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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.