availing the safeguard available to Government servants, both under the Constitution as well as under industrial laws. In matters of retrenchment, the State Government while dealing with the employees of the undertaking was obliged to follow the beneficial procedure laid down under the Industrial Disputes Act whereas, while dealing with other Government servants, the normal rules were followed. On account of this anomaly, the employees themselves demanded for a set of comprehensive rules and the State Government also in view of the difficulties pointed out earlier felt the necessity of such a set of codified rules. Consequently, the rules have been framed-keeping in view the Labour Legislations, such as the Industrial Disputes Act, the Factories Act, the Motor Transport Workers Act, Workmen's Compensation Act, Payment of Wages Act, Shops and Commercial Establishments Act and also the various service rules governing the civil servants in general. The employees of the State Transport Service being Government servants, the State Government have the power to frame rules governing their conditions of service at any time and the consent of the employees is not necessary.
6. Regarding the exclusion of some employees from the purview of the rules, it is averred by the opposite parties that the classification is reasonable, inasmuch as, the work of the employees excluded is managerial and/or supervisory in nature and hence they do not come under the definition of 'workmen' as given in the Industrial Disputes Act. This classification has been done for administrative convenience.
7. In answer to the challenge to the specific Rules, the following has been pleaded-
(i) Rule 2 : About the total number of hours per day for an employee of the undertaking the stand taken is that prior to the rules, there was no codified rules prescribing the number of hours of work a day an employee of the undertaking belonging to the electrical staff had to put in. Therefore, in order to introduce uniformity this rule has provided for eight hours of work a day for all the employees of the State Transport service referred to in Schedule I of the rules.
(ii) Rule 10 : It is said that here a distinction has been maintained between the employees who come under the purview of the factories Act. and Motor Transport Workers Act, viz., the garage staff and the running staff and other employees of the undertaking because the latter belong to the clerical staff.
(iii) Rule 32 : It is said that Sub-rule (5) has made specific provision that in cases of lay-off and retrenchment, the workmen of the undertaking shall be given all benefits as provided under the Industrial Disputes Act. Hence, the petitioners contention that the rule is repugnant to Section 25(c) or 25(g) of the Industrial Disputes Act is not correct.
(iv) Rule 23 : Regarding the grievance of the petitioners about curtailment of holidays, it is claimed that prior to the rules the employees of the undertaking were not enjoying 23 days as holidays under the Negotiable Instruments Act, 2 days as local holidays and 4 days as optional holidays in a year as alleged. Previously, only the members of the office staff were enjoing those holidays according to Government calendar. The operational staff of the undertaking has only two holidays in a year, viz., the Republic day (26th January) and Independence day (15th August). The Orissa Industrial Establishment (National and Festival) Holidays Act was promulgated with effect from 25-11-1969 and under it provision was made for three common holidays, viz., 26th January, 15th August and 2nd October and 4 other holidays in a calendar year. The provisions of this act are applicabla to the undertaking. The rules regarding holidays have only in corpo rated these provisions of the said Orissa Act. Thus, Rule 23 is not repugnant to Section 53 of the Factories Act, inasmuch as, festive holidays and National Holidays do not come within the purview of the said act.
(v) Rule 25(6) & (7) : These are not less advantageous as alleged by the petitioners. These rules are substantially to the same effect as provided by the Orissa Service Code. The other provisions regarding leave under the rules are in conformity with the provisions of the industrial laws of the country. The rules only provide to control grant of casual leave and to discourage unnecessary absence from duty since the undertaking is a public utility service.
(vi) Rule 27 : Regarding the maximum period of accumulated leave, the rules have not effected any change. Under Rule 9(3)(i) of the Orissa Leave Rules, 1966, the maximum commuted leave admissible to a permanent employee including earned leave and half average pay leave is 240 days. Under Rule 7(i) of the said rules the maximum period of commuted earned leave has been fixed at 180 days. Under Rule 27(2) the limit of half average pay leave has been fixed at 60 days and under Rule 26(3) the maximum earned leave has been fixed at 180 days. Hence, the total period of leave 240 days which was available to the employees of the undertaking prior to the rules has been kept in tact under the rules. Rule 27(4) is merely a repetition of Note 1 to Rule 10 of the Orissa Leave Rules, 1966. As the undertaking is a publicutility service, a provision has been made in the rules that the leave sanctioning authority must be satisfied at the time of granting leave that an employee applying for leave shall return to duty after expiry of the same. The grievance of the petitioners regarding Rule 27(4) of the rules is not justified.
(vii) Rule 30: It is not correct as alleged by the petitioners that under the pre-existing rules an employee of the undertaking was entitled to a maximum period of extraordinary leave for five years. Rule 30 has been made keeping in view of the Orissa Leave Rules, 1966 which was applicable to the petitioners prior to the enforcement of the rules.
(viii) Rules 36(4) and 38: Regarding the points raised by the petitioners in respect of these it is alleged by the opposite parties that Government are examining these rules afresh in the light of the contest raised by the petitioner.
(ix) Rule 39(9): It is not hit by Article 19(1) (e), (f) of the Constitution. All that is provided there is that collection of money from the workmen inside the premises of the undertaking and the colony should be done with the approval of the authorities. By this rule, an attempt has been made to prohibit collections not sanctioned by law within the premises of the undertaking. There is no prohibition for collection of money from the workmen who are bona fide members of the union for the lawful work to be done by a recognised union. There is absolutely no prohibition for union activities of the workmen belonging to the undertaking.
(x) Rule 39 : Sub-rule 13(c) has been framed to maintain strict discipline amongest the employees of the undertaking and to ensure smooth and efficient running of the same. The provision contained therein is absolutely necessary in the interest of the service. These provisions do not at all impinge upon or negative the fundamental rights guaranteed under the Constitution, particularly Article 19(1)(c). The employees of the undertaking are Government servants in addition to being workmen as defined under the Industrial Disputes Act. As such while they are entitled to enjoy benefits under different labour legislations applicable to them in addition to the benefits admissible to a civil servant under Government they can have no right to carry on activities subversive of discipline.
The Provision contained in the rule declaring work to rule method to be adopted by the employees of the undertaking as a misconduct is justified. It has been noticed that industrial employees very often resort to work-to-rule method to paralyse the functioning of the undertaking. This has to be avoided at any cost, particularly when the State Transport Service is to cater to the needs of the travelling public. Therefore, to avoid such deliberate concerted move on the part of the employees, 'work-to-rule' method has been declared to be a misconduct under the Rules.
Sub-rule (63) of Rule 39 has been framed in accordance with Rule 5 of the Orissa Government Servants' Conduct Rules, 1959 prohibiting Government servants from being members of or to be associated within any political parties or communal organisations. Sub-rule (63) of Rule 39 of the rules does not conflict with the provisions of the Indian Trade Union Act under which there is provision for constitution of a separate fund by a trade union for promotion of the interest of its members.
Sub-rule (65) of Rule 39 has been framed in accordance with Rule 6 of the Orissa Government Servants' Conduct Rules, 1959. Most of the employees of the undertaking, though workmen as defined in the Industrial Disputes Act, do not cease to be Government servants. Therefore, it is necessary to make provision in the service rules regarding maintenance of discipline amongst the employees. Sub-rule (65) of Rule 39 is not repugnant to the provision contained in Article 19(a) of the Constitution as it gives ample scope for development of cultural, scientific and literary activities of the employees. Under this new provision, what has been done is that contribution to different propaganda activities should not be made by the employees of the undertaking without the prior sanction of the Head of Department. It is, therefore, a reasonable restriction imposed on the activities of the employees keeping in view the interest of the State Transport Service.
(xi) Rule 41(2)(a): This allows 48 hours time to the delinquent to submit his explanation to the charges even in case of major penalties. It is, however, open to the employee to ask for an extended period of time to enable him to submit his explanation to the charge-sheet in any particular case. In fit cases, the authority may extend time for submission of explanation. This rule has been framed in order to avoid delay in disposing of disciplinary proceedings and to avoid harassment to the delinquent employees. This provision is not in conflict with the provision contained in Article 311(2) of the Constitution.
(xii) Rule 47(h): It has been framed to discourage the tendency of going on lightening strike by the employees of the undertaking. If this tendency amongst the employees is not curbed by being strictly dealt with, the continuity and efficiency of the service is bound to be adversely affected causing serious difficulties for the travelling public.
It is not correct to say as alleged by the petitioners that all the employees in the undertaking who retired prior to the introduction of the rules were given pensionary benefits. In fact, under G.O. No. 10317 dated 20-3-50 in W. & T. Department non-gazetted posts borne on the operational establishment of the service have been declared as non-pensionary and the employees holding such posts are admitted to the Contributory Provident Fund Scheme in lieu of pension. This was done since it was considered by Government that the Contributory Provident Fund Scheme would be more beneficial to the operational staff of the State Transport Service, an organisation run on commercial basis. It is true that some time before filing of these cases the employees' union raised a demand that all posts in the undertaking should be made pensionable. In pursuance to this demand, an agreement has been reached between the management and the unions that Government will consider payment of pension to all employees provided the undertaking is not converted to a Corporation. This matter is under consideration of Government and final decision has yet to be reached. In these circumstances, as mentioned above, dismissal of the writ application is claimed by the opposite parties.
8. While examining the merits of the respective contentions of the parties, certain broad factual aspects which are more or less admitted have to be borne in mind. In course of expansion of their commercial activities, the Government of Orissa provided transport service to the public in general and it is this service which came to be known as State Transport Service (Section T. S.) and was administered by the Transport Department. It is not disputed that the S.T.S. is an industry and most of its employees are workmen at defined in the Industrial Disputes Act. These workmen are simultaneously Government servants holding civil posts under the State Government. The workmen, as such are entitled to all the benefits available to an industrial worker under the various industrial laws of the country, besides the benefits of civil servants under the State. Till 28-8-1971 there was no comprehensive codified rule laying down the conditions of service of the employees belonging to the S.T.S. As Government servants the conditions of service of these S.T.S. employees used to be governed by the Orissa Service Code and other rulei, both statutory and administrative, framed by Government from time to time. As industrial workers, they were also having the protection of the various Industrial and Labour laws prevalent in the country. Necessity was gradually experienceed for a comprehensive set of codified rules laying down the conditions of service of these employees who really formed a peculiar class by themselves combining in them the characteristics of workmen plus civil servants of Government. Hence Government framed the rules which are now under challenge. The preamble of these rules reads as follows-
Whereas the conditions of service of the State Transport service employees are at present being governed by various statutory and non-statutory service rules, the provisions of some of which are in conflict or are less advantageous than those of industrial laws applicable to the employees of the State Transport Service who come under the category of industrial workmen as distinct from a large majority of Government servants employed and/or engaged in certain sections and/or branches who do not fall into the category and as it becomes necessary to codify and consolidate the conditions of service of the State Transport employees;
Now, therefore, in exercise of the powers, conferred by the proviso to Article 309 of the Constitution of India, the Governor of Orissa is pleased to make the following rules.
The preamble clearly indicates that to bring harmony between the existing service rules applicable to all Government servants and the various industrial laws, the rules have been framed for the workmen of the S.T.S. Law is well-settled that once one is appointed to a post under Government he acquires a status and his rights and duties are governed by the public law applicable to civil servants and not by agreement. The terms of service are governed by statute or statutory rules which may be unilaterally altered by Government without the consent of an employee. Therefore, it goes without saying that no prior consent of the employees of the S.T.S. was necessary before enforcing the rules.
9. There is another feature which must also be kept in view. As already indicated, the employees of the S.T.S. have peculiar characteristics ; they are both Government employees holding civil posts and at the same time workmen. They are having more advantages than pure Government servants or workmen have. Therefore, if Government as a benevolent employer frame a set of rules regulating their service conditions these rules are not appropriately to be tested by the usual standards applicable to either category independent of each other. Yet if the rules run counter to statutes holding the field, the rules have to give in. One cannot also over-look the feature that in trying to introduce a harmonious set of rules there are bound to be some rucks which would require a careful ironing out. This being the position, the only question that remains to be determined is to what extent the rules are either repugnant to the various industrial laws or violate the rights guaranteed under the Constitution, It is in this context we take up for consideration the various contentions raised by the parties.
10. Mr. S. Misra learned Counsel for petitioners first of all argues that the rules are only applicable to the employees enumerated in Schedule I attached thereto and not to all the employees of the S.T.S. In Annexure 1 of the petition, five classes of employees have been mentioned, viz., (a) Senior Station Master, (b) Station Master, (c) Traffic Manager (d) Assistant Station Master and (e) Assistant Transport Manager (Enforcement) who have been excluded from Schedule I of the rules. It is urged that the employees mentioned in Annexure 1 of the petition are motor transport workers as defined in the 1961 Act, and, therefore, they being industrial workers, there, is absolutely no reasonable basis for excluding them from the category of employees mentioned in Schedule I of the rules which purport to apply to all industrial workers. Further Schedule I of the rules includes classes of employees who cannot be called industrial workers; whereas, other non-industrial workers mentioned in Annexure 3 of the petition have been excluded. This classification is illegal and unreasonable and has no nexus to the purpose of the rules. In support of this contention, reliance is placed on a decision repotted in Purusottam Lal v. Union of India. : (1973)ILLJ407SC . In the case before the Supreme Court a Commission of Enquiry was set up by the Government of India to enquire into the emoluments and conditions of service of the Central Government employees. After the Commission submitted its report, Government issued a notification giving effect to the recommendations of the Commission. But while implementing the recommendations, the Central Government sought to exclude the petitioners in that case from the benefits. While dealing with such a case, the Supreme Court said that if Government made a reference in respect of all the Government employees and accepted the recommendations as such, it was bound to implement them in respect of all the Government employees. The non-implementation of the recommendations regarding some of the employees amounts to breach of Articles 14 and 16 of the Constitution, The decision in that case, has, therefore, no application to the cases before us. By including some of the employees within the purview of the rules the State Government does not propose to deny the advantages to the employees excluded which are admissible to them in law under the various labour laws nor any additional benefit is conferred on employees mentioned in Sch, I which are denied to other employees not included in the said Schedule. The opposite parties, however, urge in their counter that the employees excluded from the operation of the new rules are not workmen as defined in the Industrial Disputes Act and the work of the employees belonging to the class mentioned in Annexure 1 of the petition is managerial in nature. We, however, do not propose to decide the correctness of the contention raised by the opposite parties on this point, because this question can only belong into a suitable case when on account of non-inclusion of an employees in Schedule I of the rules complaint of having been deprived of any right or privilege under the law is made.
11. Regarding Rule 9 Mr. Misra raises a contention that prior to the enforcement of the rules, the ministerial staff of the S.T.S. were working for six hours a day. Under the rules, they have to work for eight hours a day. It may be remembered that the S.T.S. is an industrial undertaking of Government and as such, majority of the employees of the service are workmen as defined in the Industrial Disputes Act. Some of them are governed by the 1961 Act and some of them are governed by the Factories Act, 1948, Under Section 13 of the 1961 Act, and under Section 51 of the Factories Act, a worker is to work for 48 hours a week which when calculated after taking the weekly holiday into account comes to 8 hours of work a day. It is urged by learned standing counsel for opposite parties that the employees who are alleged to belong to the ministerial staff of the S.T.S. and are governed by the rules belong to the operational staff of the undertaking and since their work is closely connected with the employees who are workers either under the 1961 Act or under the Factories Act, for harmonious working, forty-eight hours of work per week has been prescribed as the normal working hours under Rule. 9. There is much force in the contention of the opposite parties. In the absence of any previous rule prescribing six hours of work a day for the ministerial staff of the S.T.S. and in the absence of any challenge to the allegations of fact by the opposite parties in their counter that the ministerial staff covered by the Rule 9 of the rules belong to the operational section of the S.T.S. we do not find any merit in the point raised by the petitioners.
12. Coming to Rule 10, so far as the employee coming under the category of workmen under the 1961 Act or of workers under the Factories Act are concerned, the rule provides that for overtime work they shall be paid at twice the normal rate ; whereas the employees not covered under those Act are to be paid at a lower rate. It is urged by Mr. Misra that there is no reasonable basis for this distinction. Against this, the opposite parties say that there is justification for this discrimination, because the nature of work to be done by workers who are governed by the 1961 Act or the Factories Act is different from the nature of work to be done by other employees of the S. T. S. The employees who are to be paid at a rate which is twice the normal rate for overtime work as provided in Rule 10 are mostly drivers, conductors and garage staff. The nature of work of these employees is quite different from the nature of work of others who only work in offices. In view of this difference in the nature of work Government are justified in prescribing different rates as has been done in Rule 10. We, therefore, do not find any unreasonableness in the distinction which has been made regarding payment of wages for overtime work.
13. The next challenge of Mr. Misra is against Rule 22 which according to him is repugnant to Sections 25(c) and 25(g) of the Industrial Disputes Act. While challenging this rule Mr. Misra has failed to take notice of Sub-rule (5) of Rule 22 which clearly pro-vides that in case of retrenchment and layoff, the employees shall be given the benefits as provided in the Industrial Disputes Act, Lay-off has been defined, in the Industrial Disputes Act. Therefore, whenever there has been failure, refusal or inability on the part of Government to give employment to a workman due to reasons as provided in the Industrial Disputes Act, in spite of any provision to the contrary in Rule 22 the workman laid-off or retrenched as contemplated in the Industrial Disputes Act shall be entitled to the benefits provided in the said Act in view of Sub-rule (5). Hence, the apprehension of the petitioners that Rule 22 adversely affects the employees of the S.T.S. and deprives them of the benefits which they are entitled to under the Industrial Disputes Act is without any foundation.
14. Rule 23(1) is attacked on the ground that prior to the commencement of the rules the employees of the undertaking were enjoying 23 days as holidays under the Negotiable Instruments Act, 2 days as local holidays and 4 days as optional holidays during a year and that under the rules the total number of holidays has been reduced to 7 days only. The Orissa Industrial Establishment (National and Festival) Holidays Act (Orissa Act 22 of 1959) provides for 3 National holidays and 4 optional holidays for Hindus, Christians and Muslims. The total number of holidays, therefore, under the said Act comes to 7 days. Under the impugned Rule 7 days have been provided, out of which 3 are National holidays to which each employee is entitled and 4 are optional holidays. The S.T.S. is an industrial establishment. Therefore, these employees are only entitled to 7 holidays in a year as provided under Orissa Act 22 of 1969. The vires of the provisions contained in Orissa Act 22 of 1969 not having been challenged, the petitioners) grievances on this score is without any basis. The petitioners cannot have all the benefits. They must not forget that advantages and disadvantages go together and having derived certain advantages, the workmen must agree to be subjected to such curtailment.
15. Sub-rule (5) of Rule 23 of the Rules provides that if a festival or National holiday falls on a Sunday or on any other weekly holiday the employee concerned shall be entitled to only for one day holiday and no alternative holiday will be granted either before or after that day. This is objected to by saying that it is repugnant to Section 53 of the Factories Act. A reference to Section 52 of the said Act shows that each adult worker is entitled to one day holiday in a week. According to Section 53 of the Act, where as a result of the passing of an order or the making of a rule under the provisions of the Act exempting the factory or the workers herein from the provisions of Section 52, a worker if deprived of any weekly holiday for which provision is made in Section 52, he shall be allowed a compensatory holiday. In the cases before us, an employee of the S.T.S. is not deprived of his weekly holiday if that day falls on a festival or National holiday. Therefore, the law is provided in Section 52 of the Factories Act which clearly lays down that in case a worker is made to work on a weekly holiday he shall be compensated if not violated by the new rule at all and hence Mr. Misra's contention has to be overruled.
16. Regarding Sub-rules (6) and (7) of Rule 25 challenge has been made by the petitioners by saying that the provisions contained therein are less advantageous, but no attempt has been made to substantiate the same. We are, therefore, of the view that the petitioners have not been able to make out a case so far as the provisions in the rules regarding casual leave is concerned.
17. The next attack is with regard to Sub-rules (2) and (4) of Rule 27. The case of the petitioners regarding these provisions is that previously leave on half average pay could accumulate in favour of an employee in the S.T.S. without any limit, but as per Rule 27(2) limit has been put on such accumulation. Further, under Sub-rule (4) of Rule 27, the authority before sanctioning half average pay leave or commuted leave has to be satisfied that the employee applying for such leave shall return to duty on expiry of the leave. This provision, according to Mr. Misra, gives arbitrary power to the authority without a guide line. It may be remembered that the Orissa Leave Rules, 1966 were governing the employees prior to the enforcement of the rules. Under the Orissa Leave Rules, 1966, the maximum period of leave that could accumulate in favour of a Government servent was 240 days. Under Rule 26(3) of the rules, the total number of days of leave on average pay that would accumulate in favour of an employees is 180 days. Under Rule 27(2) the total number of days of leave on half average pay which will accumulate in favour of an employee is 80 days. Therefore, the maximum period of leave as provided in the Orissa Leave Rules, 1966 has been kept in tact. Regarding the objection to Rule 27(4), certain general provisions regarding leave rules obtaining prior to the introduction of the rules may be noticed in this connection. Under Rule 131 of the Orissa Service Code, leave cannot be claimed as of right. When exigencies of public service so require, discretion to refuse or revoke leave already granted of any description is reserved with the authority empowered to grant. Further under the Orissa Leave Rules, 1966, there is provision that neither commuted leave nor leave not due can be granted unless the authority empowered to sanction leave is satisfied that there is reasonable prospect of the Government servant returning to duty on the expiry of the leave. Before introduction of the Rules, there is no dispute that the employees of the S.T.S. used to be governed by the Orissa Leave Rules, 1966. That being so, it cannot be said that the employees have been prejudicially affected by Sub-rule (4) of Rule 27 of the Rules.
18. Coming to Rule 30 regarding grant of extraordinary leave, the objection is that the employees of the S.T.S. were entitled to extraordinary leave for five years prior to the commencement of the Rules, and so, the limitation prescribed in the Rules is less advantageous. Mr. Misra, however, has not been able to point out any specific provision under which the employees had the advantage of availing extraordinary leave for a period of five years. We have not been shown any such provision in the Orissa Leave Rules, 1966 which was applying to the employees previously. Extraordinary leave is only admissible when no other leave is due or when the employee asks for extraordinary leave in writing as per the provisions contained in the Rules as well as in the Orissa Leave Rules, 1966. True, under the Rules, the period of extraordinary leave that can be granted at a time has been limited to three months. This does not mean that in all during his service career an employee is entitled to extraordinary leave for three months only. That apart, under the old leave rules governing the employees, there were certain restrictions regarding the duration of extraordinary leave that could not be granted at a stretch. Looking at the provisions regarding extraordinary leave, both in the Rules as well as the Orissa Leave Rules, 1966, we do not find that the employees have been seriously prejudiced by the introduction of the impugned Rules.
19. Rules 36(4) and 38 of the Rules relate to the absence of an employee of the S.T.S. from duty beyond the period of leave granted to him or without previous sanction of the authority to grant him casual leave. The petitioners' case regarding these Rules, as stated in their applications, is that they are less advantageous than the corresponding pre-existing Rules. It has not been indicated as to how these rules are less advantageous. The opposite parties in their counter say that these rules are being re-examined by Government. Mr. Misra raised serious objection to the provisions contained in these rules to the effect that an employee remaining absent beyond the period of leave granted shall be deemed to have lost his lien to the post unless he returns within 8 days of the expiry of his leave and explains to the satisfaction of the authority granting leave the reasons of his inability to return in time; that whenever such absence exceeds 8 days, the employee shall be presumed to have abandoned his job and to have left the services of his own accord from the first day of such absence and that an employee remaining absent from duty without permission for a continuous period of 8 days or more will be deemed to have abandoned his service in the undertaking of his own accord. No doubt, absence without leave is a misconduct, but to punish such a misconduct in the manner indicated in the aforesaid provisions would amount to find the delinquent guilty without giving him an opportunity to explain. 'Lien' as defined in the Orissa Service Code is 'the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. A permanent Government servant means 'a Government servant who holds a lien on a permanent post'. A Government servant on substantive appointment to any permanent post acquires alien on that post. Therefore, he while holding substantively a permanent post retains a lien on that post even while on leave. Subject to certain exceptions as provided in the Orissa Service Code a Government servant's lien on a post cannot be terminated even with the consent if the result will be to leave him without a lien. Under Rule 144 of the Orissa Service Code, a Government servant who remains absent after the end of his leave is not entitled to leave salary for the period of such absence and wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of Rule 54. These being the corresponding provisions in the Orissa Service Code regarding leave, it would amount to violation of the principles of natural justice if an employee belonging to the S.T.S. loses his lien to the post held by him and is taken to have abandoned the job as provided under Rules 36(4) and 38 of the Rules. It is probably on account of this that the opposite parties have said in paragraph 18 of their counter that the said Rules are being re-examined by Government Removal of a Government servant from service because he has overstayed his leave is illegal evrn though Ms conditions of service provide for such removal. Constitutional protection of Article 311 cannot be taken away by saying that as per the rules laying down his conditions of service the Government servant gives up the employment. A person is entitled to be in service if he wants till his service is terminated according to law. The impugned Rules,viz., 36(4) and 38 provide for automatic termination of service of an employee for overstaying his leave or for remaining absent without permission. Such a termination is nothing but removal from service without taking recourse to the procedure laid down in Article 311 of the Constitution, Jai Shankar v. State and N. Mohanty v. Union of India (Supra). In our view, therefore, Rules 36(4) and 38 of the Rules are ultra vires the Constitution and have to be declared invalid.
20. On the question of maintenance of discipline, Rule 39 enumerates acts and omissions of an employee belonging to the undertaking which are considered as misconduct. Sub-rule (9) says that collection of money inside the premises of the undertaking and colony for purposes not approved by the competent authority is a misconduct. This provision is attacked by the petitioners, because it violates the rights given to the employee under the Trade Unions Act, 1926. Under this Act, constitution of a general fund as well as a separate fund for political purposes is recognised. It is, therefore, argued that if money is collected for these funds by an employee without previous approval of the competent authority, he would be liable to be proceeded against for misconduct. Further, it is contended that the language used in Sub-rule (9) of Rule 39 of the Rules is so vague that it may include a case where an employee approaches another for a loan or for repayment thereof. In this connection, Mr. Misra, besides relying on the provisions of the Trade Union Act, 1926, also relies upon Article 19(1) (c) and (f) of the Constitution, According to him, the Constitution guarantees to citizens to form associations or unions subject to the limitations contained therein. Sub-rule (9) of Rule 39 of the Rules does not fulfil the requirements of Sub-articles (4) and (5) of Article 19 of the Constitution, and hence, should be struck down. There is sufficient force in these contentions. In our view, collection of money for any lawful purpose whatsoever within the premises of the undertaking or in the colony without prior approval cannot constitute a misconduct. As long as collection of money is not for any purpose prohibited by law and does cot interfere with the smooth working of the undertaking, an employee of the S.T.S. cannot be penalised for the same. These provisions, therefore, have to be struck down. It is, however, open to the opposite parties to substitute these provisions by others keeping in view the rights of the employees guaranteed to them under the Constitution and under other laws applicable to them.
21. Mr. Misra then attacks Sub-rule 13(c) of Rule 39. by saying that the petitioners have the fundamental right to form associations or unions, the purpose of which is to educate the employees regarding their rights and the methods to acquire and protect them. That being so, an employee has the right to organise and address meetings to be attended by other employees and to tell them what are their rights and how to protect them. Such an act is bound to be linked with the general relationship between the appointing authority and the appointee and may have direct connection with the contentment and comforts of the workmen or bearing on the working of the concern. Therefore, if such an act is sought to be prevented by Sub-rule 13(c) of Rule 39, the said provision has to be taken as infringing the legal rights of the workers. It is further argued by Mr. Misra that under certain circumstances the workers may go on strike. Before taking resort to such a strike, it may be necessary to organise meetings of the workers to tell them about their rights and to pursuade them to join a strike. In such an event Government may on the basis of the aforesaid provision in the Rule take the act of a worker as an act of misconduct. This argument of Mr. Misra does not take notice of the opening words in the Rule which reads thus:
Commission of any act subversive of discipline or good behaviours.
Therefore, before an act is taken as misconduct, it must be an act subversive of discipline or good behaviours. An act of organising or addressing a meeting for purposes that are lawful can never be said to be an act subversive or discipline or good behaviour. We do not, therefore, accept the contention of the petitioners that Sub-rule (13)(c) of Rule 39 of Rules is ultra vires the Constitution or is repugnant to any law. Of course, there may be cases where these provision may be abused. In such an event, it will be open to an employee who becomes victim of abuse of powers to ventilate his grievance in an appropriate forum. We cannot accept the contention on the mere apprehension of a future abuse. On the other hand, we are to assume that the appropriate authority would follow the law in its true spirit.
22. Sub-rules (19) and (50) of Rule 39 of the Rules prohibit demonstrations within the premises of the workshop, garage or press or any premises owned by the undertaking, conducting meetings on the undertaking's land without prior written permission of the officer-in- charge, 'Gherao' ' Dharana' hunger strike, protest fast, work to rule and refusal to do overtime work except on grounds of health. The attack of the petitioner is to the whole of Sub-rule (19) and to the provision relating to work to rule contained is Sub-rule (50) of Rule 39. No doubt, the employees have a right to assemble peaceably and without arms as provided in Article 19(b) of the Constitution, This constitutional guarantee does not mean that the workers have the right to demonstrate and to hold meetings on another's land. Hence, the prohibitions contained in Sub-rule (19) of Rule 39 can by no stretch of imagination be said to be an infringement of the fundamental right guaranteed under Article 19(b) of the Constitution. Regarding the prohibition relating to 'work to rule' contained in Sub-rule(5;)), Mr Misra's contention is that one cannot be penalised if he works according to rules. To punish one because he works as per rules would be against all canons of law. We quite realise the fact that if resort is taken to the work to rule method, the effect may be to bring the undertaking to a standstill. It is also possible that this provision may in certain cases put an honest worker to harassment of a disciplinary proceeding, but the retention of this provision in the Rules cannot be challenged as ultra vires. Its abuse in a given case may be open to challenge. We hope, Government would always behave as an ideal employer.
23. Sub-rules (63) and (65) of Rule 39 of the Rules are challenged on two grounds. Firstly, it is said that under the Trade Union Act, 1926 a registered Trade Union is entitled to constitute funds for political purposes. The objects for which such funds can be utilised are enumerated in Sub-section (7) of Section 16 of the said Act. Therefore, according to the petitioners political activities are permitted under Section 16 of the Act. Hence, an absolute prohibition of any political activity as envisaged in Sub-rule (63) is contrary to Section 16 of the Trade Unions Act. Secondly, it is urged that the Constitution also guarantees the rights to freedom of speech and expression, to assemble peacefully and without arms and to form associations or unions subject to the restrictions contained in Article 19 of the Constitution. Therefore, it is urged that in view of the aforesaid provisions, Sub-rules (63) and (65) of Rule 39 of the Rules have to be struck down. These provisions are, however, similar to Rules 5 and 6 of the Government Servants' Conduct Rules which are also rules framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution. The petitioners are Government servants as well as industrial workers. In the capacity of industrial workers they are entitled to protection of certain rights provided under various industrial laws. But as Government servants they are also to be governed by the the Rules framed by Government under Article 309 of the Constitution. It is only where the provisions of these Rules framed by Government under Article 309 of the Constitution are in conflict with the provisions of industrial laws it may become necessary to examine as to which would prevail. The petitioners as Government servants prior to the introduction of the Rules used to be governed by the Government Servants' Conduct Rules and they never raised any objection to Rules 5 and 6 of the said Rules. We see no justification in this challenge of Mr. Misra.
24. The next subject of attack is Sub-rule (2)(a) of Rule 41 of the Rules. The said sub-rule provides that if an employee accused of misconduct is given a charge-sheet, he shall be given an opportunity to explain the charges framed against him within forty eight hours of receipt of the charge-sheet. It is submitted by Mr. Misra, learned Counsel for petitioners that the aforesaid provision relates to cases both major and minor penalties. In case of a major punishment, the period prescribed being so short amounts to denial of reasonable opportunity and is hence unconstitutional being contrary to the spirit of Article 311 of the Constitution. This argument of Mr. Misra has substance, inasmuch as, Article 311(2) of the Constitution sanctions a reasonable opportunity. The corresponding provision under the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 allows upto thirty days' time. We see a welcome sign in the attempt to expedite disciplinary proceedings but they should not be disposed of as to amount to denial of natural justice. We are of the view that a longer and reasonable time should be provided and the delinquent should not be called upon to ask for extension of time and fall upon the caprice or whim of the disciplinary authority.
25. Rule 47 of the Rules deals with termination of the services of an employee belonging to the S.T.S otherwise than by way of punishment. It is provided therein that if an employee's service is terminated on attaining the age of superannuation, for continuous absence on grounds of ill-health for one year or more, on an employee being declared medically unfit, on grounds of adverse remarks revealed in course of verification of antecedents where an employee has been appointed subject to such verification, for failure to pass departmental test within the number of chances given for the purpose, on any other ground stipulated in the contract of employment, if any of the information given by an employee in his application for the post is subsequently found to be false and for joining a lightning strike or acting in furtherance of such a strike, the said termination would not amount to punishment. It is urged by Mr. Misra with regard to the provisions contained in this Rule that termination of an employee's service on the ground that a condition stipulated in the contract of employment has been violated or on the ground that the information given by him in his application for the post is subsequently found to be false or for joining a lightening strike or acting in furtherance of such a strike amounts to a stigma. Therefore, since the Rule does not provide for any enquiry or notice to show cause against the termination, the provisions of Article 311 of the Constitution are violated. Further, it is urged that Sub-rule (3) of the said Rule provides that the reasons for such termination will be communicated to the employee, if he so desires, and this communication is subject to the condition that the authority empowered to communicate the reasons may refuse communication, if in its opinion, such communication will directly or indirectly expose any person to civil or criminal proceedings at the instance of the employee whose service is terminated. This provision also, according to Mr. Misra, is unconstitutional being hit by Article 311 of the Constitution. On the other hand, it is contended by the opposite parties that Rule 47(1)(h) of the Rules has been framed in order to discourage the tendency of going on a lightning strike by the employees of the S. T. S. and if such tendency is not strictly dealt with, continuity and efficiency of the S.T.S. will be hampered and the travelling public will be put to serious difficulties. Law is well-settled that removal of a Government servant from service without taking recourse to the constitutional procedure laid down in Article 311 is illegal even though it is provided by the service regulation. Once one is appointed to a post permanently, he acquires a right to the same. Therefore, when his services are terminated, such termination would either amount to his dismissal or removal from service. Ordinarily, therefore, the termination would attract the provisions of Article 311(2) of the Constitution. In this view, therefore, before terminating the service of an employee of the S. T. S. on any of the grounds mentioned in Rule 47(1)(b),(c),(d), (g) and (h), the provisions of Article 311(2) of the Constitution have to be followed and hence, the rule saying that the undertaking may terminate the services of any of its employees on any of the aforesaid grounds without an enquiry must be held to be violative of the constitutional rights guaranted under the Constitution. It is not open to Government by providing any rule framed under Article 309 of the Constitution to say that termination of the services of an employee on any of the aforesaid grounds would not be a punishment. We would accordingly hold that the provision contained in Rule 47(1)(b), (c), (d), (g) and (h) empowering the undertaking to terminate the services of any of its employees without an enquiry as provided under Article 311(2) of the Constitution are illegal and ultra vires the Constitution. Regarding Sub-rule (3) of Rule 47, it is not necessary to deal with it in view of our finding about the provisions contained in Rule 47(1)(b), (c), (d), (g) and (h).
26. The last contention of the petitioners is that the Rules do not make any provision for pension. The pensionary benefits which were being enjoyed by the employees prior to the introduction of the Rules, according to the petitioners, have been taken away. Pension, it is said, is property, and, therefore, when the employee have been deprived of their pension under the Rules, it should be held that Article 19(1)(f) and 31 of the Constitution have been violated. As against this, it is urged by the opposite parties that all the employees of the S. T. S. who retired prior to the introduction of the Rules in question were given pensionary benefits. Under G.O. No. 10317 dated 20-3-50 in S. & T. Department, non-Gazetted posts borne on the operational establishment of the S.T.S. were declared as non-pensionable posts and the employees holding such posts were admitted to the Contributory Provident Fund Scheme in lieu of pension. This was done as it was considered that the Contributory Provident Fund would be more beneficial to the operational staff. Sometime before, the employee's union raised a demand that all posts in the S.T S. should be made pensionable. As a consequence of this demand, an agreement has been reached between the management and the union that Government will consider payment of pension to all the employees of the S. T. S. provided the S. T. S. is not converted into a Corporation. Hence, according to the opposite parties, the question of granting pensionary benefits to the employees of the S. T. S. including the petitioners is under consideration of Government. In this view of the matter, it would not be appropriate for us at this stage to give a decision on the question of validity or otherwise of the provisions relating to the introduction of Contributory Provident Fund Scheme in place of the scheme for payment of pension.
27. In the result, therefore, Rules 36(4), 38, 39(9), 41(2)(a) and 47(1)(b), (c), (d), (g) and (h) are declared to be invalid and the Opposite parties are directed not to enforce them. The writ applications are accordingly allowed in part. In the peculiar circumstances of the cases, the parties are directed to bear their own costs.
R.N. Misra, J.
28. I agree.