Andhra Pradesh High Court - Amravati
United Electricity Contract Workers ... vs The State Of Andhra Pradesh on 1 September, 2023
Author: K. Sreenivasa Reddy
Bench: K. Sreenivasa Reddy
THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY WRIT PETITION Nos.21748 OF 2023 and 22301 of 2023 COMMON ORDER:
Writ Petition No.21748 of 2023 is filed with the following prayer :
"...it is hereby prayed that this Hon'ble Court may be pleased to issue a Writ, Order or Orders more particularly one in the nature of Writ of Mandamus declaring the action of Respondent No.3 in refusing permission to peacefully stage dharna at Dharna Chowk or Gymkhana Grounds, Vijayawada City, NTR District, on 28.08.2023 at 10.00 A.M. to 4.00 P.M., as being illegal, arbitrary and unconstitutional and consequently direct the Respondents to permit the Petitioners to peacefully stage a dharna, at Dharna Chowk or Gymkhana Grounds, Vijayawada City, NTR District, on 28.08.2023 at 10.00 AM to 4.00 PM, ..."
2. One Mr. M.Balakasi, s/o. M.Ch.Kasaiah, claiming to be General Secretary of 1st petitioner Union, filed writ affidavit on behalf of 1st petitioner Union and on behalf of petitioners 2 to 4, with their consent. 2
3. Petitioners 1 to 3 are registered unions pertaining to employees working in Electricity Department and 4th petitioner herein is an unregistered union comprising all the above 3 registered unions and one Andhra Pradesh Power Employees Union. The petitioners submit that they were not extended the benefit of 11th PRC and the contract employees are not being paid their salaries directly to their accounts. Apart from that, their demand to regularize services of contractual employees is not being taken into consideration. Petitioners came to know from a news clipping that the Power Joint Action Committee and Department of Energy, Transco, Genco and the Discoms wanted to sign a Wage Settlement bilaterally under Section 18 clause 3 of the Industrial Disputes Act, 1947 on 11.08.2023 and thereafter they want to register the Wage Settlement before the Commissioner of Labour, which is the authority to settle Wage Settlement. It is stated that more than 90% of the electricity employees, Engineers and contractual labourers of the Department of Energy are against the abovesaid Wage Settlement arrived 3 among the above parties. According to them, it is detrimental to the employees and other stake holders. Hence, all the petitioners formed the abovesaid A.P. Vidyuth Trade Unions, Struggle Committee (4th petitioner) comprising petitioners 1 to 3 and the Andhra Pradesh Power Employees Union, to fight for implementation of 11th PRC and also for payment of salaries of the contractual employees directly into their accounts and non- regularization of services of contractual employees, and it is their whole intention of the employees is to peacefully demonstrate their protest collectively.
It is further stated that on 11.08.2023, the petitioners 1 to 4 made a representation to 3rd respondent seeking permission to the said Dharna on 17.08.2023. But, as 3rd respondent did not grant any permission till 15.08.2023, the authorized representatives of petitioners postponed the Dharna to 28.08.2023 and again made an application on 15.08.2023. Complaining non-consideration of their representation dated 15.08.2023, Writ Petition No.21748 of 2023 was filed. Thereafter, the Assistant Commissioner of 4 Police, North Division, Vijayawada city passed Order dated 26.08.2023, rejecting the permission. Challenging the same, Writ Petition No.22301 of 2023 has been filed.
4. Heard the learned counsel for the petitioners and the learned Government Pleader for Home appearing for respondents. Perused the record.
5. Learned counsel for the petitioners in both the Writ Petitions contended that there would be only congregation of the employees in a peaceful manner at one particular place. He submits that they would not obstruct any one and would not make any inflammatory speeches. He submits that except conducting a meeting, the petitioners would not in any way stage procession or adopt any other means, which are likely to cause any breach to the public at large. He further contended that under Article 19 (1) of the Constitution of India, it is a Fundamental Right to conduct meetings in a peaceful manner, and the action of respondent No.4 in rejecting the permission by 5 way of the impugned Order is violative of Article 19 of the Constitution of India, and hence, prays to allow the Writ Petitions.
6. On the other hand, the learned Government Pleader for Home contended that right guaranteed under Article 19 of the Constitution of India is not an absolute right and the same is subject to restrictions specified therein. He submits that members of petitioners are public servants working in essential services and they would come within the purview of APESMA, 1971 and are governed by the Code of Conduct, and the employees who claim affiliation to the petitioners Union have no legal right to insist to give permission for conducting Dharna/ demonstration.
The learned Government Pleader further submitted that there is a credible information to the police that there is likelihood of breach of peace and tranquility and commission of an offence by virtue of the gathering. The Government passed orders prohibiting strikes in all the 3 6 distribution companies (APPDCL, APSPDCL AND APCPDCL) and A.P. Genco.
The learned Government Pleader relied on a decision in M.H.Devendrappa v. Karnataka State Small Industries Development Corporation1, wherein it is held thus:
(paragraphs 10 and 16).
"10. The right to freedom of speech and expression is subject to reasonable restrictions under Article 19(2). Such restrictions can be in the interest of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Similarly, Article 19(1)(c) is also subject to reasonable restrictions under Article 19(4). Such reasonable restrictions can be made, inter alia, in the interest of public order or morality. Article 19(2) or 19(4) may not be directly relevant in the present case in view of the provisions contained in Rule 22 of the Service Rules. Rule 22 of the Service Rules is not meant to curtail freedom of speech or expression or the freedom to form associations or unions. It is clearly meant to maintain discipline within the service, to ensure efficient performance of duty by the employees of the 1 (1998) 3 SCC 732 7 Corporation, and to protect the interests and prestige of the Corporation. Therefore, under Rule 22 an employee who disobeys the Service Rules or displays negligence, inefficiency or insubordination or does anything detrimental to the interests or prestige of the Corporation or acts in conflict with official instructions or is guilty of misconduct, is liable to disciplinary action. Rule 22 is not primarily or even essentially designed to restrict, in any way, freedom of speech or expression or the right to form associations or unions.
A rule which is not primarily designed to restrict any of the fundamental rights cannot be called in question as violating Article 19(1)(a) or 19(1)(c). In fact, in the present proceedings the constitutional validity of Rule 22 is not under challenge. What is under challenge is the order of dismissal passed for violating Rule 22 when the impugned conduct which violates Rule 22 is held out as an exercise of a right under Article 19(1)(a) or 19(1)(c).
...
... In the present case, joining government service has, implicit in it, if not explicitly so laid down, the observance of a certain code of conduct necessary for the proper discharge of functions as a government servant. That code cannot be flouted in the name of other freedoms. Of course, the courts will be vigilant to see that the code is not so widely framed as to unreasonably restrict fundamental freedoms. But a 8 reasonable code designed to promote discipline and efficiency can be enforced by the government organisation in the sense that those who flout it can be subjected to disciplinary action."
Relying on the aforesaid judgment, the learned Government Pleader strenuously contended that the employees of the petitioners union, being public servants, would not venture to stage Dharna/demonstration as their services would come within the purview of APESMA, 1971.
The learned Government Pleader further submitted that all the employees would intend to go on en masse leave and by virtue of the said act, the essential services would get disturbed and public at large would get affected by such acts of the petitioners, and 4th respondent, after considering the relevant factors, passed a reasoned order rejecting the permission.
7. By virtue of the order dated 26.08.2023, 4th respondent in Writ Petition No.22301 of 2023 rejected the permission to conduct Dharna on 28.08.2023 from 10.00 9 AM to 4.00 PM at Dharna Chowk or at Gymkhana Grounds, Vijayawada stating that 28.08.2023 happens to be a Monday, which is a working day. It is further stated in the said Order that services of the employees/workers, outsourcing staff, contract workers in the power and in the Transmission Corporation of Andhra Pradesh Limited and three Distribution Companies (APPDCL, APSPDCL and APCPDCL) and A.P. Genco are essential services and fall within the ambit of Andhra Pradesh Essential Services Maintenance Act, 1971 (APESMA), and that the proposed Dharna is scheduled to be organized covering the employees of the essential services of entire State of Andhra Pradesh and all the employees of the Power Corporation are likely to attend the meeting by applying mass leave or remain absence from duties without permission, which amounts to strike as defined under Section 2 (c) of the APESMA, 1971. It is further stated in the said Order that the proposed Dharna site is surrounded by residential area and situated in a busy locality, and if permission is granted for organizing Dharna 10 with huge gathering of 1000 people, it will have the potential of causing inconvenience, disturbance to the residents of that locality and for the free movements of the public and serious discomfort to the residents, and there is every possibility of causing serious inconvenience and hindrance to the free flow of traffic in that area and in particular at Vijayawada City in general. It is further in the said Order that there is credible information to the police breach of peace and cognizable offence would be committed and the same will result in serious and potential impact affecting public order, peace and tranquility.
8. It is not in dispute that members of petitioners union are public servants working in essential services and they would come within the purview of APESMA, 1971. Persons who join the Government Service are bound by certain Code of Conduct necessary for proper discharge of functions as Government Servants. Certain Fundamental Rights have been conferred on the citizens of the country, 11 which is the Basic Structure of the Constitution of India. Fundamental Rights are enshrined in Article III of the Constitution of India. Article 19 contemplates protection of certain rights regarding freedom of speech, etc. Article 19 (1) (b) contemplates that all the citizens shall have right to assemble peaceably and without arms. The rights that are enshrined under Article 19 are not free from any restrictions and are not absolute in their terms and obligations. Article 19 (2) empowers the State to impose reasonable restrictions on right to freedom of speech and expression in the interest of various factors. Article 19 (3) of the Constitution of India provides that nothing in the right to assemble peaceably shall affect the operation of any existing law insofar as it imposes, or prevents the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of that right.
9. Article 19 (1) (a) of the Constitution of India states that all citizens shall have the right to freedom of 12 speech and expression. The philosophy behind this Article lies in the Preamble of the Constitution, where a solemn resolve is made to secure to all its citizens, liberty of thought and expression. The exercise of this right is, however, subject to reasonable restrictions for certain purposes being imposed under Article 19 (2) of the Constitution of India. As rightly observed by Patanjali Sastry, J., 'Freedom of Speech and of Press lay at the foundation of all democratic organizations, for, without free political discussion, no public education, so essential for the proper functioning of the process of Government, is possible.'. Freedom of speech includes right to propagate one's view through print media or any other communication channel or print media or Television, subject to reasonable restrictions imposed under Article 19 (2) of the Constitution of India.
10. Time and again, it has been reiterated that the Fundamental Rights have to be strictly enforced. It is needless to mention here that citizens of this country have 13 freedom of speech and freedom to assemble peacefully and freedom to form associations and unions. However, the said Right is not an absolute one and it can be done so in a restricted manner within the bounds of the Constitution of India. The Code of Conduct cannot be flouted under the guise of freedom of speech and expression guaranteed under Article 19 of the Constitution of India. At the same time, merely because the members of Petitioners union are employees coming under the purview of APESMA, 1972, it cannot be said that their right accrued in expressing their views, would be taken away by virtue of the said Act. In the decision in M.H.Devendrappa v. Karnataka State Small Industries Development Corporation (1 supra), nowhere it is stated that employees of the Electricity Board cannot conduct a meeting. At same time, in the interest of sovereignty and integrity of India, security of the State, reasonable restrictions can be imposed. However, it is made clear that the employees are bound to maintain discipline in their service to ensure efficient performance of their duty by the employees and to protect the interests 14 and prestige of the Corporation. The employee who disobeys the Service Rules or displays negligence, inefficiency or insubordination or does anything detrimental to the interests or prestige of the Corporation or acts in conflict with official instructions or is guilty of misconduct, is liable for disciplinary action in accordance with the relevant Rules governing the Service Conditions.
11. Going by the representation made by the petitioners herein, they categorically mentioned that they would stage a dharna only to ventilate their grievances, in a peaceful manner without there being rallies or procession. Keeping the Fundamental Rights and the APESMA, 1971 in juxtaposition, it goes without saying that preference has to be given to the Fundamental Rights, which are enshrined in Part III of the Constitution of India, by granting to the petitioners union to conduct meeting imposing certain reasonable restrictions. 15
12. Accordingly, the petitioners union are allowed to conduct meeting within the premises of Dharna Chowk, Vijayawada on 10.09.2023 from 10.30 AM to 1.30 PM.
There shall be a congregation of not more than 500 persons at the said place on the said date.
The deponent of the writ affidavit, who is General Secretary of 1st petitioner, shall submit names and contact numbers of the employees participating in the said meeting, well in advance to respondents-police.
The petitioners shall conduct the meeting in a peaceful manner, and in the process of conducting the meeting, the petitioners shall not in any way make any inflammatory speeches and shall not defame any person/persons.
The petitioners shall not take out any rallies or conduct any demonstrations. The petitioners shall strictly adhere to, the aforesaid timings.
It is made clear that if any of the employees act detrimental to the conditions imposed by this Court, the Corporation is at liberty to take appropriate disciplinary 16 action as against such employee in accordance with relevant Conduct Rules.
13. With the aforesaid directions, the Writ Petitions are disposed of. No order as to costs of the Writ Petitions.
Miscellaneous Petitions, if any, pending in this Writ Petitions, shall stand closed.
___________________________________ JUSTICE K. SREENIVASA REDDY 01.09.2023 DRK 17 THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY COMMON ORDER IN WRIT PETITION Nos.21748 OF 2023 and 22301 of 2023 01.09.2023 DRK