Full Judgment Text
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PETITIONER:
M.H. DEVENDRAPPA
Vs.
RESPONDENT:
THE KARNATAKA STATE SMALL INDUSTRIESDEVELOPMENT CORPORATION
DATE OF JUDGMENT: 17/02/1998
BENCH:
SUJATA V. MANOHAR, D.P. WADHWA
ACT:
HEADNOTE:
JUDGMENT:
THE 17TH DAY OF FEBRUARY, 1998
Present:
Hon’ble Mrs. Justice Sujata V.Manohar
Hon’ble Mrs. Justice D.P. Wadhwa
Mr. S.S. Javali, Sr. Advocate and Mr. P.R. Ramasesh,
Advocate with him for the respondent.
J U D G M E N T
The following Judgment of the Court was delivered:
Mrs. Sujata V. Manohar. J.
At the material time the appellant was the Assistant
Manager of the respondent-karnataka State Small Industries
Development Corporation (KSSIDC), Bangalore. He was also the
President of the Karnataka State Small Industries
Development Corporation Employees’ Welfare Association,
Bangalore.
On 3rd of June, 1977 the appellant addressed a letter
to the Governor of Karnataka on behalf of the Karnataka
State Small Industries Development Corporation Employees’
Welfare Association in which he stated that the KSSIDC
Corporation was likely to be wound up on account of bad
administration, corruption and nepotism. He said that till
1977 the Corporation was running at a profit. However, since
then it was sustaining continuous losses. In the letter it
was alleged that several persons were being appointed in the
Corporation who were not properly qualified at the instance
of political leaders and ministers. The letter set out some
instances of these kinds of appointments. There were also
allegations in the letter about the nexus between
contractors for various projects and the management of the
Corporation. There were also some allegations about cement
purchased form the Corporation being diverted and various
such alleged malpractices in general terms. The letter
requested the Governor to arrange to investigate the working
conditions of the said Corporation. The letter had no
connection which the service conditions of the employees or
the objects of the Employees’ welfare Association.
On 31st of December 1977, the appellant issued a press
statement which was published in a Kannada Daily called
Samyuktha Karnataka of the same date. The appellant isued a
statement welcoming the dismissal of Mr. S.C. Venkatesh, who
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was then the Chairman of the appellant-Corporation from the
Presidentship of the Bangalore City District Congress
Committee. The appellant also expressed the hope that
political leaders would prevail upon the Government and
remove Mr. S.C. Venkatesh from the Presidentship of the
respondent-Corporation thereby saving lakhs or rupees as Mr.
S.C. Venkatesh was doing illegal activities.
In January, 1978 the respondent wrote to the appellant
seeking confirmation about the authorship of the letter
which had been sent to the Governor and asking for his
explanation as to why disciplinary action should not be
taken against him. Thereupon the appellant went on leave
from 9th of January 1978 till 31st of January, 1978. The
appellant absented himself from duty from 9th of January,
1978 and on 12th of January, 1978 he sent a telegram to the
respondent seeking commuted leave from 9.1.1978 to
31.1.1978. On 1st of February, 1978 the respondent published
a notice in the newspaper calling upon the appellant to
report back for duty within seven days. By letter of 9th of
February, 1978, the appellant was asked to show cause in
writing as to why disciplinary action should not be taken as
per Rule 22 of the Service Rules of the Corporation. The
appellant sent a reply dated 17.2.1978.
Thereafter on 11.4.19778 three articles of charge were
served on the appellant. The charges were to the following
effect:
Charge No.1 was to the effect that he had written a
letter dated 3.6.1977 to the Governor of Karnataka pointing
out mismanagement in the respondent-Corporation. Being an
employee of the Corporation he could not address the letter
to the Governor without permission of the management. This
amounted to violation of Rule 22 of the Service Rules of the
Corporation, since it was misconduct and knowingly doing
something detrimental to the interests and the prestige of
the Corporation.
Charge No.2 was to the effect that the appellant had
issued a statement in Samyukta Karnataka Kannada Daily dated
31.112.1997 attributing motives to the then Chairman of the
respondent-Corporation and welcoming his dismissal from the
Presidentship of the Bangalore District Congress Committee.
Being an employee of the Corporation he could not issue a
press statement of a political nature of indulge in
political activities which amounted to gross misconduct and
knowingly committing an action detrimental to the interests
or prestige of the Corporation.
The third charge was to the effect that his act of
leaving the office unauthorisedly with effect from 9.1.1978
and staying away from his legitimate work amounted to
misconduct.
The appellant submitted a written statement dated
27.4.1978 in which he stated that he had already filed a
suit before the District Court, Bangalore for a Declaration
and injunction. He stated that all his actions were in his
capacity as the President of the respondent-Employees’
Welfare Association and that the enquiry against him was
illegal and without jurisdiction and was in mala fide
exercise of power. He also sought to justify what he stated
in the letter to the Governor.
In the Civil suit no injunction was granted. The
enquiry proceeded. On 31.5.1978 the appellant stated before
the Enquiry Officer that he would not participate in the
enquiry. Thereafter the enquiry against him was held ex
parte and he was held guilty. On receipt of the report of
the Enquiry Officer, the disciplinary authority issued a
show cause notice to the appellant dated 19.6.1978 in which
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it was pointed out that the first two charges had been held
proved against him while the third charge had been held as
partly proved. In view thereof the appellant was asked to
show cause why action should not be taken against him
dismissing him from service. The appellant sent a reply
dated 24.6.1978.
On 14.7.1972 an order was passed dismissing the
appellant from service. The appellant filed a writ petition
before the High Court of Karnataka challenging the order of
dismissal. A learned Single Judge of the High Court
dismissed the writ petition. The appeal of the appellant
before a Division Bench of the High Court has also been
dismissed. Hence the present appeal has been filed.
Rule 22 of the Service Rules of the respondent-
Corporation as set out by the appellant in his special leave
petition before this Court, is as follows:-
"An employee, who commits a breach
of these rules or displays
negligence, inefficiency or in-
subordination, who knowing does
anything detrimental to the
interests or prestige of the
Corporation or in conflict with
official instructions or is quality
of any instructions or is guilty of
any activity of misconduct or
misbehavior shall be liable to one
or more of the following
penalties."
The other relevant Rule 18 Rule 19 which is as follows:
"19. Participation in Politics:
No employee shall be a member of or
otherwise associate with any
political party in politics nor
shall he take part in, subscribe in
aid of, or assist in any political
movement or activity."
It is the contention of the appellant that in writing
the letter of 3rd June, 1977 to the Governor of Karnataka
and releasing the press statement of 31.12.1977 he had
exercised his fundamental right of freedom of speech and
expression under Article 19(1) (a) as also he had exercised
his right to form associations or unions under Article
19(1)(c) of the Constitution and that he could not be
dismissed from service when he had exercised his fundamental
rights under Article 19(1)(a) and 199(1)(c). This is the
issue that needs to be examined.
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 Corporation, and to protect the interests
and prestige of the Corporation. Therefore, under Rule 22 an
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employee who disobeys the service Rules or displays
negligence, inefficiency or in-subordination or does
anything detrimental to the interests or prestige of the
Corporation or acts in conflict with official instructions
or is quality 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 association 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 case of P. Balakotaiah vs. The Union of India &
Ors. (1958 SCR 1052) certain railway employees who belonged
to a Workers’ Union sponsored by the Communists carried on
agitation for a general strike in order to paralyse
communications and movement of essential supplies. They were
charge-sheeted and their services were terminated. The
charges showed that the action was taken against the
employees not because they were Communists or trade-
unionists but because they were engaged in subversive
activities. This Court said that there is no contravention
of Article 10(1)(c) by the impugned order. The impugned
order did not prevent the workers from continuing to be
Communists or trade-unionists. Their right in that behalf
remained as before. The real complaint of the workers was
that their services had been terminated and this did not
involve infringement of any of their constitutional rights
apart from Article 311. This court said, "The appellants
have not doubt a fundamental right to form associations
under Article 19(1)(c) but they have to fundamental right to
be continued in employment by the Stat e and when their
services are terminated by the State they cannot complain of
the infringement of any of their constitutional rights when
no question of violation of Article 311 arises" (page 1064).
However, in the case of Kameshwar Prasad & ors. vs. The
State of Bihar & Anr. [(1962) Supp. 3 SCR 369],
Balakothaiah’s case (supra) was distinguished on the ground
that the Service Rules had not been challenged as ultra
vires in that case. In Kameshwar Prasad’s case (supra) there
was a challenge to Rule 4A of the Bihar Government Servants
Conduct Rules in so far as it prohibited any form of
demonstrations by Government servants. This court said that
a Government servant, by accepting Government service, did
not lose his fundamental rights under Article 19 and that,
Rule 4A in so far as it prohibited all kinds of
demonstrations, whether orderly or disorderly, would be
violative of Article 19(1)(b) which secured the right to
assemble peaceably and without arms. The Court felt that the
Rule was so worded that it was not possible to make a
distinction under the Rule between demonstrations which
could be peaceful and demonstrations which could be violent.
So that it was not possible to say that to the extent that
the Rule prohibited violent demonstrations, which may result
in breach of public order, the Rule was valid. The entire
Rule, therefore, in so far as it prohibited demonstrations,
was struck down. However, while doing so, the Court said the
following (page 384):
"We have rejected the broad
contention that persons in the
service of Government form a class
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apart to whom the rights guaranteed
by Part III do not, in general,
apply. By accepting the contention
that the freedoms guaranteed by
Part III and in particular those in
Article 19(1)(a) apply to the
servants of Government, we should
not be taken to imply that in
relation to this class of citizens
the responsibility arising from
official position would not be
itself impose some limitations on
the exercise of their rights as
citizens."
[underlining ours]
Illustrations would be, the duty to maintain the
secrecy of voting by an officer or clerk engaged in election
duty, the duty to maintain confidentiality of defence
strategies, and so on. Therefore, in Kameshwar Prasad’s case
(supra) this Court made it clear that it was not in any
manner affecting by the said Judgment, the Rules of
Government service designed for proper discharge of duties
and obligations by Government servants, although they may
curtail or impose limitations on their rights under Part III
of the Constitution.
In the case of O.K. Ghosh & Anr. V. E.X. Joseph [(1963)
Supp. 1 SCR 789 at 794], the respondent, a Central
Government servant, who was the Secretary of the Civil
Accounts Association was departmentally proceeded against
under Rules 4(A) and 4(8) of the Central Civil Services
(Conduct) Rules, 1955, for participating in demonstrations
in preparation of a general strike and for refusing to
dissociate from the Association after the Government had
withdrawn its recognition of it. This Court set aside Rule
4(B) as invalid and violative of Article 19(1)(c). The Rule
provided that no Government servant shall join or continue
to be a member of any services association which the
Government did not recognise or in respect of which
recognition had been refused or withdrawn by it. This Court
said that Rule 4(B) imposed a restriction on the undoubted
right of a Government servant under Article 19(1)(c) which
was neither reasonable nor in the interest of "public order"
under Article 19(4). Because, in granting or withdrawing the
recognition, the Government might be actuated by
considerations other than those of efficiency or discipline
amongst the services or consideration of public order.
However, Government servants can be subjected to Rules which
are intended to maintain discipline within their ranks and
which lead to an efficient discharge of their duties. The
Court observed, (page 794): "There can be no doubt that
Government 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 clause (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............
A restriction can be said to be in the interests of public
order only if the connection between the restriction and the
public order is proximate and direct."
In all these cases, this Court has been at pains to
point out that Service Rules can be framed to maintain
efficiency and discipline within the ranks of Government
servants. in the case of O.K.Ghosh (supra), this Court
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considered such Rules as being saved by the "public order"
clause under Article 19(4). In the present case, the
restraint is against doing anything which is detrimental to
the interests or prestige of the employer. The detrimental
action may consist of writing a letter or making a speech.
It may consist of holding a violent demonstration or it may
consist of joining a political organisation contrary to the
Service Rules. Any action which is detrimental to the
interests or prestige of the employer clearly underlines
discipline within the organisation and also the efficient
functioning of that organisation. Such a Rule could be
construed as falling under "public order" clause as
envisaged by O.K. Ghosh (Supra).
The same requirements of Rule 22 can be better looked
at from the point of view of Article 19(1)(9) as
requirements in furtherance of the proper discharge of the
public duties of Government services. Rules which are
directly linked to and are essential for proper discharge of
duties of a public office would be protected under Article
19(1)(g) as in public interest. If these Rules are alleged
to violate other freedoms under Article 19, such as, freedom
of speech or expression or the freedom to form associations
or unions or the freedom to assemble peaceably and without
arms, the freedoms have to be read harmoniously so that
Rules which are reasonably required in furtherance of one
freedom are not struck down as violating other freedoms.
Seervai in "Constitutional Law of India", Vol.l page 816,
para 10.238 states ".........a civil servant is following a
profession or occupation within the meaning of Article
19(1)(g). Whereas his right to freedom of speech and
expression, or the right to form an association can be
subject only to reasonable restrictions in the interest of
public order or morality, his right to carry on his
profession or calling can be made subject to reasonable
restrictions in the public interest. If the true scope and
object of an impugned rule is not to deal with freedom or
speech or freedom of association but to secure standards of
conduct necessary for the efficient and proper discharge of
a profession or calling, in the public interest, then such
restrictions can be justified under Article 19(6), although
they cannot be justified under Article 19(2) and
(3)..........."
The fundamental freedoms enumerated under Article 19
are not necessarily and in all circumstances mutually
supportive, although taken together they weave a fabric of a
free and equal democratic society. e.g. the right to reside
and settle in any part of the country can be put in jeopardy
by a vociferous local group freely expressing its view
against persons from another part of the country. Freedom of
speech of one affects the freedom movement of another.
Exercising the right to form an association may curtail the
freedom to express views against its activities. For
example, a person joining an association to promote
adoptions cannot express anti-adoption views. He may lose
his membership. Some restriction on one’s rights may be
necessary to protect another’s rights in a given situation.
Proper exercise of rights may have, implicit in them,
certain restrictions. The rights must be harmoniously
construed so that they are properly promoted with the
minimum of such implied and necessary restrictions. In the
present case, joining Government service has, implicit in
it, if not explicitly so laid down, the observance of a
certain code of conduce 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
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will be vigilant to see that the code is not so widely
framed as to unreasonably restrict fundamental freedom. But
a 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.
That is why is Balakothaiah’s case (supra) this Court
said that a person who wanted to exercise his other freedoms
under Article 19(1)(a) or (c) may do so, but then he could
not insist that he be retained in Government service if the
Service Rules for the proper functioning of the organisation
were breached in the process, except to the extent he was
protected by Article 311. If freedom of speech of an
individual Government employee is circumscribed by the need
for efficiency or discipline or confidentiality in public
interest, the individual exercises his freedom of speech in
a manner conflicting with these requirements at the risk of
facing disciplinary action. This does not mean that
legitimate action discreetly and properly taken by a
Government servant with a sense of responsibility and at the
proper level to remedy any malfunction in the organisation
would also be barred. However, such is not the case here.
Also, a person who legitimately seeks to exercise his rights
under Article 19 cannot be told that you are free to
exercise the rights, but the consequences will be so serious
and so damaging, that you will not, in effect, be able to
exercise your freedoms. For example, a person may be told
that you are free to express your opinion against the State,
but if you do so, you will be put behind bars. This is
clearly deprivation of freedom of speech. Therefore, what we
have to consider is the reasonableness of Service Rules
which curtail certain kinds of activities amongst Government
servants in the interests of efficiency and discipline in
order that they may discharge their public duties as
Government servants in a proper manner without undermining
the prestige of efficiency of the organisation. If the Rules
are directly and primarily meant for this purpose, they
being in furtherance of Article 19(1)(9). can be upheld
although they may indirectly impinge union some other limbs
of Article 19 qua an individual employee. As the above cases
show, courts have made sure that such impingement is
minimal, and Rules are made in public interest and for
proper discharge of public duties. A proper balancing of
interests of an individual as a citizen and the right of the
State to frame a code of conduct for its employees in the
interest of proper functioning of the State, is required.
A somewhat similar view seems to have been taken in
other commonwealth jurisdictions as well. The appellant draw
our attention to the case of Marvin L.Pickering V. Board of
Eduction of Township High School [391 US 563]. In that case
a public school teacher wrote a letter to the editor of 8
local newspaper criticising the way in which the Board of
Education and the superintendent of schools had handled past
proposals to raise new revenue for the schools. After the
letter was published, the board of education determined that
its publication was detrimental to the efficient operation
and administration of the schools of the district. An cation
was taken against the teacher dismissing him from service.
The teacher contended that his remarks and comments in the
letter were protected by the constitutional right of free
speech. The United Sates Supreme Court said: "A state has
interests as an employer in regulating the speech of its
employees that differ significantly from those that it
possesses in connection with regulation of the speech of the
citizenry in general. Where a public school teacher contends
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that his dismissal is violative of his constitutional right
to free speech, it is necessary to arrive at a balance
between the interests of the teacher, as a citizen, in
commenting upon matters of public concern, and the interest
of the state, as an employer, in promoting the efficiency of
the public services that it performs through its employees."
The Court after examining the contents of the letter held
that the letter had made no allegations against any
individual official, nor had it made any personal
allegations against any member of the board of education.
The letter was confined to criticising only the policy. In
the view of the Court, this would not, in any way, affect
the efficient functioning of the teacher within the
organisation. The United States Supreme Court, therefore,
set aside the order of dismissal. Another commonwealth
country has recently considered a somewhat similar case. The
Court of Appeal of Antigua and Barbuda in the case
Permanent Secretary, Ministry of Agriculture & Ors. V. De
Freitas (1996 (1) CHRB 1) considered the case of a civil
servant employed by the Ministry of Agriculture who took
part in demonstrations organised by an opposition political
party against political corruption. He carried a placard
against his own minister. Refuting the contention that his
right to freedom of expression and assembly under the
Constitution had been violated, the court said that there
must be an implied presumption that imposes restriction upon
public officers that are reasonably required for the proper
performance of their functions and which are reasonably
justifiable in a democratic society. A presumption of
constitutionality of such provisions has to be implied in
the constitutional rights and their constitutionality has to
be upheld.
In the present case, the appellant had made direct
public attack on the head of his organisation. He had also,
in the letter to the Governor, made allegations against
various officers of the corporation with whom he had to work
and his conduct was clearly detrimental to the proper
functioning of the organisation or its internal discipline.
Making public statements against the head of the
organisation on a political issue also amounted to lowering
the prestige of the organisation in which he worked. On a
proper balancing, therefore, of individual freedom of the
appellant and proper functioning of the Government
organisation which had employed him, this was a fit case
where the employer was entitled to take disciplinary action
under Rule 22.
We, therefore, agree with the findings of the High
Court and dismiss the appeal. There will, however, be no
order as to costs.