TAMBE, J. - (1.) THESE four Petitions have been placed before us for hearing on being referred to by Mr. Justice K. K. Desai. These four petitions gives rise to some common questions of law and can conveniently be disposed of by a common judgment. In the first two petitions, M. P. Nos. 248 and 254 of 1960, constitutionality of the Essential Services Maintenance Ordinance, 1960, No. 1 of 1960, promulgated by the President has been challenged, while in the other two petitions, M. P. Nos. 255 and 256 of 1960, constitutionality of Rule 4 (A) and rule 4 (B) of the Central Civil Services (Conduct) Rules, 1955, has been challenged. The questions raised are of considerable importance.
(2.) FACTS giving rise to these petitions may be briefly stated. In exercise of the powers conferred by clause (1) of Article 123 of the Constitution, the President of India promulgated as Ordinance called 'Essential Services Maintenance Ordinance, 1960', hereinafter referred to as the Ordinance. It is in the following terms: - 'The Essential Services Maintenance Ordinance, 1960. No. 1 of 1960. Promulgated by the President in the Eleventh Year of the Republic of India. An Ordinance to provide for the maintenance of certain essential services and the normal life of the community. Whereas Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action; Now, therefore, in exercise of the powers conferred by clause (1) of Article 123 of the Constitution, the President is pleased to promulgate the following Ordinance: - 1. (1) This Ordinance may be called the Essential Services Maintenance Ordinance, 1960. (2) It extends to the whole of India: Provided that it shall not apply to the State of Jammu and Kashmir except to the extent to which the provisions of this Ordinance relate to the Union employees. It shall come into force at once. 2. (1) in this Ordinance - (a) 'Essential service' means - (I) any postal, telegraph or telephone service: (ii) any railway service or any other transport service for the carriage of passengers or goods by land, water or air; (iii) any service connected with the operation , or maintenance of aerodromes, or with the operation, repair or maintenance of aircraft; (iv) any service connected with the loading unloading, movement or storage of goods in any port; (v) any service connected with the clearance of goods or passengers through the customs or with the prevention of smuggling; (vi) any service in any mint or security press; (vii) any service in any defence establishment of the Government of India; (viii) any service which the Central Government being of opinion that strikes therein would prejudicially affect the maintenance of any public utility service or would result in the infliction of grave hardship on the community may, by notification in the Official Gazette declare to be an essential service for the purpose of this Ordinance; (b) 'Strike' means the cessation of work by a body of person employed in any essential service acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment. (2) Every notification issued under sub -clause (viii) of clause (a) of sub -section (1) shall be laid before each House of Parliament as soon as may be after it is made, and shall cease to operate at the expiration of forty days from the reassembly of Parliament unless before the expiration of that period a resolution approving the issue of the notification is passed by both Houses of Parliament. EXPLANATION: Where the Houses of Parliament are summoned to re -assemble on different dates, the period of forty days shall be reckoned from the later of those dates. 3. (1) If the Central Government is satisfied that in the public interest it is necessary or expedient so to do, it may, by general or special order, prohibit strikes in any essential service specified in the order. (2) An Order made under sub -section (1) shall be published in such manner as the Central Government considers best calculated to bring it to the notice of the persons affected by the Order. (3) An Order made under sub -section (1) shall be in force for six months only, but the Central Government may, by a like Order. (3) extend it for any period not exceeding six months if it is satisfied that in the public interest it is necessary or expedient so to do. (4) Upon the issue of an Order under sub -section (1): (a) no person employed in any essential service to which the Order relates shall go or remain on strike: (b) any strike declared or commenced, whether before or after the issue of the Order, by persons employed in any such service shall be illegal.
(3.) ANY person who commences a strike which is illegal under this Ordinance or goes or remains on, or otherwise takes part in any such strike shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two hundred rupees, or with both.;