Andhra HC (Pre-Telangana)
G.M.N.V. Prasada Rao vs The Managing Director, Andhra Pradesh ... on 29 August, 1988
Equivalent citations: [1989(59)FLR761], (1989)IILLJ90AP, (1989)IILLJ90SC
Author: K. Ramaswamy
Bench: K. Ramaswamy
JUDGMENT
1. As Senior Store Supervisor at Vijayawada, petitioner, while on leave from December 1, 1982 to January 15, 1983, contested on December 10, 1982, as a candidate on behalf of the Communist Party of India at the General Elections as a Member of the Legislative Assembly. Obviously, he lost in the election. Thereafter, he cancelled 5 days leave to his credit and sought to join duty in January, 1983. A charge-memo was given to him on January 12, 1983 to explain why he should not be removed from service on the ground that he contested elections contrary to Regulation 23(1) of the Andhra Pradesh State Road Transport Corporation Employees (Conduct) Regulations, 1983, (for short 'the Conduct Regulations'), and also Note 2(xv) to Regulation 9(1) of the Andhra Pradesh State Road Transport Corporation Employees (Classification, Control and Appeal) Regulations, 1967, (for short 'the CCCA Regulations'). The petitioner submitted his explanation. An enquiry was conducted giving reasonable opportunity to the petitioner. The petitioner was issued second show-cause notice. On consideration of the material and the explanation the petitioner was removed from service by the order dated October 31, 1984 which was confirmed on appeal by order dated April 9, 1985. Assailing the legality thereof the writ petition was filed.
2. Sri S. Ramachandra Rao, the learned counsel for the petitioner, contends that Article 326 of the Constitution accords the right to participate as an elector in the elections to the Legislative Assembly or Parliament which includes a right to contest as a candidate. Articles 102 and 191 provide only the disqualifications. The right to contest at an election by a Corporation employee like the petitioner has not been prohibited under the Constitution and the Preamble to the Constitution accords the right to Political Justice. Where the Constitution intends to provide disqualification, like the one under Article 58(2) under which an employee in the service of the State cannot contest to the office of the President of India, it made an express provision to that effect, and there is no express disqualification to contest elections to the Legislative Assembly by a Corporate employee. Regulation 23(1) of the Conduct Regulations is in violation of his right enshrined under Article 326 read with Articles 102 and 191 of the Constitution. Sections 44 and 45 of the Road Transport Corporations Act (Act LXIV of 1950), for short 'the Act', provides power to make Rules and Regulations by the State Government and the Corporation respectively inter alia regarding the conditions and manner of appointment of members of the Corporation and the administration of the affairs of the Corporation. No express embargo was created under the Act prohibiting an employee of the Corporation to contest an election. Therefore, Conduct Regulation 23(1) runs beyond the power conferred under the Act. Therefore, in either event it is ultra vires of the power of the Corporation. The contention apparently is alluring but lacks legal force.
Regulations 23(1) provides thus :
"Taking part in Policies and Elections : (1) No employee shall be a member of or be associated with any political party nor shall he take active part in politics or any political demonstration.
(2) If any question arises whether any movement or activity falls within the scope of this Regulation, the decision of the Managing Director thereon shall be final."
A reading of this Conduct Regulation Provides that an employee shall not be a member of any political party nor he be associated with any political party nor shall he take active part in politics nor in political demonstration. Regulation 28(xxxii) of the Conduct Regulations provides that violating any specific Regulation or instruction of the Corporation in force is a misconduct. Note (2)(xv) to regulation 9(1) of the CCCA Regulations says that taking part in subversive or political activities or activities prohibited by any law in force or made punishable by any law in force or other activities prejudicial to the interests of the Corporation constitutes serious misconduct. A conjoint reading of the relevant Conduct Regulations and the CCCA Regulations clearly postulates that an employee of the Corporation is prohibited to take part of politics or contest an election as part of political activity and it is serious misconduct within the meaning of note 2(xv) to Regulation 9(1) of the CCCA Regulations. In State of Uttar Pradesh v. Babu Ram , the Supreme Court held that the rules made under proviso to Article 309 of the Constitution of India have got statutory force. Admittedly, the Regulations have been made in exercise of the power under Section 45 of the Act. Section 45(1) of the Act gives power to the Corporation to make Regulations with the previous sanction of the State Government not inconsistent with the Act and the Rules made thereunder for the administration of the affairs of the Corporation. Section 45(2)(c) of the Act reads as follows :
"45(2). In particular, and without prejudice to the generally of the foregoing power, such regulations may provide for all or any of the following matters, namely :-
(a).......
(b).......
(c) the conditions of appointment and service and the scales of pay of officers and servants of the Corporation other than the Chief Executive Officer or General Manager and the Chief Accounts Officer;"
Admittedly, the Conduct Regulations have been made with the previous sanction of the Government as noted hereinbefore and Regulation 23(1) of the Conduct Regulations clearly puts an embargo on the right of the employee to participate in political activity or to contest as a member of the Legislature or local authority. In P. Prasad Rao v. APSRTC (W.P. No. 3446 of 1982, October 6, 1987) the question of the ultra vires of Regulation 23 of the Conduct Regulations has come up for consideration in a case where a Controller of the Corporation has contested as a Councilor of the Municipality and thereafter as a Member of the Legislative Assembly. The action was taken to remove him from service on the ground of misconduct in contesting the election violating the statutory regulations. In that context, this Court, by judgment dated October 6, 1987, has held thus :
"Statutory Rules prescribe prohibition to participate or contest an election....... Therefore, an employee does not have any fundamental right to contest an election to the local authority while continuing to be an employee of the Corporation."
In that context, it was held that since Section 45 of the Act gives power to the Corporation to make the Regulations Prescribing Rules prohibiting participation in the elections to the Legislature or local authority as misconductl, Regulation 23 of the Conduct Regulations is within the power of the Corporation.
3. It is undoubtedly true that in that case the question of angulating in the context of Articles 102, 191 and 326 of the Constitution did not come up for consideration. Article 326 in Part XV of the Constitution of India give entitlement to be registered as a voter to every citizen who is not less than 21 years of age as on such date at any election to the House of People and to the Legislative Assembly of every State. Therefore, undoubtedly Article 326 gives to every citizen, including an employee of the Corporation, right to be registered as a voter at any such elections provided he is a citizen of India and he is not less than 21 years of age as on such date. But the question is whether the right emanating therefrom, namely, the right to be registered as a voter, accords to a corporate employee the right to contest an election to the Legislative Assembly or Parliament. Undoubtedly, Article 58(2) clearly puts a disqualification for election as the President of India to a person who holds any office of profit under the State or Central Government or under any local or other authority subject to control of the Central or State Governments and no similar prohibition was engrafted in Art. 102 as a disqualification to contest at member of either House of Parliament or under Article 191 to the Legislative Assembly or the Legislative Council of a State, expect under clause (e) of the respective Articles, namely, if he is so disqualified by or under any law made by Parliament. No doubt, no such law has been made by Parliament in regard to prescribing disqualification to a corporate employee from contesting election. The question then is whether the Corporation is prohibited thereby from prescribing any disqualification to an employee of the Corporation to contest an election or to participate in the political activity. It is now well settled right from N. P. Ponnu Swami v. The Returning Officer, Namakal Constituency that right to contest to Assembly or Parliament is not a civil right but is a creature of the statute or special law and must be subject to the limitations imposed by it. In Jamuna Prasad v. Lochi Ram , it was held that persons have no fundamental right to be elected members of Parliament. If they want they must observe the rules. In Sakhawant Ali v. State of Orissa , the Orissa Municipalities Act prescribed the disqualification to a Standing Counsel of a Municipality to contest as a Councilor. The Advocate, Sakhawant, who was admittedly a Standing Counsel, challenged Section 16(1) of the Orissa Municipalities Act on the touchstone of Article 19(1)(g) of the Constitution. It is contended that he has got fundamental right to practice as an advocate and the disqualification prescribed under Section 16(1) of the Orissa Municipalities Act is ultra vires the power in Articles 14 and 19 of the Constitution. While considering that question it was held Article 14 forbids classification but does not forbid reasonable classification for the purpose of legislation. That classification, however, cannot be arbitrary and must rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect of which the classification is made. In other words, the classification must have a reasonable relation to the object or the purpose sought to be achieved by the impugned legislation. The classification under Section 16(1) of the Orissa Municipalities Act has a reasonable relationship to the object and purpose sought to be achieved and hence, the disqualification prescribed for the election is not violative of Article 14 nor violates his right to practise profession under Article 19(1)(g) of the Constitution, as it was a reasonable restriction imposed thereunder. In K. Suryanarayana v. District Collector, Eluru 1976 (1) APLJ 225 (para 21) Section 21(c) prohibits election to a Committee of a member who was elected thrice consecutively. Its validity was challenged on the anvil of Article 19(1)(c) (right to form associations or unions). It was held by the Full Bench that the right to contest emanated from the Act. That right cannot be claimed otherwise than under those provisions. The Act confers certain rights and privileges and also imposes certain obligations and restrictions. The persons claiming rights under the Act are also bound by the restrictions imposed thereunder. Accordingly it was held that Section 21(c) is not ultra vires. It is common knowledge that even for right to contest election to Parliament or Legislative Assembly, Representation of peoples Act, 1950 prescribes disqualification. The Gram Panchayats Act, Zilla Parishad and Mandal Praja Parishad Act, Co-operative Societies Act, and Municipal Laws prescribe disqualification. The Government in exercise of power under proviso to Article 309 of the Constitution prescribed Government Servants Conduct Rules. Rule 14 prohibits a Government servant to contest an election. Contesting an election while holding an office of profit is a disqualification. Therefore, I have no hesitation to hold that the right to enroll as voter does not include a right to contest at an election to the Parliament or Legislative Assembly of a State. It is subject to the law and the relevant Statutory Rules.
4. Sri S. Ramachandra Rao, has placed reliance on D. R. Gurushantappa v. Abdul Khuddus Anwar and others 1969 (1) SSC 446 Therein, the question was whether an officer under a company in which the Government has control is disqualified to contest an election. In that context, while considering the scope of Articles 58, 102 and 191 of the Constitution, Bhargava, J, speaking for their Lordships of the Supreme Court, has held that there is no prohibition for contesting an election while being a corporate employee. The power to prescribe disqualification under the Statutory Regulations did not come up for consideration.
5. In view of the fact that there is no express prohibition under Article 191 of the Constitution, it was held that he was not prohibited from contesting in the election. Equally, in Abdul Shakur v. Rikhab Chand it was held that the Office of Manager of Madarsa Durga Khawaja Sahib Akbari is not an office of profit and, therefore, the holder thereof is not disqualified to contest an election to Parliament under Article 102(1)(a) of the Constitution. Therefore, those decisions are assistance to the facts in this case.
5. In view of the above, it must be held that though Articles 58, 102 and 191 deal with qualifications with regard to the citizens as a whole the Corporation with a view to regulate the conduct of its employees prohibits its employees to participate in the elections under Regulations 23 of the Conduct Regulations. Section 45(2)(c) of the Act expressly empowers the Corporation to make Regulations prescribing conditions of service, and the conditions of service include prohibition from participating in the elections with a view to maintain discipline among the corporate employees, that they do not participate or take part in political activity. The Conduct Regulations prescribe the prohibition in political activities or contest at an election while being a member of the Service. In Narendra Kumar v. Union it was held that restriction included prohibition. Therefore, prohibition is a reasonable restriction and a valid classification of the entire class of the employees of the Corporation. Therefore, it is not violative of either Art. 146 the Constitution or ultra vires of the power of the Corporation. It is not necessary that the Act itself should provide such a prohibition. Since the power has been conferred expressive to prescribe conditions of the service of the employees under Section 45 of the Act, regulation 23 of the Conduct Regulations being part of the Statutory Rule is perfectly within the power of the Corporation and is valid. Accordingly, I hold that Regulation 23(1) the Conduct Regulations is not ultra vires of the power of the Corporation and it does not offend the right to equality or Political Justice enshrined in the Preamble to the Constitution.
6. The writ petition is accordingly dismissed. WPMP No. 6855 of 1986 to implead Respondents 4 and 5 is also dismissed. No costs.