(1) These petitions, under Article 226 of the Constitution, raise an identical question of law, namely, whether Rule 7 of the Mysore Government Servants Conduct Rules 1957, to be hereinafter referred to as the 'Rules' is violative of Article 19 of the Constitution.
(2) W.P. No. 1248/64 raises an additional contention, namely, that in addition to the aforesaid Rule 7. Rule 10 is also violative of Article 19 of the Constitution.
(3) The petitioners are members of the Executive Committee of the Mysore State non gazetted Office's Association, to be hereinafter referred to as the 'Association'. They have been served with notices dated June 25, 1965, requiring them to show cause as to why no disciplinary action should not be taken against them for publishing certain objectionable statements in the pamphlet entitled 'Saga of our Struggle'. It is said that those statements contravene Rule 7(1) of the 'Rules'. The passage in the pamphlet objected to reads:
'To make matters worse, the Government, who are embarrassed at the unusual upsurge of N.G.Os. throughout the State, in their frantic efforts to curb the movement, have resorted to such unwise and hasty tactics, such as restricting the movements of the Association activities, victimising the President by giving her compulsory retirement under some silly excuse, transferring the officials participating in Association works etc.'
(4) In addition to that notice, the petitioner in W.P. No. 1248 of 1965 has been served with a memo dated June 22, 1965, which reads:
'Shri B.N. Krishnappa, in a speech made on 27-5-65 in a public meeting of the N.G.Os held at Kanakpura has adversely criticised Government. The speech was made in Kannada and the extracts of the speech are enclosed. By adversely criticising a record policy or action or Government in public utterance and by asking for contribution to the raising of money for Distress Relief Fund of the N.G.Os, Shri Krishnappa has violated Rule 7(1) and Rule 10 of the Government Servants Conduct Rules.
Shri B.N. Krishnappa is hereby called upon to show cause within 10 days from the date of receipt of this communication why Departmental proceedings should not be taken against him under the provisions of the C.C.A. Rules.'
(5) As soon as the aforementioned notices were received by these petitioners, they have approached this court with a prayer that this court may be pleased to issue a Writ of Certiorari or any other appropriate Writ, order or direction quashing the notices in question, as they are ultra vires of the Constitution, illegal and were issued without the authority of law.
(6) The petitioner in W.P. No. 1248 of 1965 has further prayed that this court may be pleased to quash the memo dated June 22, 1965, issued by the fourth respondent in that petition, at the instance of the Second respondent.
(7) On the grounds urged the appropriate prayer would have been to ask for a Writ of Prohibition, prohibiting the respondents from holding the threatened enquiries.
(8) As mentioned earlier, the petitioners are members of the Executive Committee of the 'Association'. The 'Association' is governed by the Rules known as 'Rules of the Mysore State non gazetted Officer Association. Bangalore'. The said rules have been approved by the 'Government of Mysore'. The declared objects of the 'Association' among others are to promote Esprit De Corps amongst all non gazetted officers to advance the social, moral and material welfare of the members and also to consider and suggest improvements in their conditions of Service, prospects, pay, pension, provident fund, allowance, etc. According to rule 5 of the Rules, all the non gazetted officers employed under the Government of Mysore, except those who are specifically prohibited from being members of any service association and those coming under Class IV Service are eligible to become the members of the 'Association'. Under Rule 12 of the Rules, the general direction and management of the 'Association'. Under Rule 12 of the Rules, the general direction and management of the 'Association' is vested in an executive Committee. The Committee membership consists of not more than 35 members, of whom 12 shall be elected from among the officials residing and employed in the City of Bangalore, who shall be elected from among the officials residing and employed in the City of Bangalore, who shall be elected at the annual general meeting of the N.G.Os. of the City and 19 shall be the representatives of the Districts one representing each District.
The petitioners had been elected as Executive Committee Members of the 'Association' for the current term. The petitioners case is as follows: The 'Association' had placed before the Government a number of demands like pay scales, D.A., as per the Central Government rates, house rent allowance as per the Madras rate, housing facilities, children's education concession, medical benefits and reduction of insurance premium etc. It has been peacefully agitating before the Government to get those demands conceded. Since the Government failed to concede the reasonable and the legitimate demands of their N.G.Os., the 'Association' has constituted a Joint Council of Action in consultation with the other service association to press their demands on the Government. In the meantime, the Government passed order compulsorily retiring Smt. Mary Davasia who is the President of the 'Association' and also the Chairman of the Joint Council of Action. Smt. Mary Davasia was compulsorily retired by the order passed by the second respondent on 30th April 1965.
The 'Association' felt against that unjust order of the Government because she was victimised by the Government for her association activities. Therefore, the 'Association' demanded the Government that the order compulsorily retiring Smt. Mary Davasia should be rescinded and that she should be reinstated. The 'Association' submitted memorandum both to the Governor of Mysore and also to the Chief Minister in that connection. Thereafter, the 'Association' held peaceful demonstration and meetings in support of their demands with a view to convince the Government of their joint claim. In order to keep its members informed of all its activities and the steps taken by it, in support of their demands, the 'Association' issued a printed booklet known as 'Saga of our Struggle'. The said booklet has been issued by the 'Association' in order to bring to the notice of all its members the activities of the 'Association' and not with a view to adversely criticism the Government.
(9) As mentioned earlier, the publication of that booklet has resulted in the disciplinary proceedings referred to earlier. In the show cause notices issued it is alleged that every member of the Central Executive Committee of the 'Association' has violated Rule 7(1) of the 'Rules'.
(10) According to the Government, the passage in question amounts to a criticism of recent policy or action of the Government and hence each member of the Central Executive Committee of the 'Association' is guilty of violating Rule 7(1) of the 'Rules'.
(11) The contention of the petitioners is that the booklet in question was issued by the Central Executive Committee of the 'Association' on behalf of the 'Association' for the benefit of its members to explain the activities of the 'Association'. In the Writ Petitions they have pleaded that every citizen of this country is entitled to form and organise association of his choice under Article 19(1)(c) of the Constitution. Hence, in exercise of their fundamental rights, the N.G.Os. have formed the 'Association'. According to them, the freedom to form an association with any lawful purpose must include the right to carry on its affairs and to do all such acts which are necessary to attain the objects of the association. They submitted that in issuing and publishing the booklet in question, they were well within the rights guaranteed to them under Articles 19(1)(a) and 19(1)(c). They further pleaded that Rule 7(1) has the effect of imposing unreasonable restrictions on the exercise of their fundamental rights and consequently that rule is void.
(12) The petitioner in W.P. No. 1248 of 1965 pleaded that in addition to Rule 7(1), Rule 10 is also violative of Article 19(1)(c) because, the objects of the 'Association' cannot be carried out unless the 'Association' has sufficient funds to carry on its activities. He asserted that if Rule 10 is allowed to stand, then the right guaranteed under Article 19(1)(c) would become illusory.
(13) The respondents, in their counter-affidavit, have taken a preliminary objection as to the maintainability of these petitions. They pleaded that these petitions are premature inasmuch as it is open to the petitioners to put forward and plead their cases before the Domestic Tribunal and they need approach this Court only if they are not satisfied with the decision of that Tribunal. It was further pleaded by the respondents that in view of the declaration of emergency, the petitioners could not invoke the protection of Article 19(1) of the Constitution. In their counter-affidavit, the respondents have taken the stand that there is no fundamental right to any citizen to be a Government servant and if he accepts Government service, he is bound by the Rules framed by the Governor under Article 309; violation of those Rules will be a breach of discipline which would justify the appropriate authority in taking disciplinary action against those guilty of breach of those Rules. Their case is that in order to maintain proper discipline in public service and efficiency in administration, it is necessary to place restrictions on the freedom of speech of Government servants. According to them, such restrictions arbitration necessary in the interests of public order and those restrictions are reasonable restrictions imposed in the interest of the general public. Their further case is, Article 19(1)(c) has no application to the facts of these cases, as no restriction has been placed on the petitioners in the matter of forming associations.
(14) Dealing with the criticism of the action taken against Smt. Mary Davasia, the respondents submitted that Smt. Mary Davasia had submitted Memorandums both to the Governor of Mysore and to the Chief Minister in the matter of her compulsory retirement; before any orders were passed on those representations, the booklet referred to earlier, had been published criticising the action taken by the Government and that in highly objectionable language. According to the respondents, the publications of that booklet was an attempt to coerce the Government and the Governor to accept their demands by and characterising that any other view of the matter, as unwise, actuated by collateral motives, hasty and wrong tactics.
(15) The respondents contended that both Rule 7 as well as Rule 10 are valid Rules.
(16) At the time of the hearing, the learned Advocate-General informed us that he does not press his objection based on Article 352 read with Article 358 of the Constitution as the Rules impugned were not enacted after the emergency was declared. Hence, it is not necessary to go into that objection.
(17) There is no force in the preliminary objection that these petitions are premature; Nor is it correct to say that the petitioners have any adequate alternative remedy. In these cases, the petitioners are challenging the validity of certain Rules framed under Article 309 of the Constitution. The Domestic Tribunal which is a creature of those Rules cannot go into that contention. That Tribunal's jurisdiction is limited to finding out whether there is any contravention of those Rules. In these petitions we are not concerned with the merits of these cases. Our task is something different. We are concerned with the vires of the impugned Rules. If those Rules are void, then there is no point in pursuing a fruitless enquiry. To avoid harassment of the petitioners and waste of public time and money, it is both just and proper to go into the validity of the impugned Rules at the earliest stage. Our view in this regard, is supported by several decisions of the Supreme Court. See: Bengal Immunity Co., Ltd., v. State of Bihar, : 2SCR603 : Kameshwar Prasad v. State of Bihar, : (1962)ILLJ294SC : and O.K. Ghosh v. E.X. Joseph, : (1962)IILLJ615SC .
(18) The validity of Rule 7(2) was not questioned before us. It is a permissive provision.
(19)The petitioners merely challenge the validity of Rule 7(1).
(20) Now coming to Rule 10, the case for the petitioner in W.P. No. 1248/65 is that he appealed to the members of the 'Association' for contribution and that in accordance with the Rules of the 'Association'. As seen earlier, those Rules had been approved by the Government. Therefore, this contention is correct, his action is in accordance with rule 10. Hence the question of validity of Rule 10 does not arise for consideration. Whether his action is protected by Rule 10 or not is a matter to be enquired into by the Domestic Tribunal.
(21) Mr. Mohan Kumaramangalam, the learned counsel for the petitioner conceded that no Government servant can be permitted to collect funds from the general public; otherwise there would be an end of both discipline and efficiency. He very rightly did not press the contention that Rule 10 is an invalid Rule.
(22) In questioning the validity of Rule 7 though in the petitions, reliance had been placed both on Article 19(1)(a) and 19(1)(c), Mr. Mohan Kumaramangalam did not place any reliance on Article 19(1)(c) at the time of the hearing. His only contention was that Rule 7(1) is violative of Article 19(1)(a). Hence, there is no need to go into question whether the said Rule infringes Art. 19(1)(c).
(23) This leaves us with the question whether Rule 7(1) is violative of Article 19(1)(a).
(24) The contention that a Government servant is not entitled to the Constitutional guarantee given to the citizens of this Country under article 19(1)(a) cannot be accepted in view of the decisions of the Supreme Court in : (1962)ILLJ294SC ; and : (1962)IILLJ615SC . In those cases, the Supreme Court held that the Constitution of India does not exclude Government servants as a class from the protection of the several rights guaranteed by the several Articles in Part III save in those cases where such persons are specifically named; Article 33 of the Constitution having 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, 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 though the nature and incidents of the duties which they have to discharge in that capacity might necessarily involve restrictions of certain freedom in relation to article 19(1)(e) and (g).
(25) The plea that no one in this country has a fundamental right to become a Government servant but if a person chooses to become to a Government Servant, he must be deemed to have agreed to abide by the conditions of services prescribed and to that extent, he should be held to have waived the rights conferred on him by Article 19 does not appear to be a tenable plea. On the facts of these cases, it is unnecessary to consider whether the fundamental rights guaranteed under Article 19 can be waived. Suffice it to say the our attention has not been drawn to any agreement entered into between the Government and the petitioners, whereunder the petitioners had waived the rights conferred on them by Article 19. Disciplinary proceedings are launched against them on the basis of the rules framed by the Governor under Article 309 of the Constitution. Those rules have the force of law. If any of those rules it violative of any of the provisions in Part III of the Constitution, it should be held to be void under Article 13(2) of the Constitution. The Rule with which we are concerned in these case was framed after the Constitution came into force.
(26) Rule 7(1) of the Rules reads as follows:
Criticism of Government:
(1) No Government Servant shall, in any radio broadcast or in any document published anonymously or in his own name, or in the name of any other person or in any communication to the Press or in any public utterance make any statement of fact or opinion;
(i) Which has the effect of any adverse criticism of any decision of his superior officers, or any current or recent policy or action of the Mysore Government or the Central Government or the Government of any other State or a local authority.
(ii) Which is capable of embarrassing the relations between the Government of Mysore and the Central Government of any other State;
(iii) which is capable of embarrassing the relations between the Central Government and the Government of any Foreign State.
Provided that nothing in this Rule shall apply to any statements made or views expressed by a Government servant in his official capacity or in the due performance of the duties assigned to him.'
There is no doubt and that fact was not disputed before us that the Rule in question puts serious fetters on the freedom of speech of the Government servants. The fact that the said Rule violates the freedom guaranteed to a citizen of this Country, under Article 19(1)(a) cannot be and was not denied before us.
(27) According to Mr. Mohan Kumaramangalam, the learned counsel for the petitioners, the impugned Rule cannot be saved unless it is held that it imposes reasonable restriction on the exercise of the right to freedom of speech and expression in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, in relation to contempt of court, defamation or incitement to an offence. On behalf of the State, the contention was that the restriction in question is a reasonable restriction imposed in the interest of public order and decency. That being so, it is unnecessary to consider the remaining parts of clause (2) of Article 19.
(28) We fail see how any question of decency arises in these cases. The expression 'decency' in Article 19(2) is not used in the sense of correct behaviour. What Article 19(2) means is that it is competent for the State to make any law in the interest of 'decency' though such a law may impose reasonable restrictions on freedom of speech and expression. What can be prohibited under that provision is indecent speech and expression. We are unable to agree with the learned Advocate-General that every inappropriate speech or expression is in law an indecent one. The term 'decency' in the context means, avoidance of obscene language and gestures.
(29) Now turning our attention to the passage objected to in the pamphlet 'Saga of our Struggle', we do not think that it could be said indecent one. Whether one could object to the propriety of the statements contained there in or not, it cannot be said that those statements are indecent statements. Even if we accept the contention of the learned Advocate-General that the term 'decency' found in Article 19(2) includes also inappropriate statements, Rule 7(1) is wide enough to bring within its net all statements of facts and expressions of opinion whether decent or not. Hence the entire Rule must be held to be violative of Article 19(1)(a) as it is not possible to dissect the Rule and remove the invalid portion from the valid portion
(30) Now coming to the contention of the learned Advocate-General that under Rule 7(1) reasonable restrictions are placed on the Government Servants' right to freedom of speech or expression in the interests of public order, he urged that if the Government servants are permitted to make statements of fact or express opinions in public which have of adverse criticism of any current policy or action of the one or the other authorities mentioned in the Rule, then there will be no discipline in the ranks of the Government servants; lack of discipline will lead to lack of efficiency in work; the two put together would create chaos in administration; indiscipline on the part of the Government servants is likely to lead to ugly situations which in the final analysis may lead to public disorder.
(31)A contention similar to this was repelled by the Supreme Court in O.K. Ghosh's Case, : (1962)IILLJ615SC . Therein it was laid down that a restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct; indirect or far-fetched or unreal connection between the restriction and public order cannot be aid to be reasonable on the ground that its connection with public order cannot be said to be relate on the ground that its connection with public order is remote or far-fetched. Hence, we are unable to agree with the learned Advocate-General that the impugned Rule can be considered as a reasonable restriction in the interests of public order and thus saved by Article 19(2).
(32) The next contention of the learned Advocate-General was that the validity of the impugned Rule will have to be judged not merely by the tests provided by Article 19(2) but also by taking into consideration the occupation of the petitioners. In that context, the court shall see whether the impugned rule cannot be considered as a reasonable restriction impugned on the Government servants in the interests of the general public and thus falling within sub-article (6) of Article 19. On this branch of the case his arguments proceeded thus; a Government servant, as a citizen of this country, is entitled to freedom of speech and expression, but being a Government servant he has special duties and responsibilities; his occupation requires him to be disciplined and efficient without which there will be chaos in the administration; a public servant who indulges in public criticism of recent policy or action of Government cannot remain disciplined; and consequently his efficiency is bound to suffer.
According to him, it would be a sad day for the Country if Government servants are permitted to publicly criticise the Government's policy or action; as Government servants they are expected to loyally implement the policy decisions taken by Government it is through them the Government implements its policy; If the very persons through whom the Government acts are avowedly critical of the policy to be implemented then administration would become well nigh impossible. Hence, he asked us to test the validity of the impugned rule, not merely by the yardstick provided by Article 19(2) but also by that provided by Article 19(6).
(33) There is no doubt that when the constitutionality of an enactment is challenged on the ground of violation of any of the Articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary. In such a case, the Court has to consider the subject matter of the legislation, the area in which it is intended to operate and the purports and intents of the legislation. In order to do so, it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy. See: Hamdard Dawakhana v. Union of India, : 1960CriLJ671 .
As observed in that case, that freedom of speech goes to the heart of the natural right of an organised freedom loving society to 'impart and acquire information about the common interest'; if any limitation is placed which results in the society being deprived of such right then no doubt it would be violative of the rights guaranteed under Article 19(1)(a); but if all it does is that it deprives a trader from commending his wares it would not fall within that Article. It is not the form or incidental infringement that determines the constitutionality of a statute, in reference to the rights guaranteed in Article 19(1) but the reality and substance. What we have to see is whether having regard to the scope and object of the Rule, its true nature and character it interferes with the right of freedom of speech or whether it merely places reasonable restrictions in the interests of the general public on as guaranteed by Article 19(1)(g).
(34) No one clause in Article 19 can be looked into in isolation. There is a great deal of overlapping of the rights guaranteed under that Article. Therefore, the impose of every right guaranteed along with restrictions that could be validly imposed on that right on the other guaranteed rights should not be overlooked. A citizen of this country is not merely a citizen, he may have other capacities. In determining the validity of any restriction placed on him, his duties and responsibilities arising from his occupation will have to be considered. That position is made clear by the decisions of the Supreme Court in Kameshwr Prasad's Case. : (1962)ILLJ294SC and O.K. Ghosh's case. : (1962)IILLJ615SC . Therefore, we have to see whether the impugned Rule can be considered as a reasonable restrictions in the interests of general public on the exercise of the rights conferred on the petitioners under clause (g) of sub-article (1) of Article 19.
As seen earlier, the impugned Rule prohibits the publication of any document or any public utterance by a Government servant which has the effect of any adverse criticism of any current or recent policy or action of the Government. Unlike the Central, Civil Services (Conduct) Rules, 1964, not even bona fide expression of views by any Government servant 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 servants or for securing an improvement thereof is allowed by the 'Rules'. A blanket restriction is placed on the Government servants prohibiting them from making any public utterance even if it be a utterance relating to then conditions of service and that at a meeting of an association of Government servants, if it has the effect of any adverse criticism of any current or recent policy or action of the Government. The Rule in question is so wide as to include all adverse criticism of recent policy or action of the Government whatever that policy or action may be. A rule of this character cannot be said to be a reasonable restriction imposed in public interests, on the rights guaranteed under Article 19(1)(g).
We fail to see how public interest will be served by requiring a Government servant to refrain from criticising the Government's policy or action, relating to his conditions of service or matters connected with them, even if it be only in the presence of his colleagues. Public interest requires that Government servants should be contended efficient and disciplined. This cannot be achieved by gagging their months. No useful purpose will be served by forming an association of theirs if the Government servants are deprived of the opportunity of discussing the Government's policy or action relating to their conditions of service, which proves may unnecessarily involve criticism of the policy or action of the Government. It may be that a Government servant cannot be permitted to go to the general public and denounce any of the Government's policy or action.
He may be deprived of that liberty because of his station in life and the duties that he has to perform. But, if he is restrained from criticising the Government's policy or action regarding his conditions of service in his own association meetings or if he is prohibited from circulating any document among the members of his own association criticising the Government's policy or action relating to his conditions of service or about matters connected with them, the same cannot be said to be a reasonable restriction in the interest of the general public.
(35) As mentioned earlier, the impugned Rule is so wide as to prohibit all adverse criticism of current or recent policy or action of the Government and it is not possible to separate its valid portion from that which is invalid.
(36) The learned Advocate-General wanted us to so construe the impugned Rule as to confine its operation only to the objectionable activities of Government servants. In that connection he invited our attention to fact that the first thing the Rule prohibits is a radio broadcast which could only mean a broadcast to the general public; therefore, according to him what the Rule prohibits is the public denunciation of the Government's policy or action, the public in the context meaning the general public and not a section thereof. He urged that if that interpretation is accepted then criticism by Government servants of any government's policy or action relating to their conditions of service in their own association meetings will not fall within the vice of that Rule. He contended that if we are to consider the Rule in question s being ambiguous, and is capable of two interpretations, then we should place that interpretation which will be consistent with the Constitution.
In this connection he invited our attention to the decision of the Supreme Court in R.L. Arora. State of Uttar Pradesh, : 6SCR784 , where in it was laid down that it is well settled that if certain provisions of law construed in one way will be consistent with the Constitution, and if another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. We see no ambiguity in Rule 7(1). It is quite plain. Therefore, no question of interpretation arises. The Rule in question plainly and unambiguously any document or from making any public utterance which has the effect of any adverse criticism of any current or recent policy or action of the Government. That Rule is incapable of being construed in the manner the learned Advocate-General wants us to construe.
As observed by the Supreme Court in State of Rajasthan v. Mrs. Lella Jain, : 1SCR276 , unless the words are unmeaning or absurd, it would not be in accord with any sound principle of construction to refuse to give effect to the provisions of a statute on the very elusive ground that to give them their ordinary meaning leads to consequence which are not in accord with the notions of propriety or justice entertained by the Court. No doubt, if there are other provisions in the statute which conflict with them, the Court may prefer the on and reject the other on the ground of repugnance. Again when the words in the statute are reasonably capable of more than one interpretation, the object and purpose of the statute, a general conspectus of its provisions and the context in which occur might induce a court of adopt a more liberal or a more strict view of provisions, as the case may be, as being more consonant with the underlying purpose. But, it is not possible to reject words used in an enactment merely for the reason that they do not accord with the context in which they occur, or with the purpose of the legislation as gathered from holds good in the case of interpretation of a Rule framed under Article 309 of the Constitution. The contention of the learned Advocate-General runs counter to the principles enunciated in the above decisions.
(37) For the reasons mentioned above, we hold that Rule 7(1) is void as being violative of Article 19 of the Constitution.
(38) In the result, W.Ps. Nos. 1212, 1231 to 1234 and 2021 of 1965 are allowed in full and a writ of Prohibition will be issued to the respondents prohibiting them from holding any enquiry against the petitioners herein for the alleged violation of Rule 7(1). So far as W.P. No. 1248 of 1965 is concerned, that petition is party allowed and a writ of Prohibition will be issued to the respondents prohibiting them from holding any enquiry against the petitioner therein under Rule 7(1). But, that petition to the extent it challenges the validity of Rule 10 fails and to that extent it is dismissed.
(39) The petitioners are entitled to their costs of these petitions from the respondents. Advocate's fee R.100.
(40) Order accordingly.