Tripura High Court
The State Of Tripura vs Smt. Lipika Paul on 26 February, 2021
Equivalent citations: AIRONLINE 2021 TRI 468
Bench: S. Talapatra, S.G. Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
WA 20/2020
1.The State of Tripura
To be represented by the Principal Secretary, Department of
Fisheries, Government of Tripura, New Secretariat Building,
New Secretariat Complex, Kunjaban, P.S New Capital Complex,
Agartala, West Tripura, PIN 799010.
2.The Director,
Department of Fisheries, Government of Tripura, Gorkhabasti,
PN Complex, Agartala, West Tripura, PIN-799006.
3. The Commissioner,
Department of Inquiries, Government of Tripura, Gorkhabasti,
PN Complex, Agartala, West Tripura, PIN 799006.
-----Petitioner(s)
Versus
Smt. Lipika Paul,
D/O- Late Kumud Ranjan Paul, Resident of IGM Hospital, Lane
No. 6, Agartala, West Tripura, PIN 799001.
-----Respondent(s)
For Petitioner(s) : Mr. Siddhartha Sankar Dey, Adv. Gen. Mr. D Bhattacharya, GA Mr. Karnajit De, Addl. GA For Respondent(s) : Mr. P Roy Barman, Adv.
Mr. Samarjit Bhattacharjee, Adv.
Mr. Kawsik Nath, Adv.
Whether fit for reporting : YES
Date of hearing : 06.01.2021
Date of pronouncement : 26.02.2021
Page 2 of 28
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
JUDGMENT & ORDER
23/02/2021
By means of this intra court appeal, the appellants have questioned the legality of the judgment and order dated 09.01.2020 delivered in WP(C) 1363 of 2019 [2020 SCC Online Tri 17].
2. The sole-respondent filed the writ petition challenging the action of the respondents in placing her under suspension at the fag end of her service career and initiating departmental proceeding after the date of her superannuation. According to the petitioner, the actions were taken without any basis and only by way of colourable exercise of power. By the said judgment dated 09.01.2020 the learned single judge, having appreciated the submissions and the records produced before him, has observed after interpreting Rule 5 of the Tripura Civil Services (Conduct) Rules, 1988, that the charge- sheet issued against the petitioner under memorandum dated 15.06.2019 is liable to be set aside. Consequentially, the order of suspension dated 25.04.2018 which was issued pending Page 3 of 28 initiation of the departmental inquiry was also interfered with. On such interference, the respondents were directed to release the post retiral benefits which has not been paid to the petitioner, within a period of two months from the date of the judgment.
3. The brief fact which is material for determining the appeal may be encapsulated in the following manner. By the judgment dated 25.04.2018 (Annexure-1 to the writ petition) it has been stated that the petitioner [the respondent herein] had been alleged of violating Rule 5 of the TCS (Conduct) Rules, 1988 "for directly taken part in a political rally organized/campaigned by the CPI(M) party at Astabal Maidan, Agartala on 31.12.2017 at 04.05 p.m. as reported by Sri Abhijit Ghosh, Editor of Janata Mashal".
4. The said editor had lodged a complaint against the petitioner, who was at the relevant point of time, serving as the UDC with some „evidence‟, according to the Director of Fisheries. Further, according to the Director of Fisheries, who issued the order dated 25.04.2018 an inquiry was carried out by the Joint Director of Fisheries. The Joint Director of Fisheries had submitted the report to the Director of Fisheries on Page 4 of 28 24.04.2018 vide letter No. F.10(45)FISH(CON)/2018-19/128 dated 24.04.2018 observing on the „conduct‟ of the petitioner. On the basis of the said report, as submitted by the Joint Director, the petitioner was placed under suspension with immediate effect. Thereafter, the petitioner raised her protest against the said order of suspension stating that she was not given any opportunity to have her say during the said inquiry, as referred. Her representation dated 07.05.2018 was not otherwise considered. Later on, on 21.08.2018 (Annexure-4 to the writ petition) the petitioner had urged to revoke the suspension order as there had been no review of the said suspension order in terms of rule 10(6)(c) of CCS(C&A) Rules, 1965. Such review is mandatory after expiry of 90 days by the review committee.
5. Thereafter, by the memorandum dated 04.10.2018 (Anenxure-5 to the writ petition) the statement of article of charge had been proposed, which reads as under:
"Article-I That the said Smt. Lipika Paul, UDC (now retired from Govt. Service) while working as UDC at Directorate of Fisheries in the Department of Fisheries Govt. of Tripura Agartala has canvassed against a political party by making defamatory & indecent comments against political leader who were Page 5 of 28 contesting election from a recognized political party in the Assembly election 2018. She not only canvassed but also participated in political rally dated 31.12.2017 at 4.00 P.M. at Vivakananda Maidan, Agartala. The act of Smt. Lipika Paul, UDC now retired from government Service is in violation of Rule 5(4) of TCS (conduct) Rules, 1988 read with GA(AR) Department vide Memorandum No. f.3(1)-GA(AR)/20108 dated 16.02.2018 as applicable to the State Government employees of Tripura."
6. The said memorandum was received by the petitioner on 05.10.2018. In the statement of imputation of misconduct her post in the facebook has been extracted. The said post may be segmented into four parts, which in short are:
(i) There is no space in own place, formidable in the land here (at 9.30 p.m. on 29.12.2017).
(ii) We are with people at stable ground (at 4.05 p.m. on 31.12.2017.
(iii) Listen Sudip, we will not come back in „18 and that is 100% confirmed but will not tell Delhi. If told, the money will not flow from there. If money flows we will divide the same in three shares (on 04.01.2018 at 4.20 p.m.)
(iv) By changing clothes you will be naked one day there will be no cloth to wear (on 08.01.2018 at 10.47 p.m.) and that was followed by the comment "let us slap" (on 04.02.2018 at 5.52 p.m.) [free translation].
7. That apart, it has been alleged that the petitioner had attended the meeting organised by the recognized political party on 31.10.2017 at 4.00 p.m. at Vivekananda Maidan, Page 6 of 28 Agartala. In addition, she was alleged of canvassing against the political party by the said facebook post. The allegations were denied.
8. By the memorandum dated 16.02.2018 (Annexure-6 to the writ petition) the General Administration (AR) Department had reiterated the provisions under Rule 5 of TCS (Conduct) Rules, 1988 which reads as follows:
"5. Taking part in politics and elections. -
(1) No Government servant shall be a member of, or be otherwise associated with, any political party or any organisation which takes part in politics nor shall he take part in, subscribe in aid of, or such in any other manner, any political movement or activity.
(2) It shall be the duty of every Government employee to endeavour to prevent any member of his family from taking part in, subscribing in aid of, or assisting in any other manner any movement or activity which is, or tends directly or indirectly to be subversive of the Government as by law established and where a Government employee is unable to prevent a member of his family from taking part in, subscribing in aid of, or assisting in any other manner any movement or activity, he shall make a report to that effect to the Government.
(3) If any question arises whether a party is a political party or whether any organisation takes part in politics or whether any movement or activity falls within the scope of sub-rule (2), the decision of the Government thereon shall be final.
(4) No Government servant shall canvass or otherwise interfere with, or use influence in connection with or take part in, an election to any legislature or local authority;Page 7 of 28
Provided that-
(i) a Government employee qualified to vote at such election may exercise his right to vote but where he does so, he shall give no indication of the manner in which he proposes to vote or has voted;
(ii) a Government employee shall not be deemed to have contravened the provisions of this sub-rule by reason only that he assists in the conduct of an election in the due performance of a duty imposed on him by or under any law for the time being in force."
9. Since the petitioner denied these allegations as narrated in the statement of imputation by filing a written statement of defence on 10.10.2018 (Annexure-7 to the writ petition), the inquiry authority was appointed by the memorandum dated 13.10.2019.
10. By filing another representation on 01.05.2019, the petitioner had urged the Commissioner for Departmental Authorities to drop the departmental inquiry inasmuch as it will be persecuting without any tenable basis. By the memorandum dated 11.05.2019, the departmental proceeding as initiated by the memorandum dated 04.10.2018 was withdrawn (Annexure- 12 to the writ petition) for procedural defects. Thereafter, by the memorandum dated 05.06.2019, the departmental proceeding was again initiated under Rule 9(2)(b) of CCS Page 8 of 28 (Pension) Rules, 1972 and a fresh inquiry on the same charge was initiated. The imputations are the replica of the previous imputations of charge. The petitioner again denied the charges of imputation by filing the written statement on 17.06.2019. The provisional pension was released by the memorandum dated 11.09.2019 but no formal order on the departmental proceeding was passed. Finally, by the memorandum dated 12.11.2019 one inquiry authority had been appointed.
11. The said proceeding has been challenged by filing the writ petition being WP(C)1363 of 2019 on the grounds that the allegations are malicious and fabricated, inasmuch as "the petitioner had neither canvassed against any political party nor in support of any political party. The petitioner did not participate in any political rally."
12. The respondents, by filing the reply have asserted that the petitioner had attended a meeting of a political party without obtaining any permission from the competent authority in the stable ground on 13.12.2017 as gathered from the newspaper report published in Janata Mashal. The said participation was in violation of rule 5 of TCS (Conduct) Rules, 1988. It has been further asserted that after the charge sheet is Page 9 of 28 filed, there is no necessity of review of suspension order under Rule 10(7) of the CCS (CCA) Rules, 1965. However, with the retirement of the petitioner during suspension the revocation of the suspension order was an empty formality.
13. The learned single judge by the judgment dated 09.01.2020 has observed, inter alia, that it appears that the Director of Fisheries has placed reliance on rule 5 of the said conduct rules for issuance of the charge sheet. Eventually, he withdrew the charge sheet under memorandum dated 11.05.2019 and issued a fresh memorandum of charge dated 19.06.2019 under the provisions of rule 9(2)(b) of the CCS (Pension) Rules, 1972 on the same set of imputation of misconduct.
14. Learned single judge has observed in the said judgment as follows:
"Even if all the allegations made in the charge-sheet are accepted as true, no misconduct is made out. Subjecting the petitioner to protracted departmental inquiry after retirement would cause undue hardship and prejudice. On account of pendency of departmental proceedings her post retiral benefits are not finalized. The petitioner had put in more than 38 years of service without blemish. She was placed under suspension at the fag end of her service career."Page 10 of 28
15. In response to the plea raised by the respondents that the writ petition is premature inasmuch as the petitioner, the respondent herein, would have applied her right to defend in the departmental proceeding, initiated by the disciplinary authority. It has been observed further that that would have cleared the question whether she had conducted misconduct or not.
16. According to the respondents, the petitioner had participated in a political rally and has also put a facebook post criticising certain candidate of the rival political party. This was clearly in breach of rule 5 of the conduct rules. As a government servant she could not have taken part in "political activities". The learned single judge in the backdrop of the said stand of the government has observed that "ordinarily the court would not interfere at a stage where the department has only issued a charge-sheet and the departmental inquiry is yet to be completed. It is essentially for the employer to inquire into any of the allegations of misconduct against the Government servant by constituting a departmental inquiry and conducting the inquiry in consonance with the principles of natural justice. The role of the High Court even before the departmental inquiry Page 11 of 28 is completed would necessarily be limited. However, there must come cases, howsoever and few and far between, which would require closer scrutiny at the hands of the Court and to discern at the very threshold whether the allegations contained in the charge-sheet constitute any misconduct whatsoever. If the answer to such a question is in the negative, it would be futile, in fact incorrect to subject the Government servant to a full- fledged departmental inquiry."
17. Having that in mind, the allegations were further scrutinized and the learned single judge has observed that the respondents have alleged that the petitioner, the respondent herein, had violated sub-rule (4) of Rule 5 of the Conduct Rules. That rule provides that no government servant shall be a member of, or be otherwise associated with, any political party or any organisation which takes part in politics nor shall he take part in, subscribe in aid of, or such in any other manner, any political movement or activity. As per sub-rule (1) of Rule 5, any active political association of any government servant is barred. Sub-rule (4) of Rule 5 is more specific and that prevents the government servant from canvassing or otherwise interfering with, or using his influence in connection with or Page 12 of 28 taking part in an election to any legislative or local authority. Proviso to Rule 5, according to the learned single judge, has no relevance in the present context.
18. The statement of imputation does not give any indication of the activity of the petitioner, of being, in any manner, violative of sub-rule 4 of Rule 5 of the conduct rules. The article of charge alleges that she had „participated‟ in a political rally whereas the statement of imputation alleges that she had „participated and attended‟ in a political rally. There is a vital difference between attending a rally and participating in a rally. During election time it is well known, political parties and their leaders as well as nominated candidates take out rallies and address public gatherings. Even the person who is present in the audience during such addresses cannot be stated to have participated in the rally. The presence of a person does not either establish his or her political affiliation. A student of politics, a student of law, a reporter or just a curious bystander, all are likely to be present in a political gathering. Even an opponent or a critic of a political party may also attend the gathering. Her mere presence at a gathering, therefore, without any further allegation would not amount to her participation in Page 13 of 28 such political gathering. The first limb of allegation against the petitioner of having breached the sub-rule (4) of Rule 5 of the Conduct Rules, according to the learned single judge, must fail.
19. Having taken note of the said facebook post, the learned single judge has observed as follows:
"...... Nothing contained in the said post suggests canvassing for or against any political party. It only expresses certain beliefs of the petitioner in general terms. As a government servant the petitioner is not devoid of her right of free speech, a fundamental right which can be curtailed only by a valid law. She was entitled to hold her own beliefs and express them in the manner she desired of course subject to not crossing the borders laid down in sub-rule (4) of Rule 5 of the Conduct Rules."
20. It has been succinctly held thereafter, that the petitioner‟s facebook post had no element of canvassing for or against any political party. Thus, it cannot be held as a breach of Rule 5(4) of the Conduct Rules. As corollary, the memorandum dated 15.06.2019 has been quashed and consequentially, the relief as noted above has been provided, by allowing the writ petition.
21. The state respondents have filed this appeal on the grounds inter alia:
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(a) The learned single judge has given "mis-
interpretation" of the provisions of TCS (Conduct) Rules, 1988.
(b) Learned single judge has failed to appreciate that the respondent herein had violated rule 5 of the TCS (Conduct) Rules, 1988 by taking part "in a political rally directly"; and
(c) The observation of the learned single judge that the petitioner did not commit misconduct is wholly perverse, wrong and incorrect and cannot be sustained in law.
22. Mr. S. S. Dey, learned Advocate General assisted by Mr. D Bhattacharjee, learned GA having appeared for the appellants has submitted that if the judgment dated 09.01.2020 is allowed to sustain it will give indulgence to the government employees to directly take part in political activities under the garb of free speech or freedom of speech. Thus, the said judgment be interfered with.
23. Mr. Dey, learned Advocate General has further submitted that a close reading of the statement of imputation of misconduct would bring to the fore that the observation of the learned single judge that the respondent did not commit any misconduct by way of violating the provisions of Rule 5 of the TCS (Conduct) Rules, 1988 is not the natural culmination of the reading. Even, the distinction made between „attendance‟ and Page 15 of 28 „participation‟ is so fragile in nature it would only obfuscate the border line with the direct participation of the political activities in contravention of Rule 5 of the TCS (Conduct) Rules, 1988. Hence, this court should interfere with the said judgment and allow the departmental proceeding to continue.
24. Learned Advocate General has fairly submitted that the government employee would abide by the rules and conditions of service and he cannot try to avoid the restrictions imposed by the rules and conditions of service by saying that they offend the Constitution of India which recognises fundamental rights in favour of the citizens of this country. Such restriction as imposed by the rules is far from being infringement of fundamental right or fundamental obligation arising out of an implied contract entered into by the petitioner. The petitioner by his conduct, according to the learned advocate general, would be deemed to have waived those fundamental rights. For this purpose reference has been made to P.K. Krishnan Kutty Vs. State of Travencore-Cochi reported in AIR 1952 Travencore-Cochin 287.
25. Mr. Samarjit Bhattacharjee, learned counsel appearing for the respondent has submitted that attending a Page 16 of 28 political rally cannot, by any stretch of etymological analysis, mean actively participating in the political activities. If that narrow interpretation is given that would frustrate the very democratic set up. There is a huge distance between the words „attending‟ and „participating‟. The word „participating‟ is to be involved directly whereas „attending‟ may not be of that degree. The issue that has been decided has been so decided in accordance with the Conduct Rules read with Article 19 of the Constitution of India in a balanced manner so that the said provision, Rule 5 of the TCS (Conduct) Rules cannot be used for witch-hunt. As such, the judgment under challenge warrants no interference at all.
26. For appreciating the rival contentions as projected by the counsel, it would be appropriate to lay down the outline of legal framework in the subject matter.
27. The High Court of Kerala in Gopinathan Vs State of Kerala reported in AIR 1964 Ker 227 had occasion to observe that by the mere fact that a person has entered Government service does not mean that he is denied the fundamental rights guaranteed to every citizen. On the other hand, the position has been made very clear by the apex court that all Government Page 17 of 28 servants except those coming under Article 33, in common with other persons and other citizens of the country, cannot be excluded from the protection of the rights guaranteed by Part III of the Constitution. The position is further made clear that reasonable restrictions within the permissible limits can be imposed, but it must be "law".
28. In Kameshwar Prasad v. State of Bihar, reported in AIR 1962 SC 1166 the Bihar Government Servants‟ Conduct rules, 1956 which prohibited a government servant from participating in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service, came up for consideration. Before the Constitution Bench of the apex court, the earlier judgment in Balakotaiah's case was cited to substantiate the contention of the government that the rule was not in any manner ultra vires the Constitution of India. It was also argued before the Constitution Bench that the Government servants, as a class, cannot be excluded from the protection of the rights guaranteed by several Articles in Part III of the Constitution of India. Having considered the said contention and after referring to Article 33 of the Constitution, the apex court has held as follows: Page 18 of 28
"12. .... The Article having thus selected the Services members of which might be deprived of the benefit of the fundamental rights guaranteed to other persons and citizens and also having prescribed the limits within which such restrictions or abrogation might take place, we consider that other classes of servants of Government in common with other persons and other citizens of the country cannot be excluded from the protection of the rights guaranteed by Part III by reason merely of their being Government servants and the nature and incidents of the duties which they have to discharge in that capacity might necessarily involve restrictions of certain freedoms as we have pointed out in relation to Article 19 (1)(e) and (g). ......"
29. Thus, it is apparent that certain restriction on the freedom guaranteed under Article 19 of the Constitution could be imposed on the government servants going by the nature and intends of the duties which they have to discharge in their capacity as government servants. But a close reading of the said judgment would clearly show that the government servants cannot be pushed to a separate class so as to deprive them of the fundamental rights guaranteed under Article 19 of the Constitution of India as it has been done in the case of the members of the Armed Forces and other services enumerated in Article 33 of the Constitution of India. However, it is reiterated that there can be reasonable restriction on the said right. Page 19 of 28
30. In Ravindra Kumar Dutta vs. Union of India, reported in (1986) 3 SCC 587 where the question of vires of Rule 5 of the CCS (Conduct) Rules, 1964 was raised to the effect that whether the effect of that rule was to impose a total ban on the government servants from participating in any political activities, came up for consideration. The question that fell for consideration in Ravindra Kumar Dutta (supra) was referred to a Constitution Bench considering its gravity as, such restriction may truncate the fundamental right of the employees. The question that was framed to be considered by the Constitution Bench was as follows:
"The question raised is of great importance and the acceptance of the contention may lead to complete revision of the accepted Civil Service Philosophy. We think it is desirable that these matters should be heard by a Constitution Bench. The Registry will seek appropriate directions from the Hon'ble Chief Justice"
But the reference was scuttled without any response and observing that the subject matter has become stale.
31. In Kameshwar Prasad (supra) and in O.K. Ghosh & Anr. versus Ex-Joseph reported in AIR 1963 SC 812, the apex court held that the right of a government servant to take part in a peaceful demonstration, but not in strike in the context Page 20 of 28 of Rule 4(1) of the Bihar Government Servant‟s conduct Rules, cannot have restriction, as applied in the event of strike. But taking active part in politics as specified in Rule 14 like taking part in subscribing aid or assisting in political movement in India can be viewed as objectionable conduct on the part of the government servant in as much as that would turn out to be harmful to good discipline and efficiency of service and should not be confused with the several freedoms mentioned in Article 19 of the Constitution.
32. In a subsequent decision in G.M.N.V. Prasad Rao Versus Managing Director, A.P.S.R.T.C. reported in 1989 (5) SLR 558, it has been observed that Conduct Regulation of Andhra Pradesh State Road Transport Corporation (APSRTC) Employees which imposes ban on the employees from participating in the political activities came up for consideration. It has been observed by a single judge of the Andhra Pradesh High Court [Justice K Ramaswamy] as under:
"5. ...... Therefore, prohibition is a reasonable restriction and a valid classification of the entire class of the employees of the Corporation. Therefore, it is not violative of either Article 14 of the Constitution or ultra vires of the power of the Corporation. It is not necessary that the Act itself should provide such a prohibition. Since the power has been conferred expressly to prescribe Page 21 of 28 conditions of the service of the employees under Section 45 of the Act, Regulation 23 of the Conduct Regulations being part of the Statutory Rule is perfectly within the power of the Corporation and is valid. Accordingly, I hold that Regulation 23 (1) of the Conduct Regulations is not ultra vires of the power of the Corporation and it does not offend the right to equality or Political Justice enshrined in the Preamble to the Constitution."
33. A deep reading of the judgments as noted above goes to show that the prohibition imposed upon the government/corporation employees from participating in the political activities itself is only a reasonable restriction in the interest of maintaining discipline among the employees and for proper discharge of their duties and the same cannot be stated to be unreasonable so as to hold the same ultra vires the Constitution. It neither offends Article 14 nor Article 19 of the Constitution. As held by the apex court in P. Balakotaiah's case it is for the employee of the respondent Corporation to decide whether to get out of the restriction imposed on his fundamental rights under the service regulations in order to enjoy absolute freedom for participating in political activities by going out of service or to subject himself to the reasonable restriction imposed on his fundamental rights and to continue in the government service. Before entering into the service since there is no restriction on his fundamental rights, he could have Page 22 of 28 very actively involved himself in politics. However, having chosen to become a servant of the Government/corporation, he cannot continue such political activities as it would not be in the interest of the discipline or proper discharge or their duties attached to the service. These restrictions are, thus, absolutely essential for proper and efficient administration of the corporation. [See again, G.M.N.V. Prasad Rao (supra)] Therefore, such reasonable restriction cannot per se be held to be ultra vires the Constitution.
34. In Wieman Vs. Updegraff reported in 344 US 183, Black, J. said on one of the notorious loyalty oath cases, and his speech is as relevant to the context, worth quoting:
"History indicates that individual liberty is intermittently subjected to extraordinary perils. Even countries dedicated to government by the people are not free from such cyclical dangers. The first years of our Republic marked such a period. Enforcement of the Alien and Sedition Laws by zealous patriots who feared ideas made it highly dangerous for people to think, speak, or write critically about government, its agents, or its policies, either foreign or domestic. Our constitutional liberties survived the ordeal of this regrettable period because there were influential men and powerful organized groups bold enough to champion the undiluted right of individuals to publish and argue for their beliefs however unorthodox or loathsome. Today however, few individuals and organizations of power and influence argue that unpopular advocacy has this same wholly unqualified immunity from governmental interference. For this and other Page 23 of 28 reasons the present period of fear seems more ominously dangerous to speech and press than was that of the Alien and Sedition Laws. Suppressive laws and practices are the fashion. The Oklahoma oath statute is but one manifestation of a national network of laws aimed at coercing and controlling the minds of men. Test oaths are notorious tools of tyranny. When used to shackle the mind they are, or at least they should be, unspeakably odious to a free people. Test oaths are made still more dangerous when combined with bills of attainder which like this Oklahoma statute impose pains and penalties for past lawful associations and utterances.
Governments need and have ample power to punish treasonable acts. But it does not follow that they must have further power to punish through and speech as distinguished from acts. Our own free society should never forget that laws which stigmatize and penalize though and speech of the unorthodox have a way of reaching, ensnaring and silencing many more people than at first intended. We must have freedom of speech for all or we will in the long run have it for none but the cringing and the craven. And I cannot too often repeat my belief that the right to speak on matters of public concern might be wholly lost.
It seems self-evident that all speech criticizing government rulers and challenging current beliefs may be dangerous to the status quo. With full knowledge of this danger the Framers rested our First Amendment on the premise that the slightest suppression of though, speech, press, or public assembly is still more dangerous. This means that individuals are guaranteed an undiluted and unequivocal right to express themselves on questions of current public interest. It means that Americans discuss such questions as of right and not on sufferance of legislatures, courts or any other governmental agencies. It means that courts are without power to appraise and penalize utterances upon their notion that these utterances are dangerous. In my view this uncompromising interpretation of the Fill of Rights is the one that must prevail if its freedoms are to be saved. Tyrannical totalitarian governments cannot safely allow their people to speak with complete freedom.Page 24 of 28
I believe with the Framers that our free Government can."
Such unbridled right has not been guaranteed by our Constitution. For this purpose, reference to Article 19(2) of the Constitution be made.
35. In the observation made by Black, J. this restriction as made in the conduct rules cannot be sanctioned in view of the development of law in this field. However, there is consensus that an expression of freedom can be regulated but cannot be fully restricted.
36. Learned single judge has correctly noted the allegation, as brought against the respondent, that the petitioner being a government employee [UDC at Directorate of Fisheries] "has canvassed against a political party by making defamatory and indecent comment against political leader who were contesting the election from a recognised political party"
and that the respondent not only had canvassed but also participated in a political rally dated 31.12.2017 at 4.05 p.m. at Vivekananda Maidan, Agartala. The said conduct of the respondent, according to the memorandum dated 04.10.2018 (Annexure-5 to the writ petition) is violative of the provisions of Page 25 of 28 Rule 5(4) of the TCS (Conduct) Rules, 1988. No material referred or supplied with the memorandum dated 04.10.2018 to form a valid charge against the respondent for having canvassed against a political party or by making a defamatory and indecent comment against the political leader who was contesting election from a recognised political party. Even there is no material that the petitioner had „participated‟ in the political rally on 31.12.2017 at 4.00 p.m.
37. Even in the reply filed by the respondents, it has been stated as follows:
"......the petitioner has joined in the service on 10.12.1987 but placed under suspension on 25.04.2019 & attended in a political party meeting without obtaining of any permission from the competent authority in the Astabal Maidan on 31.12.2017 as reported by Sri Abhijit Ghosh, Editor of "Janata Mashal".
38. The allegation, as surfaced, therefore is of attendance and not of participation. Learned single judge has made a distinction between the word „attendance‟ and „participation‟ very lucidly. „Attendance‟ may be par chance or without intention of actively participating in the rally by supporting the organiser. Such attendance cannot be brought within the umbrage of participation in a rally organised by a political party. Such is the case of the petitioner. We are in Page 26 of 28 agreement with the distinction made by the learned single judge.
39. So far the facebook post is concerned, having read the vernacular version, we are of the view that it does not name any political party or political figure as such. There may be some insinuation to infer that the intention was to malign any political party or to garner support for any other opponent political party. But we are disturbed by the language as used in the said facebook post if the same was really uploaded by the respondent. It is required to be noted that the respondent had denied the making of such post in the facebook but for our consideration we would deem that the said post has been uploaded by the petitioner. Even then, that cannot be brought under „participation‟ in the political activities. Thus, the allegation as made for violation of Rule 5(4) of the TCS (Conduct) Rules, 1988 shall fall apart.
40. Thus, we are unable to uphold the view of the State so far the present case is concerned. That apart, we are unable to uphold the concern of the State, as expressed by way of grounds of objection.
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41. There is no challenge against the restrictive rules by the respondent. The respondent has ventured to make out a case that she cannot be imputated for contravening the provision of Rule 5(4) of the TCS (Conduct) Rules, 1988. Such rule is obviously for maintenance of the public order. We will not direct our consideration whether the restriction mentioned in the Rules is reasonable or not.
42. We affirm the view taken by the learned single judge on an analysis of the materials based on which the article of charge has been proposed. We are in agreement with the view that those materials do not provide any ingredient of violating Rule 5(4) of the TCS (Conduct) Rules, 1988.
43. Before parting with the records, it may be observed that the said observation made by the learned single judge does not in any way liberate the government employees from the restriction imposed by Rule 5 of the said Conduct Rules. They shall always be governed by the said restriction for discipline and efficiency of the administration but at the same time these restrictions cannot be used in such a manner that that can be treated as a complete ban on freedom of expression or association. There cannot be any cavil on the freedom of Page 28 of 28 thoughts but its expression has been regulated by the said rule. As the condition of service has been accepted by the government employees, they cannot de-acknowledge the obligation.
44. Having observed thus, this appeal stands dismissed.
However, in the circumstances of the case, there shall be no order as to costs.
Pending application(s), if any, also stand disposed of.
JUDGE JUDGE lodh