Gujarat High Court
Jigneshkumar Gangarambhai Patel vs State Of Gujarat on 30 September, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/9000/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9000 of 2020
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JIGNESHKUMAR GANGARAMBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR RADHESH VYAS, ADVOCATE WITH MR BHAVESH J PATEL(6801) for
the Petitioner(s) No. 1
MR KM ANTANI, ASST GOVERNMENT PLEADER(1) for the Respondent(s)
No. 1,2
MR HS MUNSHAW(495) for the Respondent(s) No. 3
NOTICE SERVED(4) for the Respondent(s) No. 4,5
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CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 30/09/2020
ORAL ORDER
1. Heard Mr. Radhesh Vyas, learned advocate for the petitioner, Mr. K.M. Antani, learned AGP appearing for respondents no. 1 and 2 and Mr. H.S. Munshaw, learned advocate for the respondents no. 3 and 4 through video conferencing.
2. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the order dated 20.07.2020 suspending the petitioner in exercise of powers under the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1997 (for short 'the Rules'), particularly Rule 5 thereof.
3. Apart from the prior history of service details elaborately stated in the petition, the petitioner at the time of suspension was working as a Primary Teacher at Por Primary School under the District Primary Education Officer, Vadodara (DPEO). By the order dated 20.07.2020, Page 1 of 15 Downloaded on : Fri Oct 02 00:23:57 IST 2020 C/SCA/9000/2020 ORDER the petitioner has been suspended from service. Reading the order of suspension indicates that the petitioner on 17.07.2020 posted on the Facebook, a Gujarati post, the translated version of which would read as under:
"That the statement of the Education Minister is not trustworthy and it is a chinese statement"
3.1 The post on facebook was made through his mobile phone. Reading of the order of suspension indicates and so also from the affidavit-in-reply where the posts are produced, that as a teacher in a group of colleagues on the Facebook he had liked posts criticizing the functions of the officials of the Education Department in branding them as three monkeys who see nothing, hear nothing or talk nothing. These posts were in context of the assurance given by the Minister of Education for redressing the grievance of the teachers in context of their demand for grade pay of Rs.4200/-.
3.2 One of the posts on facebook read as under:
"This man Rao has done nothing and only addresses the media. Remove him from Vadodara City"
The person referred to as 'Rao' in the post is the Secretary, Education Department. The order of suspension indicates that since the petitioner has violated Rule 9 of the Gujarat Panchayat Service Conduct Rules, he is placed under suspension.
4. Mr. Radhesh Vyas, learned advocate for the petitioner has vehemently argued that the order of suspension entails serious civil consequences and therefore must be quashed and set aside. He would Page 2 of 15 Downloaded on : Fri Oct 02 00:23:57 IST 2020 C/SCA/9000/2020 ORDER further submit that on a show cause notice being issued on 17.07.2020, the petitioner came upfront and tendered an unconditional apology as according to him, the posts were made under the stress of the corona pandemic afflicting the State. Mr. Vyas would invite the attention of the court to the checklist and submit that the authorities have branded the petitioner as mentally unstable which is misconceived and causes grave and irreparable injury to the stature of the petitioner as a teacher. Mr. Vyas would pitch his argument on the anvil of the statement being a right enshrined inasmuch as Article 19(1)(a) of the Constitution of India which gives him the right to freedom of speech and expression and the government cannot be intolerant inasmuch as finding these facebook posts as being so inconvenient to order suspension.
4.1 In support of his submissions, Mr. Vyas places reliance on the decision of the Bombay High Court (Aurangabad Bench) in the case of Jayant Sarvottamrao Kharwadkar vs. The State of Maharashtra rendered in Writ Petition No. 2302 of 2018. He would submit that before the Bombay High Court it was the case in which an Assistant Town Planner in the Town Planning Department of the Municipal Corporation was issued a chargesheet for commenting on facebook about unworthy persons who got an opportunity to speak in the House. The contention of the petitioner therein was that the comment was not directed against any political party as a class and there was freedom of speech and expression. He would rely on paras 12 to 20 of the decision and submit that these communications are not having anything to do with the official functioning of the corporation and are only in consonance with his private act which could not have been viewed seriously so as to invite an order of suspension. The relevant paras read as under:
"12 The private conduct of the petitioner in uploading the post on social media for limited circulation cannot be linked with his official functions of officer of Corporation. There is Page 3 of 15 Downloaded on : Fri Oct 02 00:23:57 IST 2020 C/SCA/9000/2020 ORDER absolutely no link between the alleged private act and his functions in the capacity of officer or Corporation servant. Even otherwise also, act of expressing oneself cannot be branded as unbecoming of a public servant. The enquiry into private conduct of petitioner is without authority and is in excess of law. The impugned action is surely beyond scope of Rule 3 of of Rules of 1973.
13 The petitioner contends that freedom of expression is a part of the fundamental rights and same cannot be taken away. It needs to be considered that Article 19(1)(a) of the Constitution has to be interpreted in a manner by which the fundamental right to freedom of speech and expression is nourished. The words, "freedom of speech and expression"
find place in the association words "liberty of thought, expression, belief, faith and worship", which form a part of the Preamble of the Constitution. The Preamble has its own sanctity and the said concepts have been enshrined in the Preamble. Interpreting Article 19(1)(a) of the Constitution, the test is always to see Article 19(1)(a) in aid of the Preambular objectives which form a part of the basic structure of the Constitution. Article 19(1)(a) is intrinsically linked with the Preambular objectives and it is the duty of the Court to progressively realise the values of the Constitution.
14 It would be apt to refer to some of the observations made by the Hon'ble Supreme Court in the matter of Shreya Singhal Vs. Union of India, 2015 (5) SCC 1. A very important question of far-reaching consequences relating to fundamental right of "freedom of speech and expression"
guaranteed under Article 19(1)(a) of the Constitution of India, in reference to Section 66A of the Information Technology Act of 2000, was considered by the Hon'ble Apex Court. Referring to the judgment in the matter of S. Khushboo V. Kanniamal & another, (2010) 5 SCC 600, it is observed that the importance of freedom of speech and expression, though not absolute, was necessary as we need to tolerate unpopular views. This right requires the free flow of opinions and ideas essential to sustain the collective life of the citizenry. While an informed citizenry is a precondition for meaningful governance, the culture of open dialogue is generally of great societal importance. In Page 4 of 15 Downloaded on : Fri Oct 02 00:23:57 IST 2020 C/SCA/9000/2020 ORDER paragraph no.13 of the judgment, the Hon'ble Supreme Court has observed thus:
"13 This leads us to a discussion of what is the content of the expression "freedom of speech and expression".
There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc. Why it is important to have these three concepts in mind is because most of the arguments of both petitioners and respondents tended to veer around the expression "public order"."
15 In the matter of Secretary, Ministry of Information & Broadcasting, Government of India and Others. Vs. Cricket Association of Bengal and another, (1995) 2 SCC 161, the Hon'ble Supreme Court, after reciting Article 10 of the European Convention on Human Rights, went on to observe (at page 213):
" The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self- expression which is an important means of free conscience and self-fulfilment. It enables people to contribute to debates on social and moral issues. It is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore, includes right to communicate through any media that is available Page 5 of 15 Downloaded on : Fri Oct 02 00:23:57 IST 2020 C/SCA/9000/2020 ORDER whether print or electronic or audio- visual such as advertisement, movie, article, speech, etc.".
16 Surely, sub-article (2) of Article 19 provides for restriction on the right to freedom of speech and expression and the restriction makes an exception in respect of operation of any existing law insofar as it relates to, or prevents the State from making any law relating to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State."
17 Learned Counsel for the Respondent-Corporation has invited our attention to the judgment delivered by the Division Bench of Andhra Pradesh High Court in the matter of Union of India and another Vs. Mahendra Kumar, 1985 II LLJ 108 AP. In paragraph 8 of the judgment, referring to the Division Bench judgment of the Andhra Pradesh High Court in the matter of Khaja Khan Vs. Postmaster-General, 1975 I An. W.R. 64), it is observed thus:
"Regarding this impugned Rule 3(1)(iii) there is no direct authority of any Court. We may point out that the words "do nothing which is unbecoming of a Government servant" may be in relation to his duties of office as well as to his private life. This rule enjoins a Government servant at all times whether in office or outside to do nothing which is improper or inappropriate or unsuited to his position as a Government servant".
The Division Bench further observed:
"If the Government servant is asked to do nothing which is unbecoming of a Government servant, he is merely asked to keep within the bounds of administrative decency. Given common sense and a sense of decency, it will not be difficult to judge whether what conduct amounts to unbecoming conduct. What is unbecoming can always be ascertained, having regard to the entirety of conduct. We do not think the rule suffers from the vice of vagueness. Thus, it could form the subject- matter of the charge."Page 6 of 15 Downloaded on : Fri Oct 02 00:23:57 IST 2020 C/SCA/9000/2020 ORDER
18 It must, therefore, be scrutinised as to whether the act alleged is improper or inappropriate or unsuited to his position as a Government servant; and as to whether it amounts to unbecoming conduct, has to be ascertained having regard to the entirety of the conduct of a person. 19 Respondents contend that the act complained of would fall within exception to Article 19(1)(a) of the Constitution of India. The argument deserves to be rejected for the reason that demonstrably uploading of alleged offending post is not either a defamatory or in the nature of libel or slander nor it offends against decency or morality.
20 Turning to the instant matter, as has been recorded above, the offending post uploaded on the social media by the petitioner is too general in nature and is not directed against any individual or group much less representatives of the people in the Municipal Corporation. By any stretch of imagination, it cannot be construed that the post is directed against the representatives of the people in the House of local body i.e. the Municipal Corporation."
4.2 Mr. Vyas, learned advocate for the petitioner would further rely with particular stress on para 14 of the decision of the Apex Court in the case of Shreya Singhal vs. Union of India reported in (2015) 5 SCC 1 which recognises the right to free flow of opinion and rights. He would also rely on a decision of the Kerala High Court dated 15.12.2018 rendered in Writ Petition(C) No. 31703 of 2018 in the case of Dr. Prakash Pannian vs. The Central University of Kerala and Others. The case before the Kerala High Court was in which a University teacher had criticized and sympathised with a student who was arrested by the police and the Kerala High Court opined that the facebook post sympathising with a student who had undergone pain and trauma could not be termed as misconduct.
4.3 Mr. Vyas also relied on a decision of the Tripura High Court in the case of Lipika Pual vs. State of Tripura and Others rendered in Writ Petition (C) No. 1363 of 2019 wherein the Tripura High Court while Page 7 of 15 Downloaded on : Fri Oct 02 00:23:57 IST 2020 C/SCA/9000/2020 ORDER considering the chargesheet in context of a misconduct attributed to a government employee for taking part in a political rally at Agartala and who had approached the court challenging the chargesheet issued after the date of superannuation, held in the context of the argument of the post being put on facebook that if the post suggested canvassing it was not for or against any political parties and it was in general terms and that the petitioner was entitled to her own beliefs in context of the rules.
4.4 Relying on these decisions, Mr. Vyas would summarise his submissions that there should be paramount consideration of freedom of speech under Article 19(1)(a) of the Constitution of India and that the suspension order is wholly unjustified.
5. Mr. H.S. Munshaw, learned advocate for the respondent panchayat drew the attention of this court to the affidavit-in-reply filed on behalf of respondent no. 3. Relying on the conduct rules, he would submit that under Rule 9 of the Conduct Rules, criticism of the government on radio broadcast etc is prohibited especially when it is in context of any current or recent policy of the Central or State Government. Mr. Munshaw took the court through the conduct rules and the posts in question and submitted that what the DPEO had thought fit is to suspend the petitioner. The suspension is pending disciplinary proceedings that are contemplated and therefore suspension cannot be treated as punishment. He would also submit that it is open for the petitioner to prefer appeal before the Education Tribunal.
6. Mr. K.M. Antani, learned AGP appearing for the respondent State would invite the attention of this court to the definition of Article 19(1)(a) and read it out in context of clause (2) thereof and submit that there are always reasonable restrictions subject to which Article 19 is described. He would submit that the petition at the stage of challenging the Page 8 of 15 Downloaded on : Fri Oct 02 00:23:57 IST 2020 C/SCA/9000/2020 ORDER suspension is premature as the disciplinary proceedings are yet contemplated. He would invite the attention of the court to the Rules and submit that the order of suspension is not a penalty and the suspension is only an interim measure pending departmental proceedings. In context of the decisions relied upon by Mr. Radhesh Vyas, learned advocate for the petitioner Mr. Antani would submit that these decisions were in the context of disciplinary proceedings having concluded and penalty orders under challenge especially in the case of the Bombay High Court and also in the case of the Tripura High Court. As far as the decision rendered by the Kerala High Court is concerned, he submitted that the rule in the present context of facts was not an issue that was decided by the Kerala High Court.
7. Considering the submissions made by learned advocates for the respective parties, what needs to be appreciated is that the petitioner is a Primary Teacher working under the DPEO, Vadodara. In the hierarchical set up of the authorities, the umbrella institution is the Minister of Education, the Secretary of Education and the Director, Primary Education. The petitioner is a government servant, admittedly, bound by the conduct of the disciplinary rules which govern his terms of employment.
7.1 Reading of the suspension order indicates that on 17.07.2020 the petitioner through his mobile phone either posted on facebook a comment which have been reproduced hereinabove or ridiculed the Secretary of Education who was as a Special Officer assigned the duties of the pandemic. He also liked two posts through his colleagues branding the government as being mute, deaf and dumb. These are some posts which are apparently clear from the annexed posts to the affidavit-in-reply. The submission of Mr. Vyas, learned advocate for the petitioner that immediately the petitioner apologised for such posts is clearly an Page 9 of 15 Downloaded on : Fri Oct 02 00:23:57 IST 2020 C/SCA/9000/2020 ORDER afterthought.
8. Rule 9 of the Conduct Rules of the Panchayat which is in pari materia to the conduct rules vis-a-vis the State Government i.e. Gujarat Civil Services (Conduct) Rules, 1971 reads as under:
"9. Criticism of Government :- No Government servant shall in any radio broadcast or in any document published in his own name, or anonymously, pseudonymously, or in the name of any other person, or in any communication to the press, or in public utterance, make any statement of facts or opinion -
(i) which has the effect of an adverse criticism of any current or recent policy, or action of the Central Government, or of State Government :
Provided that in the case of any Government servant included any category of Government servants specified in sub-rule (3) or rule 1, nothing contained in this clause shall apply to bonafide expression of views by him as an office bearer of a trade union of such Government servants for the purpose of safeguarding the conditions of service of such Government servants or for securing an improvement thereof.
(ii) which is capable of embrassing the relations between the Central Government and the Government of any State or
(iii) which is capable of embrassing the relations between the Central Government and the Government of any foreign state :
Provided that nothing in this rule shall apply to any statement made or views expressed by a Government servant in his official capacity or in the due performance of the duties assigned to him."
8.1 Reading of Rule 9 of the Conduct rules indicates that no panchayat servant shall in any radio broadcast or in any document published in his own name, or anonymously or pseudonymously or in the name of any other person or in any communication to the press, or in public utterance make any statement of facts or opinion which has the Page 10 of 15 Downloaded on : Fri Oct 02 00:23:57 IST 2020 C/SCA/9000/2020 ORDER effect of criticism if any current or recent policy or action of the Central Government or of State Government.
10. The facebook posts have to be seen in context of the position of Rule 9 of the Conduct Rules. The petitioner who is a primary teacher had posted and/or liked posts on the community group on Facebook of other primary teachers who are the part of the education department. The Minister of Education appears to have made a statement in context of the demand of teachers in granting them grade pay of Rs.4200/-. The petitioner brands this statement as a "chinese statement". The Secretary of Education posted at Vadodara for official duties for taking care of the corona pandemic is criticized by the statement that he must be shunted out of Vadodara.
11. Reliance of Mr. Vyas, learned advocate for the petitioner on the decision in the case of Jayant Kharwarkar (supra) would not support the petitioner in view of the fact that in that case the post was not linked with the official functioning of the Corporation officers. It is not the case here. A teacher working under the direct stewardship of the Minister of Education and in succession, the Secretary of Education brands the Minister making a 'chinese statement'. Judicial notice can be taken on the context of the present situation in the country viz-a-viz the pandemic and the stand-off between the two countries and to brand the minister in such light by a teacher by posting a facebook post within the community of teachers certainly cannot be permitted as voicing his right of freedom of speech. The decision in the case of Shreya Singhal (supra) by the Apex Court is in the case of a mere discussion or advocacy of a particular cause however unfavourable it may be at heart.
12. It is at this juncture that Article 19(1)(a) and Article 19(2) of the Constitution kick in. Article 19 of the Constitution of India is reproduced Page 11 of 15 Downloaded on : Fri Oct 02 00:23:57 IST 2020 C/SCA/9000/2020 ORDER hereinbelow:
"19. Protection of certain rights regarding freedom of speech etc (1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business (2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the 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 (3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause (4) Nothing in sub clause (c) of the said clause shall affect Page 12 of 15 Downloaded on : Fri Oct 02 00:23:57 IST 2020 C/SCA/9000/2020 ORDER the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause (5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe (6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise"
13. Apparent it is from the statement on facebook that the petitioner cannot be deserving to plead infringement of his freedom of speech in context of his reasonable restriction that he was bound to follow in context of Rule 9 of the Conduct Rules. The decision of the Kerala High Court is in the context of a case especially when the student who was a victim of police atrocity was sympathised by a university teacher. The Page 13 of 15 Downloaded on : Fri Oct 02 00:23:57 IST 2020 C/SCA/9000/2020 ORDER Kerala High Court also expressly states that what would constitute a misconduct would depend upon the nature of criticism or comment. This is case on hand where the nature of criticism or comment made by the petitioner cannot be said to be a private opinion in a purely private domain but was directly attributed to the criticism of his superior in context of the discharge of their duties especially that of the Secretary and the Minister of Education which cannot be said to be within his 'freedom of expression' so perceived by the petitioner. The suspension of the petitioner therefore cannot be said to be completely unjustified.
14. Reading of the order of suspension and the contents thereof indicate that the suspension of the petitioner is on the basis of the invoking of Rule 5 of Discipline & Appeal Rules. Reading of the rules would indicate that the suspension so made is an interim measure pending departmental proceedings. I would want to sound a note of caution to the respondents. While it is open for the respondents to initiate departmental proceedings against the petitioner by issuing a chargesheet if they think it fit, the exercise of issuance of such chargesheet and conducting of departmental proceedings on not being satisfied with the response that the petitioner may give to the chargesheet, be completed within a period of six months from the date of the issuance of chargesheet. The respondents shall initiate such departmental proceedings by such a chargesheet if thought fit within two weeks from the date of receipt of the copy of this order. The domain to initiate departmental proceedings in accordance with the procedural rules of the State/Panchayat and to impose penalty is entirely within the domain of the employer/disciplinary authority. It is hoped that while doing so the respondents shall keep the theory of reasonableness in mind in inflicting such penalty. However, in the meantime if the petitioner makes an appropriate representation before the authorities for change of headquarters to a place nearby to Por, the respondents shall consider the said representation sympathetically and in Page 14 of 15 Downloaded on : Fri Oct 02 00:23:57 IST 2020 C/SCA/9000/2020 ORDER accordance with law. With the aforesaid observation, petition is dismissed.
(BIREN VAISHNAV, J) Divya / MEHUL B. TUVAR Page 15 of 15 Downloaded on : Fri Oct 02 00:23:57 IST 2020