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TMI Blog1984 (10) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... whereat he criticised adversely the State Government in their actions regarding (1) the suspension of some of the I.A.S. Officers; and (2) appointment of enquiry officers to conduct enquiries against I. A.S. Officers and he supported the struggle of the State Government employees. This conduct of the petitioner is in contravention of Rule 7 (i) of the All India Service (Conduct) Rules, 1968, for short, 'the conduct Rules the Government satisfied that it is desirable, in the public interest, to hold disciplinary enquiry against the petitioner and pending thereof, the petitioner should be kept under suspension. Therefore, in exercise of the power under Rue 3 (1) of the All India Service (Discipline and Appeal) Rules, 1969, for short, Discipline Rules , the petitioner was kept under suspension with immediate effect from the date of communication of the order. He is assailing its validity in W.P. No. 6568/83. He impugns also G.O. Rt. No. 2620, G. A. D, dated June 25, 1983 in W.P. No. 5552/83 when he was kept under suspension under Rule 3 (1) of the Discipline Rules for his alleged indulgence in serious acts of malpractice, viz., copying the answer books on Law of Crimes of LL.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore it is ultra vires. In support thereof, Sri Vedanta Rao relied on Kameshwara Prasad v. State of Bihar AIR 1962 SC 1166. O.K. Ghosh v. E.X. Joseph AIR 1963 SC 812 Manmohan v. State AIR 1966 Mysore 261 and Krishna Chandra v. Chief Superintendent Central Excise AIR 1955 Calcutta 75 Though he argued that the suspension is ultra vires of Articles 21 and 14 of the Constitution and cited several decisions to substantiate the contention, since the order of suspension is revoked, the need to go into those questions is obviated. 3. The State Government have filed their counter, supporting the actions as well as the validity of Rule 7(i) of the Conduct Rules. The Central Government too filed their counter supporting the action as well as the validity of the Rule. But during the course of arguments, Sri Jagannadha Rao, their, learned standing counsel initially supported the action on the ground that the strike of the Non-gazetted Government Officers was declared to be illegal and the petitioner participated in the meeting; therefore he has no fundamental right to speech in the prohibited meeting. When it is pointed out to him that the petitioner took no part in the strike but only spoke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has a fundamental right to freedom of speech and expression, being part of the executive he cannot criticise the policy or actions of the Government which cause embarrassment to the State Government. Rule 7 (i) of the Conduct Rules prohibits only his right to criticise the policy or actions of the Government. It comes within the meaning of ''public order or decency or morality , under Article 19(2). In support of his contentions, he relied on Radhey Shyem v. P. M. G., Nagpur AIR 1965 SC 311. P.N. Rangaswamy v. Coimbatore Municipality AIR 1968 Madras 387. Dakshina Murthi v. State of Madras AIR 1967 Madras 392. V.C. Chacko v. State AIR 1957 Kerala, 7. Adler v. Board of Education 342 U. S. 485. And Pickering v. Board of Education 391 U.S. 563. 4. Sri Jagannadha Rao also sought reliance on V.C. Chacko case (Supra) and P.N. Rangaswa my case (Supra) and Alder case (Supra). The learned Advocate General further contended that Rule 7 (i) was introduced to maintain efficiency in the civil services. The object is only to prohibit the members of the civil services to openly criticise the actions or policy of the State Government. For this contention, Sri Vedantha Rao, learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified form in case any such modification is made. The Conduct Rules and Discipline Rules, admittedly have been made in exercise of the power under Sec. 3(1) of the Act and therefore they are legislative in character. Thereby the Rules have insignia of the presumptions available to a statute as held by a Division Bench of this Court in DKV Prasada Rao vs Govt. of AP AIR 1984 AP 75 to which one of us (K. Ramaswamy, J.) is a party. Every presumption is to be made in favour of the validity of the statute (Rule), Rule 7 (i) of the Conduct Rules, reads thus : 7. Criticism of Government : No member of the Service shall, in any radio broadcast or in any document published a ominously, pseudonymously or 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 - (i) which has the effect of an adverse criticism of any current to recent policy or action of the Central Government or a State Government: or.. (ii)............ (iii)............ Provided that nothing in this rule shall apply to any statement made or views expressed by a member of the Service in his official capacity and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is constitutional right under Article 19(1)(a) possessed by a member of the All India Administrative Service. 10. Before considering the precise scope of the freedom under Article 19(1)(a) which a member of the All India Service is possessed of, it is necessary to recapitulate this right given to an ordinary citizen. Article 19(1)(a) declares that all citizens shall have the right to freedom of speech and expression . Freedom of speech is thereby a constitutional right in our democratic society. Free discussion of governmental affairs is basic in our constitutional system (Vide Sweezy v. New Hampshire 354 US 234 at 250. If a free speech serves a useful social purpose, it is to be zealously guarded (Vide Jackson, J. in Thomas v. Collins 323 U. S. 216 at 246. The right to express thoughts freely and to disseminate ideas fully is secured by the Constitution as basic to the conception of free Government (Vide Roberts, J in Thomas case (supra) at 548). In Naacp v. Button 371 US. 415 at 433 it was held that the first Amendment freedoms are delicate and vulnerable as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schacht v. United States 1970) 398 U. S. 58 at 60. The classic statement of free speech profounded by Holmes, J. that they (founding fathers of Bill of Rights) believed foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas, that the best test of truth is the power of thought to get itself accepted in the competition of market; and that truth is the only ground upon which their wishes safely can be carried out. (Vide Abrahams v. United States (1919) 2S0 U.S. 616 at 629. The law above laid in absolute terms received little acceptance by the founder jurists of our Constitution let alone persisted in our Courts. The rights conferred under Article 19(1), even to a common citizen, are not absolute, is obvious when we read clauses (2) to (6) of Article 19 together. Their Lordships of the Supreme Court speaking through Pathanjali Sastry, C.J. in State of Madras v. G.V. Rao AIR 1952 S. C. 196 held that : We have to consider the nature of the right conferred; the nature of the right infringed, the underlying purpose to impose restrictions the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintain absolute integrity and devotion to duty. While discharging the duty, he shall do at all times nothing which is unbecoming of his membership as a holder of an higher echelon of service. When such is the conduct expected of to be maintained at all times by a bureaucrat, the pertinent question to demark the periphery at which his free exercise of freedom of speech and expression is to end claims ! adjudication? He is free to express his opinion but Rule 7 (i) places fetters on his conduct which alone is amenable to law and consequential action when infringed. Article 33 is irrelevant to this case. Constitution itself indicated in Article 312 the need or expediency in the national interest, to make law not only creating All India Administrative Service but also to regulate the conditions of service of persons appointed to such service. Thereby, the regulation of conduct is a condition for service. The national interest, necessity or expediency also are relevant considerations in adjudging the constitutionality of the Rules made pursuant to the Act. Under Article 154 of the Constitution, the executive power of the State shall be vested in the Governor (under Article 73 in the Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment ex facie is in violation of Article 19(1), the petitioner is absolved even of that modicum of an obligation to show that the rights guaranteed under Article 19(1) is violated. When the text of the law is not so clear, the petitioner does have to discharge the obligation to prove the fact of deprivation. But that only and nothing more. In cases arising under Article 19, the burden is never on the petitioner to prove that the restriction is not reasonable or that the restriction is not in the interest of the matters mentioned in clause (2) thereof (vide paragraph 17). The question arose therein was whether the execution of the death sentence by hanging is a procedure subservient to Article 21 and it was held that the procedure prescribed under Section 354(5) of the Code of Criminal Procedure was just, fair, reasonable and intra vires Article 21 of the Constitution and the State has discharged that burden. 16. It is seen that Rule 7 (i) puts total ban on the right under Article 19(1)(a). In the light of the law thus laid down, it must be held that it is for the State to establish that the prohibition imposed under Rule 7 (i) of the Conduct Rules is permissible and is a rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n circumstances, extend to total prohibition for a time, of all normal trading in the commodity. In this view, the restriction was upheld under Article 19(5) as being reasonable. In Schneider v. Irvington 308 US 147 at 161-162, the Supreme Court of the United States of America held that it is imperative that when the restrictive exercise of those rights (freedom of speech, belief and faith under the First Amendment) is claimed to be adjudged, the Court should weigh the circumstances and appraise the substantiality of the reasons advanced in support of the challenged regulation. When we deal with the complex of strands in the web of freedoms, the operation and effect of the method by which speech is sought to be restrained must be subjected to close analysis and critical judgment in the light of the particular. circumstances in which it is applied (vide Kingsley Books Inc. v. Brown (33A) 354 US 436 at 441 -442 1 L Ed 2nd, 1469 at 73-1474. In the like situation, in Narendra Kumar's case (supra), it was held that : ''When the restriction reached the stage of prohibition special care has to be taken by the Court to see that the test of reasonableness is satisfied. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain, in his dealings with members of the public, in considering their complaints and grievances, the same detachment and impartiality is expected of him and these would also be impaired, if not destroyed, were it known that he was a political partisan. When such is the vital role a bureaucrat is expected to play in the discharge of his duty in assisting the Minister or the Council of Ministers or the Department to which he is responsible, the question that looms large is would he be permitted to play fast and loose to criticise the recent or current policy or actions of the Government in a public meeting or elsewhere other than in his official capacity or in the due performance of the duties assigned- to him? It is common knowledge that in the second generation of the political set up of our infant democracy, the political leadership of mature experience, vision or sagacity is becoming scarce due to diverse reasons to man the political institutions but have taken the charge through ballot. The pivotal position the bureaucrat thus occupied with mature experience in the administration he becomes an articulator in evolving or giving final shape to the policy or due execution of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple of our country, and is framing policies and measures for effecting national welfare. Today, it is true to say that the Indian state has behind it the will of the Indian people who accept it cheerfully, and not just tolerate it as an irksome necessary burden But this cheerful acceptance, let us not miss to note, consists mostly of hope-hope that intentions and promises will soon flow into performances and achievements, hope that these will not get stranded in the upper social strata leaving only a few trickles to reach the lower levels, but will reach these levels in sufficient force to fertilize the national life at the roots. This is what proclaims the importance of administration in the sphere of social functions. It is against this background of social hopes and expectations that we have to view the personality of the Indian administrator and his work. In these surging hopes and expectations enthusiasms and efforts, we experience, to adapt Wordsworth's arresting phrases, the light of heaven lying about us in the infancy of our democratic experiment; we have to ensure that our infant state as it grows through the years does not feel the shades of the prison-house closi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice association which did not receive, within six months from the date of its formation, recognition by the Government as per Rules. Following Kameshwar Prasad's Case, Gajendragadkar, J. (as he then was), speaking for the Court held that Rule 4 (A) is ultra vires of the Constitution and Rule 4 (B) was also declared ultra vires of the Constitution. In paragraph 10 of the judgment, it was expressed thus : This argument raises the problem of construction of Cl. (4). Can it be said that the rule imposes a reasonable restriction in the interests of public order? There can be no doubt that Govt. servants can be subjected to rules which are intended to maintain discipline amongst their ranks and to lead to an efficient discharge of their duties. Discipline amongst Government employees and their efficiency may in a sense be said to be related to public order. But in considering the scope of Cl. (4), it has to be borne in mind that the rule must be in the interests of public order and must amount to a reasonable restriction. The words public order occur even in Cl. (2), which refers inter alia to security of the State and public order. There can be no doubt that the said words m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct sought to be achieved and (2) the restriction imposed would be justified by reading the exceptions engrafted not only in clause (2) but also other relevant clauses of Art. 19 namely, clauses (3) to (6) and a rational meaning has to be ascribed to the words ''public order . In R.C. Cooper v. Union of India, popularly known as The Bank's Nationalization Case , AIR 1970 SC 564 Shah J, speaking for majority, held in paragraph 56 : But it is not the object of the authority making the law impairing the right of a citizen nor the form of action taken that determines the protection he can claim : it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individuals rights.'' Each freedom has different dimensions and its interplay has to be considered on a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iour, including the speech, which is detrimental to the efficiency of the employing agency. The language such as will promote the efficiency of the service'' in the Act excludes constitutionally protected speech and the State is, therefore, not barred (at 163). Similar is the view held in Colten v. Kentuchy 407 US 104 at 111. Powell J. in his concurring judgment in Arnetiy's Case (supra) at page 163 held thus: ''In the present case, the Government's interest as well as the public interest is the maintenance of the employees' efficiency and discipline. Such factors are essential if the Government is to perform its responsibility effectively and economically. To this end, the Government as an employer must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. The prolonged retention of a disrepute or otherwise unsatisfactory employee can adversely affect discipline and morale in the workplace foster disharmony and ultimately impair, efficiency of an officer or agency. (emphasis supplied) In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an employer in promoting the efficiency of the public service that it performs through its employees. There what would be the effect the speech on the duty to be perfect by the employee was considered. In that case, a teacher wrote an article criticising the school authorities in collecting the local tax in effecting the education policy and the test applied was not satisfied because the criticism had nothing to de with the performance of the duty and, therefore, it was held that the dismissal of the employee was in violation of his First Amendment right. But the ratio laid down has great bearing in testing the rationale between the efficiency of the service and the need for imposing, restriction on the exercise of freedom of speech. Edward S. Corwin, the noted Constitutional lawyer in his 'The Constitution and what it means today' (1978) 14th edition argues at p. 309 thus : Apparently one is free to say pretty much what he pleases provided the speech is not tied in with a call to violent or other illegal action. In the context of public employees, he says at pp. 316-317 thus: Losing one's job because one has expressed certain opinions or because of one& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oot to the doctrine of vagueness stems from salutary doctrine of fair play in action. It is not a principle designed to convert itself into an absolute dogma. Variety of human conduct and their infiniteness make it difficult to provide sufficiently specific warnings to meet every kind of prohibited conduct. Therefore, pedantic approach is to be eschewed. The rule has to be considered in broad parameters. In Arnett's case (supra) at 160-161 it was held when similar contention was raised thus : Because of the infinite variety of factual situations in which public statements by Government employees might reasonably justify dismissal for 'cause' we conclude that the Act describes as explicitly as it required, the employee conduct for removal. The essential fairness of this broad and general removal standard and impracticability of greater specificity. The phrase such cause as will promote the efficiency of service as a standard of employee. Job protection is without doubt intended to authorise dismissal for speech as well as other conduct. When we broach the problem from this perspective, in the light of Rule 3 of Conduct Rules, we find no difficulty to hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the dangers of the moment, whatever the right may be, but only to say that experience haying proved dangers once thought real to be now negligible, and dangers once very possibly imminent to have now passed away, there is nothing in the general rules as to plasphemy and irreligious.... which prevents us from varying their application to the particular circumstances of our time in accordance with experience. Lord Scarman in Harman v. Home Office 1982 (2) Weekly Law Reports 338 at p. 352 (House of Lords), the learned Law Lord has laid that: A balance has to be struck between the interest of the law on the one hand and the protection of a litigant's private right.........the protection of the right which the law recognises, subject to certain exceptions, as the right of every one to speak freely and to impart information and ideas, upon matters of public knowledge. In that case, the attorney undertook not to disclose the confidential letters to the newspaper reporter. But, contrary to the undertaking, they were disclosed It was contended that the attorney committed civil contempt. While upholding that she committed civil contempt the above need for the balance bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of free and constitutional institutions is the very basis and mainstay upon which the freedom of press rests and that freedom, therefore, does not and cannot be held to include the right to virtually destroy such institution. At page 666, the learned Judge further held that freedom of speech secured by the Constitution does not confer an absolute right to speak or publish without responsibility nor does it confer an unrestricted and unbridled licence that gives immunity for every possible use of language and prevents punishment of those who abuse this freedom. In M.J. Syamala Rao v. Sri Radhakanthaswami Varu 1984-1 APLJ 113 a Division Bench of this Court, following Deena's Case (supra), to which one of us (K Ramaswamy J.) is a party, has. held: The dynamic of the interpretative functioning of the Court is to reflect contemporary needs and the prevailing values consistent with the constitutional and legislative declarations of the policy... The law would respond to the clarian call of social imperatives evolve in that process functional approach as means to sub-serve social premises set out in Part IV of the Constitution and the Act to render economic justice to ryots. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic order', it has been held in paragraph 13 thus: It has been held that in order to be reasonable, restrictions must have reasonable relation to the object which the legislation seeks to achieve and must not go in excess of that object. The restriction made in the interests of public order must also has reasonable relation to the object to be achieved, i.e., the public order. If the restriction has no proximate relationship to the achievement of public order, it cannot be said that the restriction is a reasonable restriction within the meaning of the said clause. (emphasis supplied by inverted commas) In Jamuna Prasad v. Lachi Ram AIR 1957 SC 686 it was held that in the interest of public order is much wider than maintenance of public order. Thus, the expression 'in the interest of public order' is of wide amplitude and it encompasses within its ambit the efficiency of public service when it bears direct and proximate relationship to the subject sought to be achieved. The question is whether there is a direct and proximate relation under Rule 7 (i) when it imposes a complete prohibition on the conduct of a bureaucrat in criticising the Government in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19(1)(g) when assailed, they are held to be reasonable. Therefore when restriction on the exercise of freedom of speech and expression is imposed to secure the standards of conduct on the part of the employees to promote discipline and efficiency and proper conduct in discharge of duty it is in the public interest and can be justified under Article 19(6), apart from under Art. 19(2). This approach also is advocated by the distinguished jurist, Mr. H.M. Seervai, in his 'Constitutional Law of India' (3rd edition Vol. I at Page 555, paragraph 10. 120. This approach would also receive succour from the ratio in Cooper's Case (supra) and Maneka Gandhi's Case (supra). The State has thereby discharged the burden that lay on it. 24. It may also be noted that the contention of the petitioner is that he is voicing his service conditions in the public speech and that it affects his fundamental right to ventilate his grievance relating to his service conditions. It is true that Rule 7 (i), if read in isolation, would give an impression that his right to criticise the Government in relation to his legitimate service conditions would also encompass within Rule 7 (i) But, on a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e It is at best a second hand secondary evidence. It is well known that, reporters collect information and pass it on to the editor who edits the news item and then publishes it. In that process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. In this case, except the statement of the petitioner and the news item, no authentic evidence has been placed before us. Therefore, we hold that the news item is not an evidence and we cannot place any reliance thereon. Under those circumstances we hold that the legal mala fides has not been established. 27. It is seen that every speech is not brought under sweep of Rule 7 (i) of the Conduct Rules. Whether the entire or any portion of the offending speech attracts Rule 7 (i) is now put in issue as one of disputed questions of fact. The respondents are the competent authorities to go into that question. Either their competency or the jurisdiction is not in dispute. If that dispute is traversed here, in the circumstances, we would travel beyond the scope of the writ petition. Therefore, we are declining t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstance get attracted within the ambit of 'public order'? We respectfully think that their Lordships did not intend to lay down that the ratio in OK Ghosh's Case would cover every -area. This becomes clear if we read the dictum in para 10 of 0 K Ghosh's Case extracted supra carefully and analyse the implications naturally flowing therefrom. We had already endeavoured to analyse and found that when there is rational and direct relation to the object sought to be achieved the restriction imposed is permissible and would come within the ambit of the clause 'public order. When we consider from this perspective, we think that it is legitimate to broach, and for the reasons we have adduced in this case, we find it, with all respect to the learned Judges of the Madhya Pradesh High Court, to follow the ratio that efficiency test is not a relevant consideration nor get attracted to Article 19(2). Therefore, with regret, it is difficult to follow the ratio in Bank of India Officers' Association's Case (supra). 31. In Manmohan's case (supra), Hegde J. (as he then was), speaking for the Division Bench, no doubt has declared that Rule 7 (1) of the Mysore Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent has jurisdiction to take disciplinary action. The claim of the State is that even in his private disposition, the petitioner is expected of maintaining unquestionable integrity and conduct and on the admission made by the petitioner in his letter dt. November 3, 1981, given to the Chief Superintendent, Law Examinations, it gives jurisdiction to the respondent to take disciplinary action, in other words, the claim of the State Government is that the allegation pertaining to the private life of a member of the All India Administrative Services is amenable to disciplinary action under Rule 3 (1) of Discipline Rules. The conduct would come within the meaning of the words having regard to the circumstances in any case . Therefore, we have to see what is the meaning to be ascribed to the clause having regard to the circumstances in any case occurring in Rule 3 (1) of Disciplinary Rules. It is to be read along with Rule 3 (1) of Conduct Rules and the clause therein, i.e., and shall do nothing which is unbecoming of a member of the Service . As seen the Conduct Rules and Discipline Rules would operate in the realm of discharge of his duties in his capacity as a member o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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