Sivaraman Nair, J.
1. Can an employee of a Statutory Authority-or any employee for that matter-who invites the attention of the employer to adverse comments in the press about the employer be said to have committed a misconduct and placed under suspension? Is not such action of the employer violative of the employee's right to free speech? These interesting questions arise in this original petition.
2. Petitioner is the Head Accountant in the Kerala Wakf Board. He was suspended from service by Ext. P 8 order in view of the misconduct involved in the submission of Ext. P 4 representation and in spite of Ext. P 7 submitted by the petitioner. Counsel for the petitioner submits that the submission of Ext. P 4 does not disclose any misconduct, nor does it justify any disciplinary action against him, in aid of which alone, he can be kept under suspension. The petitioner, therefore, seeks the issue of a writ of certiorari to quash Ext. P 8 order.
3. Exts. P1 to P3 are three newspaper reports, which were published early in June this year, relating to some alleged irregularities in the handling of Wakf properties situated at Alleppey and Quilandy. In Ext. P-1, it was insinuated that the depradation of wakf properties were made with the connivance of officers and other responsible persons in the Wakf Board, so as to disable action being taken against the offenders. Ext. P-2 report similarly contained an insinuation that connected documents were brought into being and were being used in proceedings before the Tribunals by clandestine means for creating some rights in favour of the offenders. Ext. P3 also insinuated that clandestine transactions regarding wakf properties were being indulged in by powerful people and action was not being taken in spite of the fact that these illegalities were brought to the notice of the Wakf Board. In Ext. P-4 signed by 18 persons including the petitioner, attention of the Board was drawn to Exts. P1 to P3 newspaper reports containing allegations relating to transactions involving wakf properties. It proceeded to request that detailed enquiries might be conducted into the allegations, and that the Government might be required to conduct an enquiry through the Vigilance Department as to whether any responsible person in the Wakf Board was involved in any dereliction of duty or illegal interference in the above transactions. The petitioner submits that the employees of the Board were justified in submitting Ext. P-4 to the Board in the light of the allegations insinuating that many of the officers of the Board were involved in the illegal transactions so that an enquiry was conducted enabling the employees to clear them. It is further submitted that Ext. P 4 did not contain any reckless or scurrilous attack against the Board and was submitted in an anxiety to clear the institution and its employees of all allegations of impropriety in the conduct of a public Statutory authority. The petitioner submits that this is part of his fundamental freedom of speech, and that submission of representations in the nature of Ext. P 4 does not involve any misconduct, particularly in view of the fact that rules have not so far been framed by the Wakf Board defining misconduct of its employees.
4. The Standing Counsel appearing for the respondents submits that the insinuation contained in Ext. P 4 representation requesting for an enquiry by the Vigilance Department amounts to allegation of gross criminal misconduct on the part of the Board without any materials in support thereof. He submits that publication of irresponsible news items like Exts. P1 to P3 was clutched at by the petitioner to raise serious allegations of corruption against responsible persons in the Wakf Board by seeking Vigilance Enquiry against such persons. It is further submitted that the signatories in Ext. P 4 excepting the petitioner, informed the Board that they were coerced into signing Ext. P4; and such incitement of other employees to participate in the misconduct of submission of Ext. P 4 itself amounts to yet, another misconduct. He submits that a preliminary investigation was conducted on receipt of Ext. P4; and such enquiry disclosed that the above mentioned misconduct was actually committed by the petitioner. Counsel submits that that also amounts to disobedience and defamation of the Board and waging war against it. In these circumstances. Ext. P8 order of suspension of the petitioner is claimed to be fully justified. According to him, Ext. P 4 cannot be justified as justifiable criticism; and even in the absence of rules defining misconduct, the conduct of the petitioner in signing Ext. P 4 and forcing other co-employees to sign the same will provide sufficient justification for instituting disciplinary proceedings against the petitioner and keeping him under suspension.
5. There is no gain-saying that the important allegation against the petitioner, on the basis of which action was decided to be taken against him was that he raised serious allegations against responsible persons in the Board in a representation and coerced other staff including his subordinates to subscribe their signatures to such a representation. Counsel for the petitioner submits that if the submission of Ext. P 4 representation does not amount to waging war against the Board or in any other manner a misconduct, the order of suspension has to be vacated, since, evidently, the suspension order is considerably influenced by this serious allegation of misconduct. Counsel for the Board, on the other hand, submits that this Court need and can only consider whether the order of suspension on the whole was so bereft of bona fides that this disciplinary measure adopted by a statutory authority should be interferred with at this stage so as to compel the Board to continue in employment an insubordinate employee until after he is cleared of the allegations in a departmental enquiry which is already in progress.
6. The answer to the questions posed by the petitioner, on the facts of this case, is not easily given. The basic question which has to be answered is whether the submission of Ext. P 4 to the Board amounts to misconduct. If it does, the suspension cannot but he upheld. If otherwise, the order of suspension seems to be destined to fail.
7. Naturally, this throws up two important questions viz. (a) whether Ext. P 4 is protected by the petitioner's right of freedom of speech? and (b) whether the submission of Ext. P 4 involves misconduct in relation to which an enquiry can be conducted by the first respondent, and in aid of which an order of suspension in the nature of Ext. P8 can be issued by the Board.
8. The question whether and when criticism of an employer amounts to misconduct has been considered in a few decisions in India and abroad. The earliest decision of the Supreme Court dealing with an almost similar question is reported in Lxaxmi Devi Sugar Mills Ltd. v. Nand Kishore Singh 1956 (II) L.L.J. 439 Bhagwati J. speaking for the Bench observed at P.442:
The only question for determination before us is whether the speech made by the respondent at the meeting held on 10 June 1952 was an act subversive of discipline.... The resolution by itself would not have the effect of harming the general manager at all. It would have to be forwarded to the management and the management would take such steps as it may be advised on receipt of the resolution. It would then be for the management to find for itself whether the reasons given for the removal of the general manager were such as to warrant his removal. The management would then, if it thought necessary, institute proper enquiries and come to its own conclusion as to the desirability or otherwise of the removal of the general manager.....The passing of the resolution for the removal of the general manager by itself was not, as already stated, an act subversive of discipline and would not entitle the management to dismiss him and we are of the opinion that, on the record as it stood, the Labour Appellate Tribunal was justified in refusing to the appellant the permission to dismiss the respondent from its employ.
9. Almost the same question came up for consideration before Bhaskaran, Ag. C.J., in a decision reported in Kunhabdulla v. Union of India and Ors. 1984 I L.L.J. 118. A letter to the Editor of a Newspaper containing criticism of the employer was the subject matter for consideration. After referring to the decision of the U.S. Supreme Court reported in Pickering v. Board of Education 20 L. Ed 2d 811, it was held at P. 122 of 1984 I L.L.J. 118 in Para 8 thereof:
It cannot be said that the opinion expressed by the petitioner in Ext. P5 is directed against any particular officer or authority under whom the petitioner had direct employment or relationship or that it was intended to adversely affect the image of the Railway Administration.... Read and understood as a whole, the letter to the Editor, in my view, is aimed at focussing the attention of the Railway administration on the need for providing safety measures to prevent recurrence of accidents and the adverse effect of what he thought to be repressive measures against Railway workmen.... Giving a liberal interpretation to the constitutional right of freedom of speech guaranteed under Article 19(1)(a) of the Constitution, I think the petitioner could not be held to be guilty of charge under Rules (3)(1)(i), 3(1)(iii) and 19(1) of the Conduct Rules.
The decision reported in 1984 I L.L.J. 118 was affirmed in writ appeal No. 783 of 1983. 1985 I L.L.J. 331.
10. In the decision of the U.S. Supreme Court referred to above, termination of servce of a public school teacher on the basis of a letter written to the Editor of a local newspaper criticising the way in which the Board of Education and the Superintendent of Schools had handled past proposals to raise new revenue for the schools came up for consideration. The Board of Education-the employer had held that the publication of the letter was detrimental to the employer and that the interests of the school required the teacher's dismissal. The Circuit Court of Will county, Illinois and the Supreme Court of Illinois upheld the dismissal./But, the United States Supreme Court reversed the State Supreme Court decision holding that 'in a case like this, absent proof of false statements knowingly or recklessly made by him, a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal, from public employment'.
11. The facts of the present case make out that the misconduct alleged against the petitioner involves his freedom of speech and expression as guaranteed by Article 19(1)(a) of the Constitution of India. Freedom of speech is of course not untrammelled by any restrictions. Restrictions can be imposed as provided in Article 19(2) of the Constitution of India. But, if the restrictions are unrelated to considerations under that sub-article, the restrictions may have to yield to the citizen's fundamental right of freedom of speech. The Supreme Court of India had occasion to consider the extent of the right of Government servants and the extent of restrictions thereon in the decisions reported in AIR. 1962 SC. 1166 and AIR. 1963 SC. 312. In the former decision, Rule 4A of the Bihar Government Servant's Conduct Rules, 1956 prohibiting 'any form of demonstrations' for the redress of the grievances of Government servants was held to be violative of the fundamental right guaranteed under Articles 19(1)(a) and (b) of the Constitution of India. It was held that:
Broadly stated, a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one's ideas to others to whom it is intended to be conveyed. It is in effect, therefore, a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech.
It was held that demonstrations which were not disorderly or violent would be protected by the guaranteed freedom of speech, and only such demonstrations as were disorderly or violent could be prohibited in exercise of the power under Article 19(2) of the Constitution of India.
12. In AIR 1963 SC. 312, (supra) the same question was considered in the context of Rule 4-A of the Central Civil Services (Conduct) Rules, 1955. It was held:
It is not disputed that the fundamental rights guaranteed by Article 19 can be claimed by Government servants. Article 33 which confers power on the Parliament to modify the rights in their application to the Armed Forces, clearly brings out the fact that all citizens, including Government servants, are entitled to claim the rights guaranteed by Article 19. Thus, the validity of the impugned rule has to be judged on the basis that the respondent and his co-employees are entitled to form associations or unions. It is clear that Rule 4-B imposes a restriction on this right..Therefore though Rule 4A is partly, and not wholly invalid as held by this Court in the case of Kameshwar Prasad, the particular charge against the respondent being on the basis of that part of the rule which is invalid, it must follow that the departmental proceedings based on that charge are also invalid.
13. The effect of these decisions is that the fundamental right of freedom of speech and expression or association can be restricted only in the interest of public order, morality, decency or other factors mentioned in Clauses (2) and (3) of Article 19(1). Any restriction of freedom of speech and expression which is unrelated to public order, decency, morality etc. has to be struck down as unconstitutional.
14. The High Court of Mysore had occasion to consider the validity of Rule 7(1) of Mysore Government Servants' Conduct Rules, 1957 in so far as it restricted the right of a Government servant to exercise his freedom of speech. The rule prohibited criticism of Government in any manner, Hegde J. as he then was, speaking for the Bench held in AIR. 1966 Mysore 261, with reference to the above two decisions of the Supreme Court that the contention, that the Government servant is not entitled to die constitutional guarantee given to citizens under Article 19(1) of the Constitution cannot be sustained. On an examination of the concerned rule, it was found that-
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.
Dealing with the publication which invited the application of Rule 7 of the rules, which was struck down by the court, it was observed:
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 with any justification that that passage is an indecent one. Whether one could object to the propriety of the statements contained therein or not, it cannot be said that those statements arc 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.
15. In 1973 Lab. I.C. 1534, disciplinary action taken by a bank against one of its employees on the basis of two circulars in which the employee was alleged to have 'made baseless and scurrilous allegations against the management with a view to create prejudice in the minds of the staff in order to bring about disharmony between the management and the staff' came up for consideration, Veeraswami C.J. speaking for the Bench posed the question as follows: 'The whole question is whether die two circulars amounted to subversive activity prejudicial to the interests of the bank', and answered the question: 'A careful reading of each of the circulars leaves us with the impression that that is not the effect. The first respondent's objective in the circulars was to attack Mr. Rao as an official in charge of the staff and to show that if the management had not been misled or misguided by him, the bank would not suffer as it did in the matter of its progress and total deposits'. It was therefore held, that the criticism contained in the two circulars did not amount to subversive activity prejudical to the interests of the bank and therefore did not amount to misconduct.
16. In the present case, Ext. P 4 representation only draws the attention of the Wakf Board to the newspaper reports Exts. P1 to P3, opines that the allegations contained therein require investigation, and requests the Board that such investigation may be got done by the Vigilance Department. Ext. P 4 read as a whole does not contain any reckless or scurrilous attack against the employer, nor any statement which is knowingly false, because it only refers to Exts. P1 to P3 newspaper reports relating to the conduct of the affairs of the Board. Even criticism of an employer by an employee, if the same is couched moderate language, has been held not to amount to misconduct. This is far less a misconduct if the representation contains only a request to conduct an enquiry into the allegations published in newspapers about the manner in which the affairs of a public authority like the Wakf Board were being conducted. In the context of Article 19(1)(a) of the Constitution of India, it is impossible to accept the contention urged on behalf of the respondents, because acceptance of that submission will mean that the employer has an absolute right to impose total prohibition on the fundamental freedoms of the employees. No authority is entitled to treat the exercise of the fundamental right of freedom of speech by a citizen as a misconduct and deal with its employees for the misconduct of the exercise of fundamental freedom of speech and expression, assured by Article 19(1)(a) of the Constitution of India. In that sense also, Ext. P8 in so far as it initiates proceedings against the petitioner for the misconduct of exercise of his right of free speech is unconstitutional and therefore unsustainable.
17. The next question to be considered is whether the order of suspension, Ext. P8, can be sustained in spite of the fact of the principal misconduct alleged against the petitioner, and on the basis of which the petitioner was suspended from service is unsustainable. Ext. P8 is a rambling document. The principal allegation occasioning the suspension of the petitioner, as can be gleaned thereform, is that the submission of Ext. P 4 representation by the petitioner and the manner in which the signatures of other employees were obtained by the petitioner, 'amounted to misconduct, misbehaviour, dereliction of duty, abetment of unrest, creating confusion and chaos in the smooth working of the office and the conspiracy and misleading the junior members of the staff and thereby prompting them to be indifferent in their duties and responsibilities jeopardizing the progress and prosperity of the Wakf Board.' There is of course a statement that the continuance in service of the Board by the petitioner till a final decision is taken on the enquiry 'would definitely cause harm to the day to day administration and also would cause destruction of the evidence and the records in the office, and in the nature and circumstances of this particular case, he would cause quarrels and enmity towards the other members of the staff who tendered their unconditional apology by making them liable for their unnecessary involvement in the matter'.
18. If the submission of Ext. P 4 does not amount to misconduct, the suspension of the petitioner to facilitate the enquiry into such misconduct is unnecessary and cannot be sustained. The question whether even in the absence of the allegation of misconduct in relation to the submission of Ext. P4, on the other remaining allegations, the petitioner would have been kept under suspension cannot and therefore need not be considered by this Court. Nor is it for this Court to substitute its opinion about the comparative weight to be attached to the findings contained in Ext P8. Suffice it to state that Ext. P8 is seemingly largely influenced by the misconduct alleged in the submission of Ext. P4.
19. In this view, the petitioner is entitled to the relief of certiorari to quash Ext. P8 order. Ext. P8 order of suspension is therefore quashed. He is entitled to continue in service as if Ext. P8 order was not passed. He will also be entitled to all benefits including emoluments for the period he was kept under suspension. It is, however, made clear that in relation to allegations, other than misconduct involving the submission of Ext. P 4 representation, the Board is free to take or continue such appropriate action as it deems fit.
The original petition is allowed to the above extent. There will be no order as to costs.