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PETITIONER: GOVERNMENT OF TAMIL NADU & ORS.

       Vs.

RESPONDENT: BADRINATH & ORS.

DATE OF JUDGMENT15/10/1987

BENCH: SEN, A.P. (J) BENCH: 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

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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

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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]

JUDGMENT:      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

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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   corresondent  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

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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 asmuch 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

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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   unauthorised   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 convassing 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

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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.

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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 judg- 500           ment  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

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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. 501