Rajendra Kumbaj v. M. R. E. C. Society, Jaipur — 1995 DIGILAW 519 (RAJ)

JUDGMENT 1. - The petitioner who is an employee of the Malviya Regional Engineering College, Jaipur and working as Lower Division Clerk in establishment section of the said college, has filed this writ petition seeking relief inter alia that the petitioner had submitted an application on 25.4.1958 before the college authorities for granting him permission to contest the Assembly 13. 1968 Cr. L.J. 1025 Elections but the said permission was declined by the respondent-Society by its letter dated 28.4.1988 vide Annexure-1 on the ground that under the Employees Conduct Rules, 1966 there is a specific bar to any of the employee to contest the Assembly Election and there is a further bar under the said rules for permitting any employee of the college to participate in politics and elections or from becoming member of any political party or to be associated with any political party or in organisation which takes part in politics, nor he shall take part and subscribe any aid or associate in any other manner in any political movement or activity. 2. The facts giving rise to the filing of this writ petition briefly stated are that the petitioner who is an employee of the respondent-college has been working as L.D.C. in the establishment section of the M.R.E.C., Jaipur. It has been contended in the writ petition that the respondent is a registered society under Societies Registration Act and hence being a 'State' under Article 12 of the Constitution of India being a registered society, is amenable to the writ jurisdiction of this court under Article 226 of the Constitution of India. It has been further contended in the writ petition that there are 15 Engineering Colleges in India, the respondent being one of the said colleges at Jaipur. 3. It has been further contended in the writ petition that the respondent had framed the M.R.E.C. Society Employees Conduct Rules, 1966 (hereinafter referred to as the "Rules"), for governing all the employees of the said College. Rules 5 and 6 of the Rules which are relevant for consideration of this court in deciding this writ petition are reproduced hereunder: "Rule-5. It has been further contended in the writ petition that the respondent had framed the M.R.E.C. Society Employees Conduct Rules, 1966 (hereinafter referred to as the "Rules"), for governing all the employees of the said College. Rules 5 and 6 of the Rules which are relevant for consideration of this court in deciding this writ petition are reproduced hereunder: "Rule-5. Taking part in politics and election: (1) No employee shall be a member of, or be otherwise associated with, any political party or any organisation which takes part in politics not shall take part in, subscribe in aid of, or assist in any manner, any political movement or activity. (2) If any question arises whether a party is a political party or whether any organisation takes part in a politics, the decision of the Society thereon shall be final. (3) No employee shall convass or otherwise interfere with or use his influence in connection with, or take part in, an election to any legislature or local authority. Provided that: (i) an employee qualified to vote at such election may exercise his right to vote but where he does so, he shall give no indication of the manner in which he proposes to vote or has voted: (ii) an employee shall not be deemed to have contravened the provisions of this sub-rule by reason only that he assists in the conduct of an election in the due performance of a duty imposed on him by or under any law for the time being in force. Explanation:The display by an employee on his person, vehicle or residence of any electoral symbol shall amount to using his influence in connection with an election, within the meaning of this sub-rule. Note : An employee who has reason to believe that attempts are being made to induce him to break provisions of this rule by or on behalf of an official superior or superiors shall report the facts to the Competent Authority. (2) Proposing or seconding the nomination of a candidate at an election or acting in a Polling agent shall be deemed as an active participation in the election". "Rule 6. (2) Proposing or seconding the nomination of a candidate at an election or acting in a Polling agent shall be deemed as an active participation in the election". "Rule 6. Demonstrations and strikes : No employee shall - (i) engage himself or participate in any demonstration which is prejudicial to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or which involves contempt of court, defamation or incitement to an offence, or (ii) resort to or in any way bent any form of strike in connection with any matter pertaining to his service or the service of any other employee." Rule 7 of the Rules deals with vindication of acts and character of the employees. Rule 8 of the Rules deals with the right of the employees in forwarding representation to the management of the college for seeking redressable of any grievance of the said employee or for any other matter. Rule 9 of the Rules creates a specific bar to the employees broadcasting in any news item or in any document or from publishing any document anonymously either in his own name or in the name of any other person or in any communication to the press or in any public utterance, make any statement of fact or opinion which may have effect of an adverse criticism of any policy or action of the society or which may be capable of embarrassing the relations between the society and the Central Government or any State Government or any other society or organisation or members of the public in this regard or which exploits the name of the society or his position therein. Rule 10 of the Rules creates a specific bar on an employee who may except with the previous sanction of the competent authority, depose in evidence against the society in connection with any inquiry conducted by any person, committee or authority. A bar is further created under the Rules on any employee criticising the policy or any action of the society or the Central Government or any State Govt. A bar is further created under the Rules on any employee criticising the policy or any action of the society or the Central Government or any State Govt. Rule 18 of the said rules which specifically provides that no employee shall attempt to seek in a court of law a decision on grievances arising out of his employment or conditions of service, even in cases where such a remedy is legally admissible, without first exhausting the normal official channel of redress. Rule 19 of the said rules provides that the decision of the society on all questions relating to the interpretation of these provisions shall be final. 4. It has been further contended in the writ petition that the respondent society is not a part of Government itself and as such the employees of the society do not hold civil post and that Article 311 of the Constitution of India does not apply in their case. Since the employees of the society do not hold and office of profit under the Central or the State Government or under any local authority, the nature of the respondent- society is like that of an University without being a local authority. 5. Notwithstanding the Bar under the Employees Conduct Rules, particularly Rules 5 and 6, as referred to above, the petitioner applied to the college Authorities on 25.4.1988 for granting him permission to contest Assembly Elections for the year 1988 but the said permission was declined by the respondents vide their letter, dated 28.4.1988 vide Annexure 1, as referred to above. It is this impugned action of the respondent-society in declining permission to the petitioner from participating and contesting the Assembly Elections for the year 1988, that the petitioner has filed this writ petition on various grounds challenging inter-alia the vires of the impugned Rules 5 and 6 of the Rules as arbitrary, discriminatory and mala fide being violative of Articles 14 and 19(1)(a), (1)(b) and (1)(c) of the Constitution of India. It has been further contended on behalf of the petitioner that taking part in politics or to take part in political activities is a constitutional right of the citizens subject to a reasonable restriction which is placed by Constitution in exercise of the fundamental rights and no such restriction can be imposed in exercise of the fundamental rights of any other Authority. The petitioner has further challenged the impugned action of the respondents on the ground that to put a ban on all such activities is in violation of all democratic right and it does not mean that an employee must sell all his freedom and Constitutional and legal rights to the employer. The vires of Rule 6 of the said Rules has been challenged by the petitioner on the ground that the said rule is discriminatory and violative of Constitutional guaranteed cause to assemble peacefully is also a fundamental right and strike has been recognised as a legal right of an employee and as a legitimate means and weapon for redressal of the grievances. This right cannot be taken away by the employer unilaterally. It has been further contended that the respondent-society and the college is an 'industry' as defined under Section 2J of the Industrial Disputes Act, 1947 and it has been held by the Apex Court in Banglore Water Supply case that educational institutes are also industry under he Industrial Disputes Act and that an Industrial employee cannot be deprived of his right to strike work if necessary. The petitioner has also challenged the Rules as framed by the respondent-society on the ground that the said Rules are against public policy and unlawful being hit by Section 23 of the Contract Act. The petitioner has further contended that even Article 102 or 191 of the Constitution of India do not impose any disqualification on any employee from contesting elections either for Parliament or State Legislature and that the petitioner cannot be deprived of his right to contest the elections on the ground that he is an employee of an educational institution. Likewise, there is no provision either in the Representation of Peoples Act 1951 or in the Rajasthan Municipalities Act disqualifying such persons like the petitioner from contesting the elections. Likewise, there is no provision either in the Representation of Peoples Act 1951 or in the Rajasthan Municipalities Act disqualifying such persons like the petitioner from contesting the elections. Since the petitioner does not hold any office of profit either under the Union or State Government or the local Authority, he has a right to contest the elections in future as well and consequently he has prayed to his court that by an appropriate writ, order or direction Rules 5 and 6 of the Rules be dedared ultra-vires, and be struck down and any other appropriate writ, order or direction which this court deems fit and proper, be passed in favour of the petitioner and he be allowed to take part in politics and contest the elections. 6. In reply to the show cause notice filed on behalf of the respondent- society it has been contended that Rules 5 and 6 of the Rules constitute the service conditions which are binding on its employees/servants and also on the petitioner. The respondent-society has vehemently denied that the petitioner has any right to take part in political activities and to participate in the elections which is neither a Constitutional nor a fundamental right of the petitioner who is an employee of the respondent- society/college and as such he is bound to obey the Rules governing the conduct of its employees. In reply to para 7 it has been contended that Rule 6 of the Rules puts reasonable restriction on the activities of the petitioner, since the right to strike work and to hold demonstrations during the working hours is neither fundamental nor Constitutional or statutory right. With regard to Annexure 1, i.e. letter dated 25.4.1988, the petitioner had applied to the respondent-society for seeking permission to contest the Assembly Elections which was denied by the respondent-society, since as an employee of the respondent-society the petitioner cannot be permitted either to contest any election for the Assembly nor he can be permitted to participate in political activities as per the rules. 7. 7. On the question of laches, the respondent society has taken a specific stand in its reply that the impugned letter dated 28.4.1988 (Annexure 1) was received by the petitioner on the said date; whereas the present writ petition was filed in this court on 15.1.1990, i.e., more than two years of the Assembly Elections which were held in the year 1988 and since the writ petition has already become infructuons, no relief can be granted to the petitioner. It has been further contended that the writ petition filed by the petitioner has no force and should be dismissed with cost. 8. The question which arises for consideration of this court is as to whether an employee of the respondent-society which is registered society, getting grant aid from the State Government and as such is a 'State' under Article 12 of the Constitution of India, to take part in Assembly Elections of the State or whether such an employee can be permitted to be associated with any political party on any organisation which takes part in politics or for any political movement or activity in violation of the Employees Conduct Rules of the Society ? 9. Shri Rathi, learned counsel for the petitioner in support of his contentions advanced at the Bar, has contended that notwithstanding any bar contained in Rules 5 and 6 of the Rules, the petitioner should have been granted permission to participate in the Assembly Elections held in the year 1988 and in view of the dental of the permission to the petitioner to contest the Assembly Elections, the impugned order passed by the respondent- society on 28.4.1988 has resulted in violation of the fundamental right of the petitioner to contest the Assembly Elections and that the impugned Rules 5 and 6 of the Rules cannot be read in isolation and cannot have the over-riding effect over the fundamental rights guaranteed to the petitioner under Articles 14 and 19 of the Constitution of India. Alternatively it has been argued by the learned counsel for the petitioner that even though the Conduct Rules, 1966 have been framed by the respondent-society for regulating the conduct of the employees, the said Rules are merely administrative orders and the petitioner cannot be deprived of his fundamental right to take part in the Assembly Elections. Alternatively it has been argued by the learned counsel for the petitioner that even though the Conduct Rules, 1966 have been framed by the respondent-society for regulating the conduct of the employees, the said Rules are merely administrative orders and the petitioner cannot be deprived of his fundamental right to take part in the Assembly Elections. It has been further, contended by Shri Rathi that the employees of the aided institutions like the respondent-society cannot be disqualified to take part either in the Assembly Elections or in the Municipal Elections of the State. It has been further contended by the learned counsel on the point of latches, since the elections pertains to the year 1988 and the petitioner filed this writ petition in this court after the delay or over two years on 15.1.1990, the latches do not come in the way of the petitioner since the petitioner cannot be deprived even in future to contest the elections. 10. In support of his contentions, learned counsel for the petitioner has placed reliance upon the judgment of Kerala High Court in the matter of V. Gopinathan Vs.The State of Kerala, AIR 1964 Kerala 227 , alitha Bai Vs. Returning Officer, City Municipality Elections, Gulbarga and others, AIR 1971 Mysore 35 and the judgment of the Apex Court in the matters it Abdul Shakur Vs. Rikhab Chand and another AIR 1953 Supreme Court 52 , Kameshwar Prasad and others Vs. State of Bihar & anr, AIR 1962 S.C 1166 and D.R. Gurushanthappa Vs. Abdul Khuddas Anwar and others, AIR 1969 Supreme Court 744. 11. In the matter of V. Gopinathan Vs. The State of Kerala (supra) the question which had arisen for consideration before the Kerala High Court was that the petitioner who was a Government servant and was governed by Kerala Government Servants Conduct Rules, 1950, had been found guilty of contravening of those Rules by the Tribunal. The Rules were admittedly framed by the Governor in exercise of the powers conferred by proviso to Article 309 of the Constitution and had come into force w.e.f. 12.1.1960, i.e., the material date when the petitioner was stated to have committed the violation of the said Rules. The Rules were admittedly framed by the Governor in exercise of the powers conferred by proviso to Article 309 of the Constitution and had come into force w.e.f. 12.1.1960, i.e., the material date when the petitioner was stated to have committed the violation of the said Rules. The Tribunal found the petitioner guilty of the violation of the Conduct Rules but the High Court held that on the material date since the Conduct Rules, 1960 were not in force and consequently was not "law" and as such the respondents were not competent to impose restriction on the fundamental rights. This judgment of the Kerala High Court is distinguishable and the ratio of the said decision is not applicable to the facts of this case, since the M.R.E.C. Employees Conduct Rules, 1966 were already in force at the relevant time, i.e. on 25.4.1988 when the petitioner had applied for grant of permission to contest the Assembly Elections which was consequently rejected by the Authorities in view of violation of Rule 5 of the Rules. 12. In the matter of Lalitha Bai Vs. Returning Officer, City Municipality Elections, Gulbarga and others (supra) similar question had arisen for consideration of the Mysore High Court was as to whether an employee of the society whose members are not appointed by the Government, whether the appointments, conditions of service and control over the employees which are vested with the management, can the said employees be considered to be a holder of office of profit under any local or other authority under the control of the Government ? It was held by the Division Bench of Mysore High Court that such an employee cannot be considered to be a holder of office of profit under any local authority under the control of the Government. It was held by the Division Bench of Mysore High Court that such an employee cannot be considered to be a holder of office of profit under any local authority under the control of the Government. In my considered opinion this judgment of the Mysore High Court is distinguishable and the ratio of the decision is not applicable to this case, since in this case admittedly the respondent-society is a society registered tinder the Societies Registration Act and is one of 15 Engineering Colleges in India, the composition of which is dominated by the representative of Central and State Government and control of the Central and State Government, being pervasive, it is a "State" under Article 12 of the Constitution and the petitioner being an employee of the said institution and deriving his remuneration out of the funds of the society, it cannot be said that the petitioner is not a holder of officer of profit under the control of the Central/State Government. 13. In the matter of Kameshwar Prasad Vs. State of Bihar and Anr. (supra) the question which had arisen before the Apex Court was regarding the interpretation of Bihar Government Servants Conduct Rules, 1956. The Apex Court while considering the Constitutional validity of Rule 4A of the Conduct Rules held that the said Rule 4A in the form in which it stands, prohibiting any form of demonstrations for the redressal of the grievances of the Government servants is violative of fundamental rights guaranteed to them under Article 19(1)(a) and (b) of the Constitution of India and, therefore, should be struck down. At the same time the Apex Court held that the Rule in so far as it prohibits a strike cannot be struck down, since there is no fundamental right to resort to a strike. In this regard I am of the opinion that the ratio of the aforesaid decisions of the Apex Court is neither applicable nor attracted to this case, since the controversy involved for consideration of this court in this case is not regarding the right of an employee to resort to strike or demonstration but to take part in Assembly Election for the year 1988 and also to contest elections of the Society in future which is neither permitted nor warranted within the ambit of Rule 5 of the Conduct Rules. 14. 14. Shri Subhash Jain learned counsel for the respondent-society has controverted the above contention of the learned counsel for the petitioner by specifically contending at the Bar that the right to contest the Assembly Elections or the Municipal Elections or of any other local body or authority is not a fundamental right of the petitioner if he is in service and there is a specific bar under the Conduct Rules prohibiting such employee from participating or contesting the elections. In support of his contentions, learned counsel for the respondent-society has placed reliance upon Rules 5 and 6 of the Rules. Under Rule 5 of the Rules there is specific bar to an employee of the society from taking part in politics and elections. Proviso to sub-rule (2) of Rule 5 of the Rules specifically provides that if any question arises whether a party is a political party or whether any organisation takes part in politics, the decision of the Society thereon shall be final and is not open to question or challenge. Likewise, there is a bar under Rule 6 of the Rules that no employee shall be take part in any demonstration and strike. In support of his contentions advanced at the Bar, learned counsel for the respondent-society, has placed reliance upon the judgment of the Apex Court in the matter of Shekhawant Ali Vs. State of Orissa, AIR 1955 Supreme Court 167 , wherein while considering the validity of the relevant rules framed under Orissa Municipal Act, 1950 (Act 23 of 1950), it was held by the Apex Court that Article 14 forbids class legislation but does not forbid reasonable classification for the purposes of legislation. That classification however cannot be arbitrary but must rest upon some real and substantial distinction bearing a resonable 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 legislation. Applying this principle to the said case, it was held by the Apex Court that classification as con- templated by Section 16 of the Orissa Municipality Act has a reasonable nexus to the object or purpose sought to be achieved and hence the disqualification prescribed by the said provision of the Act is not violative of Art.14 of the Constitution. Applying this principle to the said case, it was held by the Apex Court that classification as con- templated by Section 16 of the Orissa Municipality Act has a reasonable nexus to the object or purpose sought to be achieved and hence the disqualification prescribed by the said provision of the Act is not violative of Art.14 of the Constitution. I am of the opinion that the ratio of the aforesaid decision of the Apex Court is fully attracted and is applicable to this case. Since Rule 5 of the Rules which prohibits any employee of the college/society from taking any part in any political activity or contesting any election is in perfect consonance in the context in which the said Conduct Rules have been framed by the respondent-society, the sole object being that every employee of the society at all times subsequent to joining of the institution should maintain absolute integrity and devotion to duty and also be strictly honest and impartial in discharge of his official dealings which is envisaged by Rule 5 of the Rules and in this context a bar has been imposed under Rule 5 of the Rules prohibiting an employee or any member of the College/society to be associated with any political party or any organisation which takes part in politics or from contesting any election which would be contrary to very purpose for which the society has been constituted. Thus, I am of the considered opinion that the aforesaid Rules have reasonable nexus to the objects sought to be achieved by the respondent-society in framing the Conduct Rules, which cannot, by any stretch of imagination, be said to be imposing any unreasonable restriction on the exercise of fundamental rights of the petitioner under Articles 14a and 16 of the Constitution, and hence the same are not ultra-vires but are intra vires to the Constitution of India. 15. 15. On the question of maintainability of this writ petition, learned counsel for the respondent society has vehemently argued that the writ petition suffers inordinate delay and latches, since the question which has been raised in this writ petition regarding petitioner's right to participate in the Assembly Elections pertaining to the year 1988; whereas the writ petition was filed in this court by the petitioner after inordinate delay on 15.1.90 and thus, both, on merits as well as latches no case has been made out by the petitioner for any interference by this court in exercise of its jurisdiction under Article 226 of the Constitution of India. It has been further contended by the learned counsel for the respondent-society that the petitioner has sought a blanket order from this court that since the Assembly Elections for the year 1988 are already over, he cannot be given permission to participate or to contest the Assembly Elections in future, since no such prayer has been made in the prayer clause of the writ petition nor the petitioner can be permitted such relief in view of the bar created by Rules 5 and 6 of the Rules. Thus, both, on merits as well as on account of laches the writ petition lacks merit and deserves dismissal. 16. I have heard learned counsel for the parties at length and also examined their rival claims and contentions as well as the relevant Rules in this regard. 17. I am of the considered opinion that the Conduct Rules, 1966 which are applicable to the case of the petitioner, do not permit any relaxation in the matter of permitting any employee of the respondent-society from taking part in politics and elections. There is specific bar under Rule 5 of the Rules which provides that no employee shall be a member of, or otherwise be associated with any political party or any organisation which takes part in politics nor such an employee shall be permitted to take part or subscribe in any manner, with any political movement or activity. Sub-rule(2) of Rule 5 of the Rules gives final discretion to the management of the respondent-society to take its decision in such matters and the decision of the Society shall be final and will not be open to question. Sub-rule(2) of Rule 5 of the Rules gives final discretion to the management of the respondent-society to take its decision in such matters and the decision of the Society shall be final and will not be open to question. A perusal of Rule 18 of the Rules makes it specifically clear that no employee shall attempt to seek in a court of law a decision on grievances arising out of his employment or conditions of service even in cases where such a remedy is legally admissible, without first exhausting the normal official channel of redress. Further Rule 19 of the Rules makes the decision of the society on all questions relating to the interpretation of the Rules to be final. I am thus, of the considered opinion that right to take part in political activities or to participate in the elections cannot be said to be a fundamental right of an employee of the respondent-society/college who is bound by the Conduct Rules governing the conduct of the employees and that this was within full knowledge of the petitioner when he joined the services of respondent-society that he shall not be permitted to take part in political activities or to participate in the elections and hence there is no question of infringement of any fundamental right of the petitioner in this regard. I am further of the opinion that the petitioner who is an employee of the respondent-society cannot claim any violation of fundamental right since he is bound by the Conduct Rules and if still he wishes to take part in the elections, it is open to him to do so by tendering his resignation from the service of the society and. in that event he shall be free to take part either in the Assembly Elections or in the Municipal Elections as he may like to do so at his discretion. I am further of the opinion that the Government servants as well as the employees of the aided educational institutions like the respondent-society can be subjected to reasonable restrictions with regard to their activities while they are in service of such employer and that they should be bound by the Conduct Rules in the interest of maintaining discipline of the institution itself. 18. 18. With regard to the contentions of the petitioner that he should be permitted to participate in future elections of the State Assembly I am of the opinion that no such relief can be granted to the petitioner in view of the specific bar under the Conduct Rules of the Society, as aforesaid. With regard to the contention of the petitioner that the respondent-Society is an industry as defined in Section 2(j) of the Industrial Disputes Act, 1947, I am of the opinion that the question is irrelevant for deciding the controversy in question since no industrial dispute arises for adjudication either by the Labour Court nor such plea can be permitted to be raised in exercise of writ jurisdiction by this Court under Article 226 of the Constitution of India. I am further of the opinion that Rules 5 and 6 of the Rules are perfectly valid and binding on the employees of the respondent-society and there is nothing arbitrary in the said rules and hence the question of declaring them ultra-vices of the Constitution of India, does not arise. 19. Consequently this writ petition has no merit and is hereby dismissed with no order as to costs.Petition dismissed. *******