Government
of Tamil Nadu & Ors Vs. Badrinath & Ors [1987] INSC 287 (15 October
1987)
SEN,
A.P. (J) SEN, A.P. (J) VENKATACHALLIAH, M.N. (J)
CITATION:
1987 AIR 2381 1988 SCR (1) 490 1987 SCC (4) 654 JT 1987 (4) 99 1987 SCALE
(2)747
ACT:
All
India Services (Conduct) Rules, 1968-r. 17-The rule applies to acts done in
exercise of official duties only-No member of the Service is prohibited from
vindicating his private character for any act done by him in his private
capacity.
HEADNOTE:
Respondent
No. 1 who was functioning at the relevant time as the commissioner of Archives
and Historical Research, Tamil Nadu, delivered a speech at a function held by
the History Association of the Presidency College, Madras criticising the time
capsule buried in the precincts of the Red Fort at Delhi which led to a furore
both in Parliament as well as in the national press. The Government, feeling
greatly embarrassed by the controversy, started a disciplinary inquiry against
him on the view that being a civil servant it was not desirable that he should
have participated in a public discussion on the time-capsule but later on
dropped the same. However, just a day before that, a signed news-item appeared
in a newspaper about the controversy regarding the time-capsule stating that a
Government spokesman had charged respondent no. 1 as trying to 'sabotage the
civil services from within'. Having failed in his efforts to ascertain from the
Government the identity of its spokesman who had made this offending utterance
against him or to induce it to issue a contradiction through the Press,
respondent no. 1 addressed a letter to the correspondent of the newspaper
asking him to disclose the name of the Government spokesman. The correspondent,
in his reply, stated that the Government spokesman was respondent no. 2, the
Chief Secretary to the Government, who, during a telephonic conversation with
him, had made the offending utterance. Respondent No. 1 made a representation
to the Government with regard to his grievance in this behalf but, finding that
there was no response, applied for sanction of the Government under r. 17 of
the All India Services (Conduct) Rules, 1968 seeking permission to institute a
suit against respondent no. 2 for damages for defamation. The Government
refused to grant the permission and respondent no. 1 moved the High Court under
Art. 226 of the Constitution against the order of refusal. The writ petition
was dismissed by a Single Judge, who inter alia in his judgment referred to a
concession made by the Advocate 491 General appearing for the appellants that
the act complained of was an official act and, therefore, the intended suit was
to vindicate an official act which was the subject matter of a defamatory
criticism. Respondent No. 1 preferred an appeal under cl. 15 of the Letters
Patent and a Division Bench allowed the appeal holding that the refusal of the
State Government to grant the requisite permission under r. 17 could not be
justified on the ground of public interest. B Allowing the appeals, ^
HELD:
According to its plain terms, r. 17 of the All India Services (Conduct) Rules,
1968 is in the nature of a restraint on a member of the All India Services from
bringing a suit for damages for defamation for an act done in the exercise of
his official duties as a public servant or from going to the press in
vindication of his official act or character. Explanation to r. 17 seeks to
restrict the scope and effect of the restraint placed by r. 17. No member of
the Service is prohibited from vindicating his private character or any act
done by him in his private capacity.
Proviso
thereto however casts on him a duty to report to the Government regarding such
action. [497B-c l In the instant case, respondent no. 1 made a speech
incidentally at a time when he was holding the post of the commissioner of
Archives & Historical Research, at a function organised by the History
Association of the Presidency College, Madras. He was invited to make a speech
on the occasion presumably for his attainments, in the field. But the speech
delivered by him on the occasion could not be treated to be an official act of
his and therefore the suit brought by him against respondent no. 2, the then
Chief Secretary of Tamil Nadu could not be treated to be a suit for the
vindication of his official act. It is common knowledge that persons of
erudition and eminence are often times asked to grace such occasions or make a
speech and when they do so, undoubtedly they give expression to their personal
views on various subjects. By no stretch of imagination can it be said that
while doing so they act in the discharge of their official duties merely
because they happen to hold public office. [499A-D] During the course of his
judgment, the learned Single Judge adverts to paragraph 17 of the writ petition
where respondent no. 1 has averred that his intended suit was to vindicate his
private character and not to vindicate any official act. The case of respondent
no. 1 therefore throughout has been that r. 17 of the Rules was not attracted
to the suit and indeed he specifically aver that he was entitled to file a suit
even 492 without the permission of the Government under r. 17.
However,
he goes on to say that if a suit were to be filed it might land him into
trouble in that disciplinary proceedings might be taken against him for having
instituted a suit without previous permission of the Government. On the
assumption that such sanction was necessary under r. 17, he moved the High
Court for grant of an appropriate writ under art 226 of the Constitution,
apparently by way of ex abundanti cautela. The learned Single Judge did not
deal with the scope and ambit of r. 17 in view of the concession made by the
learned Advocate General. We have no manner of doubt that the appellants are
not bound by the concession made by the learned Advocate General before the
learned Single Judge that the act complained of was an official act.
It
is unfortunate that the State Government was not properly advised at the
earlier stages of the proceedings in insisting upon the view that such
permission was required under r. 17 and that it was justified in refusing to
grant the permission prayed for. The concession made by the learned Advocate
General being on a matter of law is not binding. [498D-G]
Civil
Appellate Jurisdiction: Civil Appeal Nos. 1639-40 of 1987.
From
the Judgment and order dated 20.12.1984 of the Madras High Court in W.P. No.
349 of 1979.
A.K.
Sen and A.V. Rangam for the Appellants.
S.
Rangarajan, Ms. Asha Rani, Sanjay Parikh and Sanjiv Madan for the Respondents.
The
Judgment of the Court was delivered by SEN, J. These appeals by special leave
are directed against a judgment of a Division Bench of the Madras High Court
dated December 20, 1984 reversing the judgment and order of a learned Single
Judge dated March 27, 1979 and allowing the writ petition filed by respondent
no. 1 herein Thiru Chaturvedi Badrinath, a senior member of the Indian
Administrative Service, and directing the issuance of a writ of mandamus
ordaining the State Government of Tamil Nadu from granting the requisite
permission of the Government under r. 17 of the All India Services (Conduct)
Rules, 1968 for the institution of a suit for damages for defamation by him
against respondent no. 2 Thiru V. Karthikeyan, the then Chief Secretary to the
State Government of Tamil Nadu by a defamatory statement that he.
493
allegedly, made to a correspondent of the Indian Express against him. A The
facts. At the relevant time, respondent no. 1 Thiru Badrinath was the
Commissioner of Archives & Historical Research, Tamil Nadu. On September
7,1973 he delivered a speech at a function held by the History Association of
the Presidency College, Madras criticising the time capsule buried in the
precincts of the Red Fort at Delhi and said that it was full of distortions of
historical facts describing it as 'neither history nor fiction'. This led to a
furore both in Parliament as well as in the national press. The Government
feeling greatly embarrassed by the controversy created about the authenticity
of the time capsule, started disciplinary inquiry against respondent no.
1
under rr. 6 and 7 of the All India Services (Conduct) Rules on the view that
being a civil servant it was not desirable that he should have participated in
a public discussion on the time capsule. However, the State Government by a
G.O. dated August 25, 1977 dropped the disciplinary proceedings. Just a day
before i.e. On August 24, 1977 a signed news item appeared in all the editions
of the Indian Express about the controversy regarding the time capsule stating
that a Government spokesman charged respondent no. 1 as trying to 'sabotage the
civil services from within'. Taking umbrage at the offending utterance,
respondent no. 1 addressed a letter dated August 25, 1977 expressing his
anguish that such a statement was made by a Government spokesman, and desired
to know as to who that Government spokesman was; and whether he indeed uttered
the words and if so, whether that reflected the views of the Government. On the
same day, respondent no. 2 in his capacity as the Chief Secretary replied that
he had no information to communicate to him on the subject. On December 5, 1977
respondent no. 1 addressed another letter to respondent no. 2 in the form of a
representation complaining of the defamatory attack on him, demanding that the
Government should issue a contradiction through the press. The Government did
not accede to the demand. In the meanwhile, respondent no. 1 apparently
addressed a letter to a certain Shastri Ramachandran, the press correspondent
of the Indian Express, asking him to disclose the name of the Government
spokesman. The correspondent by his letter dated December 14, 1977 informed
that the Government spokesman was respondent no. 2 who during a telephonic
conversation with him had made the offending utterance. There were certain
other utterances attributed to respondent no. 2 with which we are not
concerned. Upon this, respondent no. 1 by his letter dated December 19, 1977
sought permission to meet the Chief Minister and personally place before him
his grievance set out in his aforesaid representation. The grievance of 494
respondent no. 1 is that the letter was never replied to.
Eventually,
on December 28, 1977 respondent no. 1 applied for sanction of the Government
under r. 17 of the Rules seeking permission to institute a suit against
respondent no. 2 for damages for defamation. This was sought on the ground that
in an interview with Thiru Shastri Ramachandran, the correspondent of the
Indian Express, respondent no. 2 had charged him with trying to sabotage the
civil services from within and that the charge was per se defamatory and was
made with intent to bring disrepute to his career as a scholar and historian
and caused irreparable damage to his reputation as a civil servant. By the
impugned G.O. dated February 7, 1978 the Government refused to grant the
permission applied for to respondent no. 1. Against the refusal respondent no.
1 moved the High Court under Art. 226 of the Constitution for the issuance of a
writ of mandamus and other appropriate writs, directions and orders. A learned
Single Judge (V. Ramaswami, J.) by his judgment and order dated January 23,
1979 dismissed the writ petition on the ground that respondent no. 1 was not
entitled to grant of the requisite permission under r. 17 of the Rules as a
matter of course and it could not be said that the refusal of the Government to
grant such permission was arbitrary, capricious or on irrelevant consideration.
On the contrary, he held that the Government refusal was based on proper
grounds inasmuch as the Government had taken into account all the relevant
considerations including public interest and the interest of maintenance of
discipline in the civil service. The learned Single Judge further observed that
public interest was certainly a proper ground on which the Government could
refuse the permission, if they were of the view that grant of such permission
would expose another officer to unnecessary harassment through vexatious
proceedings or encourage feud among civil servants and that had to be
prevented. Aggrieved, respondent no. 2 preferred an appeal under cl. 15 of the
Letters Patent. A Division Bench (M.M. Chandurkar, CJ and Sathiadev, J.) by its
judgment and order dated December 20, 1984 allowed the appeal holding that the
refusal of the State Government to grant the requisite permission under r. 17
of the Rules could not be justified on the ground of public interest. The
entire judgment of the Division Bench proceeds on the wrongful hypothesis that
the obtaining of prior permission of the Government under r. 17 was a condition
precedent for the maintainability of a suit for damages. It also manifestly
erred in its view that the speech delivered by respondent no. 1 at the function
was in his official capacity as the Commissioner of Archives & Historical
Research and therefore the intended suit fell within the ambit of r. 17 of the
Rules in 495 as much as it was a suit for the vindication of an official act.
We are afraid, it is difficult to sustain the judgment of the Division Bench.
In
exercise of the powers conferred by sub-s. (1) of s. 3 of the All India
Services Act, 1951, the Central Government after consultation with the
Government of the States concerned framed the All India Services (Conduct)
Rules. The Rules are a complete code in itself, obviously designed to frame a
Code of Conduct for the members of the Service to ensure absolute integrity and
devotion to duty and responsibility, in order that there is a fearless and
impartial civil service in existence in the country. They form the bullwork of
the executive power of the Union and the States and also form the
instrumentality through which such powers have to be exercised. The key
provision is the one contained in r. 3 which is spinal importance and reads:- "3.
General-(1) Every member of the Service shall at all times maintain absolute
integrity and devotion to duty and shall do nothing which is unbecoming of a
member of the Service.
(2)
Every member of the Service shall take all possible steps to ensure integrity
of, and devotion to duty by, all Government servants for the time being under
his control and authority.
(3)
(i) No member of the Service shall, in the performance of his official duties,
or in the exercise of powers conferred on him, act otherwise than in his own
best judgment to be true and correct except when he is acting under the
direction of his official superior.
(ii)
The direction of the official superior shall ordinarily be in writing. Where
the issue of oral direction becomes unavoidable, the official superior shall
confirm it in writing immediately thereafter.
(iii)
A member of the Service who has received oral direction from his official
superior shall seek confirmation of the same in writing as early as possible
and in such case; it shall be the duty of the official superior to confirm the
direction in writing.
496
Explanation:-Nothing in clause (i) of sub-rule (3) shall be construed as
empowering a Government servant to evade his responsibilities by seeking
instructions from or approval of, a superior officer or authority when such
instructions are not necessary under the scheme of distribution of powers and
responsibilities." After laying down a rigorous code by framing r. 3 to
ensure that members of such. service discharge their duties and functions with
absolute integrity and do nothing which is unbecoming of a member of the
Service, the Central Government has provided by rr. 4 to 20 the various
constraints under which the members of the Service must function. These rules
necessarily form part of their conditions of service under sub-s. (1) of s. 3
of the All India Services Act. Rule 4 places a restraint on the use of position
or influence to secure directly or indirectly employment of near relations in a
private organisation, r. 5 on taking part in politics and contesting elections,
r. 6 on having connection with the mass media, the press or the radio, r. 7 on
engaging in criticism of Government, r. 8 on giving evidence before any
committee, person or other authority except with the previous sanction of the
Government, and where such sanction has been accorded, on giving evidence
criticising the policy or any action of the Government, r. 9 on un-authorised
communication of information, r. 10 on asking for or accepting contributions to
or raising of public subscription, r. 11 on accepting gifts, r. 11A on giving
or taking of dowry, r. 12 on taking part in public demonstration, r. 13 on
private trade or employment, r. 14 on investment, lending and borrowing, r.
15
on insolvency and habitual indebtedness, r. 16 on acquisition of property,
movable or immovable, r. 17 on having recourse to any Court or the press for
the vindication of an official act or character, r. 18 on canvassing for
others, r. 19 on taking a second spouse and r. 20 on consumption of
intoxicating drinks and drugs.
A
close analysis of these Rules clearly brings out that the provision contained
in r. 17 is nothing but a restraint on a member of the Service. Rule 17 of the
Rules read with the Explanation thereto provides as follows;
"
17. Vindication of acts and character of members of the Service-No member of
the Service shall, except with the previous sanction of the Government have
recourse to any court or to the press for the vindication of official act which
has been the subject matter of adverse criticism or attack of a defamatory
character.
497
Explanation-Nothing in this rule shall be deemed to A prohibit a member of the
Service from vindicating his private character or any act done by him in his
private capacity.
Provided
that he shall submit a report to the Government regarding such action."
According to its plain terms, r. 17 is in the nature of a restraint on a member
of the All India Services from bringing a suit for damages for defamation for
an act done in the exercise of his official duties as a public servant or from
going to the press in vindication of his official act or character. Explanation
to r. 17 seeks to restrict the scope and effect of the restraint placed by r.
17. No member of the Service is prohibited from vindicating his private
character for any act done by him in his private capacity.
Proviso
thereto however casts on him a duty to report to the Government regarding such
action.
Analysing
the provision of r. 17 Sri Asoke Sen, learned counsel for the appellants
contends that to attract r. 17 three conditions must be fulfilled, namely: (1)
The intending plaintiff must be a member of the Service. (2) The suit must be
for the vindication of his official act or character. (3) The official act must
be the subject of a defamatory statement. According to the learned counsel,
though two of the conditions are fulfilled, namely: (1) that respondent no. 1
was a member of the Service and (2) the subject matter viz. the statement made
by respondent no. 2 and alleged to be of a defamatory character was made by him
in his official capacity as the Chief Secretary, there was non-fulfilment of
the third condition. He rightly urges that the speech delivered by respondent
no. 1 criticising the authenticity of the time capsule was merely an expression
of opinion on his private capacity. In substance, the contention is that r. 17
read with the Explanation thereto clearly places such private acts outside the
purview of the restraint placed by r. 17.
The
contention to the contrary by respondent no. 1 Thiru Badrinath was that it was
not open to the appellants to say that r. 17 was not attracted and he drew our
attention to the concession made by the learned Advocate General as reflected
in the judgment of the learned Single Judge:
"The
learned Advocate General also stated that the act complained of was an official
act and, therefore, the intended suit was to vindicate an official act which
was the subject matter of a defamatory criticism. Therefore, we H 498 have to
proceed on the basis that the criticism which is A complained of as defamatory
related to an official act of the petitioner.
In
view of this concession, he contends that it is now not open to the t
appellants to say that r. 17 was not attracted.
In
dealing with these contentions, it is. rather pertinent to observe that the
learned Single Judge did not record a finding that r. 17 of the Rules was not
attracted in the facts and circumstances of the case. After setting out the
provision contained in r. 17, he observes that the requirement of r. 17 are
that (i) the act which has been the subject matter of adverse criticism should
be an official act and (ii) the criticism of the attack must be defamatory in
character. We are entirely in agreement with the view expressed by the learned
Single Judge. No construction other than the one reached by him is possible.
During
the course of his judgment, the learned Single Judge adverts to paragraph 17 of
the writ petition where respondent no. l has averred that his intended suit was
to vindicate his private character and not to vindicate any official act. The
case of respondent no. 1 therefore throughout has been that r. 17 of the Rules
was not attracted to the suit and indeed he goes on to aver that he was
entitled to file a suit even without the permission of the Government under r.
17. However, he goes on to say that if a suit were to be filed it might land
him into trouble in that disciplinary proceedings might be taken against him
for having instituted a suit without previous permission of the Government. On
the assumption that such sanction was necessary under r. 17, he moved the High
Court for grant of an appropriate writ under Art. 226 of the Constitution,
apparently by way of ex abundanti cautela. The learned Single Judge did not
deal with the scope and ambit of r. 17 in view of the concession made by the
learned Advocate General.
We
have no manner of doubt that the appellants are not bound by the concession
made by the learned Advocate General before the learned Single Judge. It is
unfortunate that the State Government was not properly advised at the earlier
stages of the proceedings in insisting upon the view that such permission was
required under r. 17 and that it was justified in refusing to grant the
permission prayed for.
The
concession made by the learned Advocate General being on a matter of law is not
binding. That apart, Sri Ashoke Sen, learned counsel for the appellants has
very fairly accepted the point of view put forth by respondent no. 1 in the
writ petition that no such permission was required.
499
In the premises, the decision of the Division Bench appealed from suffers from
a serious infirmity. In the instant case, respondent no. 1 Thiru Badrinath made
a speech incidentally at a time when he was holding the post of the
Commissioner of Archives & Historical Research, at a function organised by
the History Association of the Presidency College, Madras. He was invited to
make a speech on the occasion presumably for his attainments in the field.
But
the speech delivered by him on the occasion could not be treated to be an
official act of his and therefore the suit brought by him against respondent
no. 2 Thiru V. Karthikeyan, the then Chief Secretary of Tamil Nadu could not be
treated to be a suit for the vindication of his official act. It is common knowledge
that persons of erudition and eminence are often times asked to grace such
occasions or make a speech and when they do so, undoubtedly they give
expression to their personal views on various subjects. By no stretch of
imagination can it be said that while doing so they act in the discharge of
their official duties merely because they happen to hold public office.
At
the end of the day, we wish to mention that Thiru Badrinath stated before us
that he had filed the suit in the High Court for damages for defamation against
respondent no.
2
Thiru V. Karthikeyan without waiting for the prior permission of the State
Government under r. 17 of the Rules and that the suit was filed before the
expiry of the period of limitation of one year as provided for by Art. 75 of
the Limitation Act, 1963. He further stated that the Registry of the High Court
however returned the plaint with the endorsement that the same be presented
after the decision in the writ petition. He drew our attention to the averment
in paragraph 22 of his affidavit-in-reply to the effect:
"I
respectfully submit that, at the time I had filed W.P. No. 979/1978 against Go
dated the 7th February, 1978, 1 had formally presented to the Registry of the
Madras High Court a civil suit for defamation against the Chief Secretary. I
was advised to do this in order to prevent the time limit for such suits from
expiring, should the decision in the writ petition be that, the defamatory
attack on me by Shri Karthikeyan being of a personal kind I was covered by the
proviso in Rule 17 and would not, therefore, require government sanction under
Rule 17. Quite correctly, after a note being made of the date on which the suit
was presented, it was returned to me, saying that it would have to wait for a
decision in the writ petition. Following the judgment in the writ appeal,
setting aside the decision in W.P.979/1978, I have been waiting for government
sanction.
It
also transpires that the suit was filed by respondent no.
1
without serving a notice as required under s. 80 of the Code of Civil
Procedure, 1908. We refrain from expressing any opinion as to whether the
return of the plaint for representation after the decision of the writ petition
would save the running of the time. The questions whether the suit is barred by
limitation or not, or whether the same was competent without a notice under s.
80 of the Code, are question to be determined by the High Court in the suit.
Accordingly,
the appeals must succeed and are allowed.
The
judgment and order passed by the Division Bench of the High Court are set aside
and that of the learned Single Judge dismissing the writ petition restored. The
High Court will now proceed with the suit brought by respondent no. 1 in
accordance with law. The rights and n contentions of the parties are left open.
There
shall be no order as to costs.
H.L.C.
Appeals allowed.
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