M.H. Devendrappa
Vs. The Karnataka State Small Industries Development Corporation [1998] INSC
103 (17 February 1998)
Sujata
V. Manohar, D.P. Wadhwa Mrs. Sujata V. Manohar. J.
ACT:
HEAD NOTE:
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.
The
following Judgment of the Court was delivered:
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
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
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 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 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
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 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 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.
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