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5. That you in your explanation given to the Municipal Commissioner dtd. 30-5-1994 in respect of a statement published in the newspaper "Aaj Dinank' dtd. 23-5-1994 to the effect that Dawood had given Rs. 5 crores to the Chief Minister for the purpose of construction of unauthorised structures. You stated that some persons on behalf of Dawood Ibrahim had approached the then Chief Minister Shri Sudhakarrao Naik through some M.L.As. and M.Ps. with an offer to pay some crores of rupees to stop the demolition action undertaken by you, but the then Chief Minister refused to oblige. This explanation of yours appears to be a blatant lie in view of the article appearing in "Nav-Shakti" dtd. 28-5-1994 written by Shri Ashok Padbidri wherein Shri Ashok Padbidri has reported that the said statement was made by you in his presence and recorded by his representative on telephone to you. You are, therefrom charged that by making a wilful misstatement in your explanation with a dishonest intention of saving yourself from punitive action, you have thereby committed a breach of Rule 4 of the Municipal Servant's Conduct and Discipline Rules.

15. The scope of judicial review being well defined, in the light of permissible limits, I have to see whether the findings recorded by the Enquiry Officer are perverse or based on no evidence or that no reasonable person can arrive at the conclusion which is impugned or finding on its face is based on surmises and conjectures and incompatible with the Conduct Rules.

16. The first charge against the petitioner is that while working as Dy. Municipal Commissioner in the Corporation he was duty bound to observe the provisions of the Conduct Rules and Service Regulations, 1989 and the Act of 1888 but nevertheless since January, 94 until June, 94 he made several objectionable ulterances which were published in Bombay based morning and evening newspapers and by the said utterances the petitioner acted in most unbecoming manner to the stature of coveted post of Dy. Municipal Commissioner and crossed all the limits of decency as a public servant and made many wilful misstatements not only against the municipal servants and officers including elected representatives of the Corporation but also against the State Government including Ministers and thereby embarassing relations of the Municipal Corporation with the State Government and thus blatantly violated the provisions of Rule 4 and 31-A(a) of the Conduct Rules. It would be pertinent to note here that petitioner is specifically charged for violation of Rule 4 and 31-A(a) in making those utterances and therefore those utterances will have to be seen principally with reference to Rule 4 and 31-A(a) to find out whether petitioner has been guilty of misconduct. The Enquiry Officer found that this charge was in three parts viz. first part that between January-94 to June-94 the petitioner made many objectionable utterances which have been published in the Bombay base morning and evening newspapers and in making such utterances he acted in most unbecoming manner to the stature of the post of Dy. Municipal Commissioner. Second part of the first charge according to Enquiry Officer was that the petitioner made many wilful mis-statements against the municipal servants and officers and not only that but also against State Government including Ministers, and, third part was that by making such utterances the petitioner embarassed the relations of the B.M.C. with the State Government. To prove first charge the Corporation examined two witnesses viz. Shri Narendra Pathak and Shri Sandip Pradhan. Shri, Narendra Pathak is reporter from 'Maharashtra Times' and Shri. Sandip Pradhan is reporter from 'Loksatta'. Though the Corporation produced before the Enquiry Officer a file containing pages 1 to 166 of newspaper clippings from January, 1994 to June, 1994 yet in proof thereof only two witnesses were produced viz. Shri Narendra Pathak and Shri Sandip Pradhan and, therefore, the Corporation only proved the reports which appeared in Maharashtra Times and Loksatta on 1-02-1994. The evidence of these two witnesses is that the news reports appearing in Maharashtra Times and Loksatta reflected the true speech made by the petitioner in felicitation ceremony of Shri Avchat. The part of speech which formed the subject matter of the charge was : "in order to get employment in the Corporation as a Mazdoor Rs. 10,000/-, as a clerk Rs. 15,000/- and Ward Officer and Dy. Commissioner Rs. 50,00,000/- are required to be spent by a person and such amounts after obtaining the employment are recovered from the public at large within a short time". The petitioner when asked to explain the aforesaid report submitted to the Commissioner that what he had stated in fact was that in future for the purpose of obtaining employment, people may have to spend money. The Enquiry Officer, on consideration of preponderance of probability formed the opinion that the news reports in 'Maharashtra Times' and 'Loksatta' appear to be probable. According to Enquiry Officer on its face such statement casts aspersions not only on the authorities who are competent to appoint the lower employees but also on those who are competent to appoint officer of the rank of the Dy. Municipal Commissioner which involves the State Government as well as Public Service Commission. It would be seen that the petitioner is charged for violation of Rule 4 and 31(1)(a) of the Rules and curiously the only evidence that has been led by the Corporation is of the two reporters who have stated that the reports which appeared in the newspapers viz. 'Maharashtra Times' and 'Loksatta' respectively reflect truly the speech made by the petitioner. There is no other evidence produced by the Corporation and, therefore, question is whether the statement tantamounts to the misconduct as contemplated under Rule 4 and/or 31(1)(a) of the Act or the Conduct Rules framed by the Municipal Commissioner under powers vested in him by section 64(3) and section 83 of the Act of 1888. Section 83 provides that every Municipal Officer and servant may be reduced, removed or dismissed for any breach of departmental rules or discipline or for carelessness, unfitness, neglect of duty or other misconduct by the authority by whom such officer or servant is appointed. Thus, under section 83(1) breach of departmental rules, breach of discipline, carelessness, unfitness and neglect of duty or other misconduct may entail the reduction, removal or dismissal of the Municipal Officer. The Municipal Servants Conduct and Discipline Rules (for short, 'Conduct Rules') have been framed under section 83 and it provides that it shall apply to all employees of the Corporation as defined in Rule 2 of the Municipal Service Regulations. Rule 2 has the heading 'General' and followed upto Rule 40 dealing with specific items. Rule 41 provides for penalties. According to Rule 2 an officer or servant of the municipality shall always be courteous and cordial to all persons with whom he comes in contact in discharge of his duties. Under Rule 3 strict soberity is required of all officers and servants and attending duty under the influence of liquor and narcotics is deemed as misconduct. Rule 4 provides that dishonesty, wilful misstatements or concealment of facts and tampering with or destruction of records will amount to misconduct. Rule 5, 5-B, 6, 7. 8, 9, 10, 11, 12, 13, 13-B, 13-C, 14, 15. 18, 19, 20, 21, 22, 23, 28, 29, 30, 31-A, 33, 34, 35, 36 and 39 begins with the expression "no officer or servant shall....." Any infraction of these Rules is obviously misconduct. On the other hand Rule 5-A, 13-A, 18-A, 31 make the provision that Municipal Officer or servant shall act in a particular manner. Any act otherwise than in the manner permissible under the Rules with also be misconduct. I am not going into details of these rules, but suffice it to observe that these rules viz. from Rule 2 to 40 are in the nature of Code of Conduct which a municipal servant or officer is required to follow at all times in discharge of his duties and any act or conduct inconsistent with these Rules or any breach of the Rules shall entail penally prescribed under Rule 41. Rule 41 of the said rules provides for penalties and it reads any breach of these rules or any carelessness, unfitness, neglect of duty or other misconduct will render a Municipal Officer or servant liable to the penalties mentioned therein. Obviously, therefore, if a Municipal Officer or servant acts or omits contrary to or in breach of the prescribed rules from 2 to 40 it would constitute misconduct for disciplinary proceedings. The expression 'misconduct' has not been defined anywhere in the Act. The expression any breach of the rules in Rule 41 would show that in violation of Rules 2 to 40 is misconduct and would entail the penalties under section (Rule) 41. Although the Conduct Rules are elaborately framed but still acts or omissions stated in Conduct Rules cannot be said to be exhaustive and there may be certain acts or omissions which is not worthy of an officer or servant of the Corporation in the context of service and Conduct Rules and that may also fall within the mischief of misconduct. If a servant or officer conducts himself in a way inconsistent with his powers, functions and duties, he may be guilty of misconduct. The act or conduct which has nothing to do which may blame a municipal servant or officer in the context of his service and rules and which is in accord and consonance with his constitutional rights, such act or conduct may not fall in the category of mischief of misconduct.

21. It may be observed here that so far as present case is concerned, the petitioner in the charge No. 1 has been specifically charged for violation of Rules 4 and 31-A(a) of the Conduct Rules.

"Rule 4: Dishonesty, wilful misstatements or concealment of facts, and tampering with or destruction of records will amount to misconduct.

"Rule 31-A: A Municipal Servant shall not publish in his own name :-

(a) Any statement of fact or opinion which may embarrass the relations between the Corporation, the Government and/or the public or any section thereof."

It would be interesting to note that Rule 4 provides 'wilful misstatement' or 'concealment of facts' inter alia as 'misconduct' while Rule 31-A(a) provides that a municipal servant shall not in his own name publish any statement of fact or opinion which may embarrass the relations between the State Government and/or public. It would be thus seen that violation of Rule 4 and Rule 31-A(a) cannot be joined on the self-same facts because what is wilful misstatement cannot be a statement of fact or what is concealment of facts cannot be a statement of fact. If a statement of fact published by municipal servant has embarassed the relationship between the Corporation and the Government and/or public, it is misconduct under Rule 31-A(a) but then that statement cannot be wilful misstatement. What can be wilful misstatement under Rule 4 can never be statement of fact under Rule 31-A(a). Conversely what is statement of fact under Rule 31-A(a) cannot be construed as wilful misstatement under Rule 4. The charge No. 1 levelled against the petitioner is that he between Jan. 94 to June 94 made many objectionable utterances which were published in the newspapers, the said utterances had many wilful misstatements against municipal servants and officers including elected representatives of the Corporation but also against the State Government including ministers thereby embarassing the relations of the Corporation with the State Government and thus blatantly violated the provisions of Rule 4 and 31-A(a) of the Conduct Rules. The alleged misconduct of making such utterances 'objectionable' and 'unbecoming' has to be examined in the light of Rule 4 and 31-A(a) and not under general perceptions of the expressions 'objectionable' and 'unbecoming'. Despite petitioner's explanation to the Commissioner that his speech was not truly reported, but since the Enquiry Officer has found it probable that reports appearing in 'Maharashtra Times' and 'Loksatta' reflect correctly the speech made by the petitioner, I proceed with the assumption that such statement was in fact made by the petitioner and making of such statement is proved by the two reporters produced by the Corporation. But whether such statement was 'wilful misstatement' no evidence worth the name has been led by the Corporation before Enquiry Officer. Under Rule 4 misconduct is 'wilful misstatement' and/or 'concealment of facts'. The Corporation proceeded on the assumption that utterances were objectionable and wilful misstatements which were most unbecoming manner to the stature of coveted post of Dy. Municipal Commissioner. A misstatement is a statement made incorrectly and wilful misstatement is a statement made incorrectly knowing it to be so. The expression 'wilful misstatement' denotes intentional state of mind and is made knowing it to be a misstatement. The objectionable utterances which I have already produce above read, 'that in order to get employment in the Corporation as a Mazdoor Rs. 10,000/-, as a clerk Rs. 15,000/- and as Ward Officer and Dy. Commissioner Rs. 50,00,000/- are required to be spent by a person and by obtaining employment such amount is to be recovered from the public at large within short time'. Can a presumption be raised that the said statement is 'wilful misstatement'? I am afraid the law does not permit such presumption to be drawn. May be the statement was not correct. May be the statement was inaccurate, but, the burden lay on the Corporation to prove that the said statement was knowingly made as misstatement. It was required to be proved as a fact by the Corporation before the Enquiry Officer that the said statement was misstatement and wilfully made as misstatement. The reporters who have been produced viz. Shri Narendra Pathak and Shri Sandip Pradhan could not and have not stated that the said statement was misstatement or wilful misstatement made by the petitioner. They have only proved the fact that such statement was made by the petitioner and the newspaper report reflect the true contents of the speech made by him. It is difficult to appreciate the contention of Mr. Singhvi that the said utterances per se were unbecoming of an officer of the Corporation. It is of course, and would be unbecoming of an officer of the Corporation, if it is wilful misstatement but if it is not wilful misstatement, the only other rule in Conduct Rules is Rule 31-A(a) which makes a statement of fact to be misconduct only if such statement embarasses the Corporation and Government and the public and the Corporation. If a public servant under the employment of an employer covered under Art. 12 of the Constitution of India exercises his fundamental right which is not inconsistent with the forbidden province of Conduct Rules framed, such act or conduct in exercise of fundamental rights cannot per se be termed as misconduct. The Corporation admittedly is covered under Article 12 of the Constitution of India and the employee of the Corporation does not cease to enjoy his fundamental rights on acceptance of his employment in the Corporation. An employee under the employer covered under Article 12 of the Constitution of India though does not enjoy the rights under Part XIV of the Constitution of India but, such employee continues to enjoy his rights under Part III of the Constitution which are fundamental in its character. It is true that the fundamental right of freedom of speech and expression conferred on every citizen of this country under Article 19(1) can be regulated by putting reasonable restriction under Clause 2 of Article 19(1). The employer, covered under Article 12 of Constitution of India, therefore, may impose reasonable restriction on the exercise of the fundamental right of speech and expression conferred by Clause 1(a) of Article 19 upon the employee as citizen of the country by making suitable and appropriate Conduct Rules in conformity with Clause 2 of Article 19. Such restriction obviously has to be in writing and must be able to stand the test of reasonableness as provided in Clause 2 of Article 19. Infraction of such restriction or crossing the area of restriction by the public servant then may be construed as misconduct. As the Apex Court has ruled in A.L. Kalra (supra) that when misconduct entails penal consequences, it is obligatory on the part of the employer to specify with precision and accuracy the act and conduct which may constitute misconduct lest ex-post facto interpretation of incident may be camouflaged as misconduct. The conscioustious employee from the bottom of his heart, if voices his concern against corruption, if any, prevalent in the organisation where he is employed and such expression of concern is not specifically forbidden under the Conduct Rules, I am afraid such expression or statement or utterances can be construed as a misconduct per se visiting the penal consequence of dismissal or removal. The fact of the matter here is that the Conduct Rules framed by the Corporation even if not exhaustive elaborately deals with the Code of Conduct expected of its employees, officers and servants and in the said Conduct Rules there is no such prohibition that Municipal Officer or servant shall not make statement about state of affairs prevalent in the Corporation. What is forbidden under Rule 31-A(a) of the Rules is that municipal servant shall not publish in his own name any statement of fact or opinion which may embarass the relations between the Corporation and Government and or in public or any section thereof. Thus prohibition contemplated is publication of statement of fact or opinion which may embarass the relations between the Corporation, Government and/or public or any section thereof. Rule 31-A(a) only prohibits the statement of fact or opinion by municipal servant which embarasses the relations between the Corporation and Government or public or any section thereof. Each and every statement of fact or opinion expressed by the employee or the publication of such statement of fact or opinion is not prohibited under the Conduct Rules unless it embarasses the relations between the Corporation, Government and/or public or any section thereof. The Enquiry Officer himself has found that the Corporation has not produced any material to show that utterances made by the petitioner resulted in embarassing the relations between the Corporation and the Government and that is why Enquiry Officer did not find charge No. 1 one under Rule 31-A(a) proved against the petitioner. 'An unbecoming of an officer' is not expressly made a misconduct under .Conduct Rules. As the Supreme Court has highlighted in A.L. Kalra what is unbecoming of public servant may vary with individuals and expose employees to vegaries of subjective evaluation. To quote Apex Court, "what in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation." At best in my view the person holding the position of officer in the employment of Corporation, can be held 'unbecoming of officer.' (i) if the conduct of such employee is not in conformity with the ordinary norms of decency or morality, (ii) if employee's conduct is not in consonance with the laws of the land which he is bound to respect, (iii) if conduct of the employee is inconsistent with the Conduct Rules or other regulations framed by the employer and (iv) if the conduct of the employee is against the declared policy of the Government or the employer. The public statement of corruption made by the employee; if not wilful misstatement, cannot be presumed to be not in conformity with the ordinary norms of service. Such statement per se cannot be construed as misconduct entailing serious civil consequences resulting in loss of service. If the statement is untrue or incorrect or is false then obviously it falls in the category of misstatement, and when wilfully made, the employee would be guilty of misconduct. The crucial test, therefore, is whether the utterances made by the petitioner were 'wilful misstatements' or not. The Corporation did not lead any evidence worth the name to prove that the said utterances which appeared in the newspapers and proved by two reporters were misstatements much less 'wilful misstatements'. The Corporation could have produced the person conversant with the affairs of the Corporation to prove that the utterances made by the petitioner, viz., "in order to get employment in the Corporation as a mazdoor Rs. 10,000/-, as a clerk Rs. 15,000/- and Ward Officer and Dy. Commissioner Rs. 50 lacs are required to be spent by a person and such amount after obtaining the employment within a short time is recovered from public at large in short time" were palpably incorrect. The evidence could have been led to show that Corporation has not received any complaint with regard thereto. The petitioner's record is not shown to be bad. Rather the averment made in the writ petition that petitioner has always been honest and upright officer is not denied in the reply submitted by the Corporation. Therefore when such serious statement about corruption in the Corporation was made by the officer of status of Dy. Municipal Commissioner, an independent and unbiased investigation ought to have been made to find whether there was an iota of truth in the allegations. If on investigation the allegation made by the petitioner in his public statement was found uncorroborated, the petitioner could have proceeded with disciplinary action and during disciplinary inquiry such investigation report could have been produced as material in support of the charge. In the absence of any evidence worth the name how the Enquiry Officer could have held that the statement on its face is wilful misstatement against the municipal servants and officers and also against State Government including ministers. If slightest of legal evidence would have been led by the Corporation to establish that the said utterances were incorrect or untrue and made knowingly it to be untrue, obviously charge of misconduct, unless disproved by the delinquent would stand proved, but in the absence of any legal evidence, on the basis of surmises and conjectures it could not have been held that utterances were wilful misstatements. It appears that Enquiry Officer proceeded with the assumption that the utterances made by the petitioner referred-to hereinabove were wilful misstatements and, therefore, objectionable and unbecoming of an officer holding the post of Dy. Municipal Commissioner. The charge has not been substantiated by any evidence whatsoever so far as Rule 4 of the Conduct Rules is concerned, and, in my view on the basis of assumption, presumption and surmises and conjectures no conclusion could have been arrived at by the Enquiry Officer that statement made by the petitioner was 'wilful misstatement'. It would be pertinent to note that petitioner has been specifically charged of these utterances in charge No. 1 under Rule 4 and 31-A(a) of the Conduct Rules and therefore generality of misconduct like 'objectional utterances' and 'unbecoming of officer' has to be read in the light of Rule 4 and 31-A(a). The Enquiry Officer held that charge under Rule 31-A(a) was not proved. Charge under Rule 4 relating to aforesaid statement as wilful misstatement made by the petitioner as discussed above has also not been proved by the Corporation by leading any legal evidence whatsoever.