Karnataka High Court
The Chief General Manager And Ors. vs K. Gururajan on 22 September, 2003
Equivalent citations: ILR2004KAR1002, 2004 LAB. I. C. 3051, 2004 AIR - KANT. H. C. R. 826, (2004) 4 SERVLR 497, (2004) 3 LAB LN 1173, (2004) 2 KCCR 859
Author: R.V. Raveendran
Bench: R.V. Raveendran
JUDGMENT
R.V. Raveendran, J
1. Respondent was working as Assistant Director (R&E) in the office of the first petitioner herein-Chief General Manager (Karnataka Telecom Circle), during 2000-2001. First petitioner issued an Articles of Charge dated 16-4-2001 to the respondent charging him as follows:
Sri K Gururajan while functioning as Assistant Direct (R & E) o/o Chief General Manager, Telecom, Karnataka Circle, Bangalore has illegally participated in the "Hunger Strike" on 30-10-2000 in front of the Office of the Chief General Manager Telecom, Karnataka Circle, Bangalore in violation of Rule 7(ii) of the CCS (Conduct) Rules, 1964.
By the above act, Sri K Gururajan while functioning as Assistant Director (R&E) O/o Chief General Manager Telecom, Karnataka Circle, Bangalore has exhibited lack of devotion to duty and acted in a manner unbecoming of a Government servant contravening Rule 3(1) (ii) and 3(1) (iii) of CCS (Conduct) Rules, 1964"
2. Respondent filed objections to the charge memo on 26-4- 2001 denying that he committed any misconduct, but admitted having participated in the hunger strike. He submitted that he applied for 2 days casual leave for 30th & 31st October, 2000 on personal grounds; that prior permission was obtained to avail casual leave from the competent authority; that subsequently it was converted to one day's casual leave for 30-10-2000; and that on that he participated in a peaceful non-slogan shouting hunger strike. He further contended that his participation in me hunger strike after availing duly sanctioned Casual Leave was not illegal. He submitted that 'admitting Facts' is different from 'admitting guilt' and his action was not in violation of Rule 7(ii) of CCS (Conduct) Rules, 1964. The respondent also requested that an enquiry be held and his casual leave records for the year 2000 and the correspondences in regard to the hunger strike by the Telecom Employees Association on 30-10-2000 be made available to defend himself in such enquiry.
3. The Disciplinary Authority (first petitioner) did not consider it necessary to conduct an enquiry into the charge, as the respondent admitted participation in the hunger strike. Taking note of the fact that respondent had availed casual leave on 30-10-2000 and participated in the strike and the past good record of service, the Disciplinary Authority passed an order dated 23-5-2001 and imposed the punishment of withholding of next increment for a period of three years from the date on which it becomes due with a condition that during that period, respondent will not earn any increment and on completion of the penalty period, the order will not have effect of postponing future increments.
4. Feeling aggrieved, respondent filed an appeal dated 11-6-2001 before the third petitioner. The third respondent, by order dated 25-10-2001 allowed the appeal in part. He held that though participation in hunger strike on 30-10-2000 was admitted, the punishment imposed was excessive and harsh. He therefore reduced the penalty imposed on the respondent to censure.
5. Feeling aggrieved, respondent approached the Central Administrative Tribunal, Bangalore Bench in O.A. No. 733/2002. The Tribunal, by order dated 14-7-2003 held that the respondent was not guilty of any misconduct and allowed the application and set aside the order of punishment. As a consequence, the Tribunal directed the petitioners herein to consider the respondent for promotion to the next higher grade with effect from the date it became due, by ignoring the order of punishment.
6. The said order of the Tribunal is challenged by the Department in this Writ Petition. Petitioners submit that respondent admitted participation in the hunger strike; that amounted to violation of Rule 7(ii) of the conduct rules; and in view of the admitted misconduct, respondent cannot escape the minimum punishment. It is contended that the Tribunal committed a serious error in quashing the order of punishment
7. Rule 3 of the Central Civil Services (Conduct) Rules, 1964 requires every Government servant at all times to (i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) do nothing which is unbecoming of a government servant. Rules 7 of the said conduct Rules deals with Demonstration and Strikes and provides that no Government servant shall -
(i) engage himself or participate in any demonstration which is prejudicial to 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 which involves contempt of Court, defamation or incitement to an offence, or
(ii) resort to or in any way abet any forum of strike or coercion or physical duress in connection with any matter pertaining to his service or the service of any other Government servant."
The term "strike" is not defined in the Conduct Rules. But by Office Memorandum No. 25/23/66-Ests (A) dated 9-12-1966, it has been defined as meaning ' refusal to work or stoppage or slowing down of work by a group of employees acting in combination and includes--
(i) mass absention from work without permission (which is wrongly described as "mass casual leave");
(ii) refusal to work overtime where such overtime work is necessary in public interest;
(iii) resort to practices or conduct which is likely to result in or results in the cessation or substantial retardation of work in any organization. Such practices would include, what are called 'go- slow', 'sit-down', 'pen-down', 'stay-in', 'token', 'sympathetic' or any other similar strike; as also absence from work for participation in a Bandh or any similar movement."
The circular (No. G.I. Ministry of W & HVA No. 366) dated 10-6-1969 prohibits holding of meeting/demonstrations by any Government servant without permission, within his office premises and warns that any one violating the said instructions will be liable to disciplinary action.
8. The concept of 'strike' is cessation of work, or refusal to work fully or partly, in any manner, when the employee is duty bound to work. It follows therefore that a person who is on sanctioned leave, cannot by any stretch of imagination be said to participate in a 'strike'; as he neither refuses to work nor stops or slows down his work.
9. It is pointed out that what is prohibited is not only 'strike', but any form of protest and participation in certain specified activities. If an employee is not guilty of participating in a 'strike' in the accepted sense, then it is for the employer to specifically allege and establish that the employee did something which is prohibited or did not do something which he was required to do, and thereby committed a misconduct. Let us now see whether what is alleged against the respondent is capable of being construed as a misconduct.
10. The respondent has not participated in any demonstration which is prejudicial to the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, Public Order, decency or morality or which involves Contempt of Court, defamation or incitement to an offence. Therefore, he has not violated Rule 7(i) of the Conduct Rules. In fact that is not the charge.
11. The Respondent is charged by alleging that he committed a misconduct by participating in a hunger strike when he was on sanctioned leave and that violates Rules 7(ii) of the Conduct Rules. But, the Respondent did not resort to or abet any form of strike (as defined in the OM dated 9-12-1966) or coercion on physical duress. Nor did he participate in any meeting or demonstration or other disruptive activity within his office premises. In this case, what has been alleged and admitted is participation of the respondent in a peaceful hunger strike held outside the office premises on a day (30-10-2000) when he was on leave. Participation by an employee in a peaceful hunger strike held outside office premises, on a day when the employee was on sanctioned casual leave does not fall under Rule 7 of CCS (Conduct) Rules.
12. Petitioners contend that participation in a hunger strike, is by itself a misconduct warranting disciplinary action. Reliance is also placed on the decision in T.K. RANGARAJAN v. GOVERNMENT OF TAMIL NADU wherein the Supreme Court, observed that a Government servant does not have any fundamental or statutory or moral right to go on strike. The Supreme Court also held that Rule 22 of the Tamil Nadu Government Servants Conduct Rules, 1973 prohibited strikes. The said decision is of no assistance to petitioners. Rule 22 of Tamilnadu Rules provides that no Government Servant shall engage himself in strike or in incitements thereto or in similar activities. The explanation to the said Rule provides that for the purpose of Rule 22, the term 'similar activities' shall be deemed to include "absence from work or neglect of duties without permission and with the object of compelling something to be done by his superior officers or the government or any demonstrative fast usually called 'hunger strike' for similar purposes". The wording of Rule 7 of CCS (Conduct) Rules are different from the wording of Rule 7 of Tamilnadu (conduct) Rules. The participation in a 'hunger Strike' is itself a prohibited activity under the Tamilnadu Conduct Rules. On the other hand Rule 7 of CCS (Conduct) Rules read with Official Memorandum dated 9-12-1966 does not prohibit participation in a hunger strike on a day when the employee is on sanctioned leave.
13. The petitioners next relied on the decision of the Supreme Court in BANK OF INDIA v. T.S. KELAWALA wherein the Supreme Court held that participation in an illegal strike will invite disciplinary proceedings, as it is an act of misconduct. But, the question is whether respondent who was having the benefit of a sanctioned leave on 30-10-2000 can be said to have participated in a 'strike', let alone an illegal strike. The answer, as we have already seen, is in the negative. The fact that the respondent was not on duty but on sanctioned casual leave on 30-10-2000 when he participated in a peaceful hunger strike held outside the office premises makes all the difference in so far as Rule 7(ii) of the CCS (Conduct) Rules is concerned.
14. We therefore find no reason to interfere with the order of the Tribunal. Hence this petition is dismissed.