1. The appellant who is the original petitioner is a member of the Indian Administrative Service and from 1973 to 1975 he was Commissioner of Tamil Nadu Archives and Historical Research. It is common knowledge that on 15.8.1973, a time capsule was buried in the precincts of Red Fort which also contained the history of India for the post-independence period telescoped into 10,000 word narrative. The task of compiling this narrative was entrusted to the Indian Council of Historical Research which in turn selected one Prof. Krishnaswami from Madras to write the said narrative which, it appears was ultimately accepted by the Government of India.
2. Admittedly, in the course of his speech delivered on 7th September, 1973, to the students of the Presidency College, Madras on the subject of Indian attitude towards History, the petitioner had made some adverse comments on the nature of the narration. On the basis of this comment, charges were framed against the petitioner under Rules 6 and 7 of the All India Civil Services (Conduct) Rules. These charges were finally dropped by the Government of Tamil Nadu on 28th June, 1977.
3. The necessary Government Order dropping the charges came to be issued in the form of a Government Order on 25th August, 1977.
4. Just a day prior to the Government Order, a report came to be published in the Indian Express, dated 24th August, 1977, under the name of Shastri Ramachandran with the headline 'Officer who exposed time capsule not out of wood'. This report quotes certain remarks said to have been made by the 'Government spokesman'. The relevant part is reproduced as follows:.The Government spokesman charged Mr. Badrinath with trying to 'sabotage' the civil service from within. If he has intellectual inclinations, he is free to go out and carry on his criticism....
When this newspaper report appeared on the 24th, the petitioner wrote to the second respondent who was the then Chief Secretary of the Government of Tamil Nadu and quoting the report, he wrote as follows:.You can imagine how shocked I was to read it. I could hardly believe that such a statement was made by the Government spokesman; for if it was, it is a very serious charge published against an officer...' 'I shall be grateful if you will throw some light on who the Government spokesman is and whether he indeed uttered those words. More important still, kindly let me know whether what is reported to have been said are the views of the Government....
5. By this letter, therefore, the petitioner wanted information as to who was the Government spokesman and whether the words attributed to the said Government spokesman were really uttered by him and further whether those words reflected the views of the Government. On the same day, the second respondent replied to this by a letter addressed to the petitioner saying 'I have no information to communicate to you on this subject,' It is not in dispute that second respondent had written this letter. The petitioner got a confirmation of the news item from the correspondent Of the Indian Express Mr. Shastri Ramachandran on 14th December, 1977 (Annexure C page 79) in which the said correspondent confirmed the report stating-.the Government spokesman whom I spoke to regarding the charges against you (for my report, published in the Indian Express on August 24, 1977) was Mr. V. Karthikeyan, Chief Secretary to the Tamil Nadu Government (respondent 2)....
The correspondent gave details of his talk on 22nd August, 1977, and asserted in the letter that respondent-2 had uttered the words 'Badrinath is trying to sabotage the civil service from within. There are certain other utterances attributed to the second respondent with which we are not concerned. The letter also says that the second respondent is reported to have told pressmen, in private at the Secretariat, that he did say all that was reported in the Indian Express and further stated 'the Indian Express report has got me into hot water. I am in trouble with the Government. And I don't want to talk to the press.
6. Even before the petitioner secured this letter from the Press correspondent, he addressed a letter, dated 5th December, 1977, to the second respondent with a request that the said letter be placed before the Chief Minister. Several grievances were made in that letter. We are, however, concerned only with the grievance with regard to what the petitioner styled as defamatory attack on him by respondent 2. In paragraph 24 of this letter, apart from the other requests which the petitioner wanted the Government to consider, the last request was 'to issue a statement, to be published in all editions of the Indian Express, that the Government did not authorise anybody to make the charge against him which was attributed to 'the Government spokesman' in the report published in the Indian Express dated 24th August, 1977.' On 19th December, 1977, the petitioner addressed another letter to respondent 2 stating that he would like to represent to the Chief Minister personally the matters set out in his representation to the Government, dated 5th December, 1977, and that he may be permitted to do so. With this letter, he enclosed a Tamil summary of his letter dated 5th December, 1977, and requested respondent 2 to be so kind as to place it before him as early as possible. The grievance of the petitioner is that these two letters have never been replied to.
7. The petitioner then addressed a letter to the second respondent in which he requested for sanction of the Government under Rule 7 of the All India Civil Services (Conduct) Rules, 1968 (hereinafter referred to as the 'Rules') to sue Thiru V. Karthikeyan, for defamation. In this letter once again the statement which was published in the issue of the Indian Express dated 24th August, 1977, and the other relevant facts were disclosed. It was also stated in the same letter that 'Thiru Ramachandran confirmed to me that 'Thiru Karthikeyan has indeed uttered these words in an interview that he gave to the correspondent.' In that letter, the petitioner pointed out that respondent 2 was aware that his imputation did not reflect the views of the Government; nor was he authorised to make any such allegation against the petitioner. The petitioner has stated that it appeared that the letter, dated 25th August, 1977, was not placed before the Government.
8. The petitioner not having received any reply to this letter requesting for sanction, he sent a reminder on 1st February, 1978 (Annexure C page 107) addressed to the second respondent stating therein that the Limitation Act specified a period of one year in the case of defamation within which one could move a court of law, and he was, therefore, requesting the Government to give him immediate sanction, if possible within a week, so that he may take such action as advised against the second respondent. The petitioner then received a communication under the signature of the Second Secretary' to Government, rejecting his request for sanction to sue the second respondent. Since it is this communication which is sought to be quashed, we reproduce it in detail:.Thiru Badrinath, I.A.S. Secretary, Board of Revenue has requested permission of the Government under Rule 17 of the All India Service (Conduct) Rules, 1968, to sue Thiru V. Karthikeyan, I.A.S. Chief Secretary to Government of Tamil Nadu in connection with certain alleged statements which appeared in the 'Indian Express' dated 24th August, 1977. The Government have carefully considered his request; and are of the view that there is no basis for granting such permission. Accordingly, the permission applied for by Thiru Badrinath I.A.S. Secretary, Board of Revenue (FP) is refused.
9. The petitioner then filed the petition under Article 226 of the Constitution of India, in which the relief sought was the quashing of the order of the first respondent Government of Tamil Nadu, dated 7th February, 1978, and the issue of a Mandamus to direct the first respondent to grant to the petitioner sanction under Rule 17 of the Rules to institute a suit against the second respondent for damages for defamation.
10. In the writ petition, all the facts which have been recited above were set out. An affidavit was filed on behalf of the Government of Tamil Nadu controverting the stand taken by the petitioner. The Government took the stand that it applied its mind to all the material facts before passing the orders and it was denied that any prim a fade case had been made on the facts and materials in the case. According to the Government, the petitioner did not appear to realise that while he claims to have a right to vindicate himself, Government was also under a duty in exercise of its powers under the rule, to protect officers from unnecessary harassment through vexatious court proceedings. The stand of the Government appears to be that the proceedings which the petitioner wanted to initiate in the form of a suit would be of a vexatious character.
11. Respondent 2 also filed an affidavit in the petition in which he took the stand that there was no interview with the correspondent face to face and that he did not remember the exact words used by him, but he had no motive or desire or intention to say anything calculated to damage the reputation of the. petitioner nor did he use any such words which would damage his reputation. In paragraph 4 of the affidavit, he makes a statement that 'I certainly do not remember to have used the words ascribed to me in the news report, and- now complained of as amounting to a. defamatory imputation'. He further avers that whatever few words he said were only from the service point of view and were made in good faith in the discharge of official duties by way of explaining the rationale behind disciplinary action taken against the petitioner under the All India Civil Services (Conduct) Rules, 1968. He pleaded good faith when he made the remarks to Shastri Ramachandran and stated that as Chief Secretary to Government, he was the head of Civil Services and whatever remarks were made by him in telephonic conversation with Thiru Ramachandran were only by way of sustaining the action taken by the Government and had absolutely no personal angle. With reference to his one line letter, dated 25th August, 1977, he stated that it implied that the Government had no information to communicate to the petitioner and that the expression 'I have no information to communicate to you on this subject' was used to convey the impression that he, as Chief Secretary to Government and acting on behalf of the Government had no information to communicate on the subject. The telephonic conversation with the correspondent was said to be only a casual conversation and according to him, since the letter of the petitioner did not indicate who the Government spokesman was, according to the second respondent, he was under no obligation to disclose what he had conversed over the telephone with Thiru Ramachandran. The letter was sought to be justified by stating that the petitioner's letter had not used the word 'you' and the petitioner had not alleged in his letter that he was the Government spokesman. The second respondent alleged that the letter from the petitioner did not give any hint that the petitioner was thinking of second respondent as the Government spokesman. He reiterated that he did not remember to have used any words or language which would damage the reputation of the petitioner or lower his standing in the eyes of others.
12. When the matter was heard by the learned Judge, the validity of Rule 17 was challenged which contention was negatived and that argument is not now advanced before us. The learned Judge recorded a finding that the act which made the Government spokesman charge the petitioner as trying to sabotage the civil service from within was an official act. Indeed, before the learned Judge, the learned Advocate General has conceded that the act complained of was an official act, and therefore, the intended- suit was to vindicate an official act which was the subject-matter of a defamatory criticism. The learned Judge found in favour of the petitioner that it could not be said with certainty that there was no prim a fade' case for a decision by a civil court on the question whether the remarks attributed to the second respondent were defamatory in character. Indeed, the learned Judge proceeded to decide the petition on the assumption that the remarks were defamatory. The learned Judge held in favour of the petitioner that in the exercise of its powers under Article 226 of the Constitution, the, High Court could scrutinise the validity of the order of the State Government refusing sanction. The learned Judge after referring to the files which were produced before him took the view that though the Government order does not specifically refer to the non-; admission of the statement by the second respondent, they were aware of the same, and, therefore, when the Government order referred to 'no basis' it was apparent that the Government was not willing to accept that the quoted press statement was made by the second respondent in the form in which it appeared. What seems to have weighed with the learned Judge when rejecting the petition was that the second respondent denied having uttered the exact words used in the press report, and he goes on to hold that the copy of the letter of Ramachandran, dated 14th December, 1977, was neither sent to the second respondent nor to the Government, the Government had called for the remarks from the second respondent on the allegations of the petitioner and though the order of the Government was cryptic, the use of the words 'no basis' in the light of the counter affidavits filed by the first and second! respondents, would show that the Government had taken into account the fact that the second respondent had not accepted having uttered the exact words used in the press report. A contention seems to have been advanced before the learned Judge that the order of the State Government was vitiated by violation of the principles of natural justice, since the petitioner was not informed of the remarks of the second respondent. This contention was rejected. The argument that the order of the Government was vitiated by mala fides' was also rejected. This order of the learned Judge is now challenged in this appeal.
13. The appellant who appears in person before us has contended that the denial of the second respondent was factually wrong and the Government instead of rejecting the application for sanction should have pulled up the Chief Secretary and asked him under what authority he had made the statements. He argued that the stand of the Government that there would be harassment of an officer through vexatious proceedings was not justified because the petitioner was entitled to have his honour vindicated and the view taken by the Government has the effect of depriving him of the valuable civil rights because, as he put it, the higher the status, the greater was the accountability, and since there was prim a facie material to show that it was the second respondent Who made the statement, the order of the Government has the effect of shielding the second respondent from the consequences of his misdemeanour. He also contended that the only other ground that the Government did not want a feud between two members of the Civil Service to take place in public was not justified, because Rule 17 of the Rules did contemplate that, where defamatory remarks were made by anybody against a Government servant, then he had the right to take necessary steps in a court of law.
14. The learned Advocate General who appeared for the first respondent, State Government, and Mr. Desabandhu who appeared for respondent 2, argued that the Government had taken into consideration all the relevant materials and if they have bona fide reached a conclusion that sanction cannot be granted, the order of the Government should not be interfered with. It is argued by the learned Advocate General that respondent 2 had denied that he ever made the statement which was attributed to him and if it is now sought to be urged on the basis of a writing given by Mr. Ramachandran, that there is evidence to show that respondent 2 had uttered the alleged defamatory remarks, then fault could not be found with the order of the State Government, because Mr. Ramachandran's letter was not placed before the State Government. The learned Advocate General however, argued that if this Court was of the view that the order of the Government could not be sustained, then the matter must be remitted back to the Government for a fresh consideration and this Court could not in the exercise of its jurisdiction under Article 226 of the Constitution perform the function which properly belonged to the State Government under Rule 17 of the Rules.
15. Rule 17 of the Rules together with its Explanation reads as follows:.No member of the Service shall except with the previous sanction of the Government have recourse to any court or to the press for the vindication of any official act which has been the subject-matter of adverse criticism or attack of a defamatory character.
Explanation: Nothing in this rule shall be deemed to prohibit a member of the Service from vindicating his private character or any act done by him in; his private capacity, provided that he shall submit a report to the Government regarding such action.
16. It is implicit in Rule 17 that a Government servant has a right to have recourse to a court of law, for vindication of an official act in respect of which some adverse criticism has been made or attack of a defamatory character has been' made. For vindicating the private character of a Government servant, or any act done by him in his private capacity, the constraint placed by the main part of Rule 17 that the Government servant shall not have recourse to the court without the previous sanction of the Government is not there. As already pointed out, the learned Judge has proceeded on the assumption, and indeed the learned Advocate General has also conceded before the learned Judge and this concession has not been withdrawn before us, that the act in respect of which the alleged defamatory remark has been made is an official act. The learned Judge has also found that the alleged remark in the press report is defamatory in character. None of these two findings is challenged before us on behalf of the respondents. We must, therefore, proceed on the footing that the remark made and published in the Indian Express, dated 24th August, 1977, that Mr. Badrinath was trying to sabotage the civil service from within, is a defamatory remark. Indeed, when such a remark is made in respect of some conduct or official act of a member of Indian Administrative Service, not much argument is necessary to show that the remark is of defamatory character.
17. The only question which, therefore, survives for consideration in this appeal is, whether the order of the State Government refusing to give sanction is open to interference by this Court? When rule 17 refers to the previous sanction of the Government, it vests discretion in the State Government to grant or to refuse the sanction. When the Government decides the question as to whether sanction as contemplated by Rule 17 should be granted or not, the scope of the enquiry before the Government must necessarily be whether the person who seeks the sanction of the Government has made out a prim a fade case for getting the sanction of the Government in respect of the action which the Government servant proposes to take. While deciding whether the concerned Government servant has made out a prima fade case, the Government is bound to apply, its mind to all the relevant circumstances which will enable the Government to come to a proper conclusion as to whether the concerned Government servant had made out a prima facie case. The Government is not called upon to decide the merits of the case which is sought to be instituted in civil court by the petitioner. Ail that the Government was concerned in this case was, whether the petitioner prim a fade is able to satisfy the Government that respondent 2 had made the remarks which have appeared in the press and which were admittedly of a defamatory character.
18. This question could not be decided merely on the denial of the person who is sought to be sued and for suing whom the permission of the Government was sought. No person who is facing the possibility of a suit or criminal prosecution in respect of which permission is sought under Rule 17 will ever admit that he has committed the act in respect of which the Government servant is seeking to sue him. While undoubtedly the Government may consider the version as given by the opposite party, the decision of the Government cannot be based only on what the proposed defendant in the suit has to say about the claim of the plaintiff. While deciding the question of sanction, the State Government has to weigh the defamatory allegations made against the proposed defendant, and has to arrive at a fair decision as to whether the plaintiff has a prim a fade case which he is entitled to agitate in the civil court as in the instant case. The ground that a person will be faced with harassment because he will have to go through a litigation, is by itself not sufficient to reject the sanction, because if there is a prim a fade case, then the consequent harassment which is likely to be caused cannot be a determinative factor as to whether the necessary sanction should be granted by the Government or not. Whet to of prime importance, therefore, is whether a prim a facto case has been made out.
19. The order of the Government shows that it has taken this view that it has no basis for granting the permission, as sought. The necessary file containing the remarks of the second respondent en the letter for sanction, dated 28th December, 1977, was produced before the learned Judge. A grievance was made before us that those records were not shown to the petitioner and the learned Judge was not, therefore, entitled to take those records into consideration for holding that respondent 2 had denied that he had made any statement as alleged. Since this grievance was justified, and in all fairness the learned Advocate-General did not claim any privilege in respect of the said records, the records containing the nothings consisting of the remarks of respondent-2, the opinion of the Law Secretary and the noting made under the signature of the Chief Minister were shown to the petitioner, and, therefore, the grievance that the denial should not be considered by this Court does not now survive.
20. On the face of it, the letter dated 7th February, 1978, written by the Government, under the signature of the Second Secretary does not give any reasons apart from saying that 'there is no basis for granting such permission'. We were, therefore, required to turn to the averments made by the Second Secretary, and the Second Secretary has stated in the affidavit that the Government has acted in a just and reasonable manner, having regard to the facts of the case. This hardly takes the matter any further. Indeed, the affidavit appears to be so vague that it is difficult to ascertain from the affidavit what were the facts which were considered by the State Government when the Government took the view that the sanction should be rejected. It is not enough for the Slate Government to say that relevant considerations have been taken Into account and the Government had applied its mind to the material facts before passing orders. When the question regarding the validity of the refusal to sanction, is itself in issue, the decision of that question must necessarily turn on whether relevant or irrelevant and what ware the material facts which were taken into account. The Government was, therefore, (sic) to disclose in the affidavit what were the relevant consideration and what were the relevant faces which it had taken into account. As a matter of fact, the justification for the refusal of sanction on the denial of respondent-2 was one found by the learned Judge only en the records. Indeed, there is no clear statement in the affidavit that the rejection of the sanction was based on the denial by respondent-2. If the Second Secretary had not found it necessary to rely on the denial of respondent-2, in the office noting, as being a ground on which the communication, dated 7th February, 1978, could be supported, it is not for the court to find support for the refusal of the sanction in the denial of respondent-2. If there is anything more apparent on this affidavit, it is that it suffers from extreme vagueness and reluctance to explain what were the circumstances and facts which were considered by the State Government. When we go to the affidavit of respondent-2, which has been read to us by Mr. Desabandhu, things seem to become worse for the Government. Respondent-2 has remained satisfied with saying that he does not remember what conversation he had with the correspondent of the Indian Express. But at the same time he says that he does not remember to have used the words ascribed to him in the news report and now complained of as amounting to a defamatory imputation. In the affidavit it is admitted that respondent-2 had conversation with the correspondent on the telephone. In that conversation, the petitioner's name was discussed and respondent 2 positively holds back information as to what exact conversation took place about his remarks about the time capsule. A link is, therefore, clearly established at least, prim a facie with case news item which appeared on 24th August, 1977 and respondent 2. In the letter in which the petitioner asked for sanction, the petitioner had also stated that he had secured confirmation from Mr. Ramachandra that it was respondent-2, who had uttered those words. There was, therefore, a case which was put before the Government in the letter, dated 28th December, 1977 that the person under whose name the report appeared in which the said defamatory remarks were reproduced, had also confirmed to the petitioner that it was respondent-2, who had uttered those words. There is nothing in the affidavit to show that the Government had applied its mind to these circumstances. If the Government so chose, it could have called upon the petitioner to produce the confirmation. But such a statement made by a responsible officer of the Government could not be rejected outright. Indeed, there is nothing to show that it was rejected. The nature of the consideration which this letter has received is apparent from the office note which appears on record and of which a translation has been given to us. The file contains an opinion of the Law Secretary and in the final note which is put up, the following appears--
Whatever it might be, it is unnecessary to file a case like this even after the Chief Secretary to Government had written a letter explaining the correct position.
Admittedly, respondent-2 has not written any letter to the Government. In order to be sure that this translation which is given to us by the learned Advocate General was correct, we asked him again : whether this was a correct translation j and he did not dispute the translation. The records of the Government, therefore, show that what weighed with the Government was that the Chief Secretary to the Government had written a letter explaining the correct position. Admittedly, there is no such letter. If there is anything in the file, it is in the form of a note made by the Chief Secretary, namely, respondent-2 himself, denying that he ever said what was attributed to him. When the note said that there is no basis to file a case, it is obvious that this was based only on what was understood to be the explanation of the 'correct position', according to respondent-2.
21. If we read the return filed by the fi(sic) respondent justifying the order of rejection of permission, there the stand taken in the return is that 'the words ascribed to the second respondent will net amount to defamation in the circumstances of the case. 'Apart from the finding the learned judge had recorded, it 'is difficult to accept as a proposition of law that, when. somebody is charged with sabotage, it is not defamatory of the person so charged. 'Saboteur' is described in the dictionary as one who commits sabotage and the meaning of sabotage given in the Concise Oxford Dictionary is 'malicious or wanton destruction...commit sabotage on; destroy, render useless....' The concept of sabotage implies clearly an evil intention to destory something and considering the fact that the charge of sabotage is made, it is obvious that when such a charge is made, the person charged is obviously alleged to have evil intentions of destroying something.' We are, therefore, surprised that the State Government has taken the stand that the words attributed to the second respondent will not amount to defamation. The qualifying words 'in the circumstances of the case' do not improve matters. What these circumstances are, have not been explained anywhere and all that is available on record is that the circumstances of the case were that the petitioner had made some statements, which according to him, were justified and these statements were styled as intended by the petitioner to sabotage the services. The least that can be said about the view which the State Government has canvassed in the affidavit is that, it is an extremely unreasonable and wholly untenable view. If this was the consideration which the State Government had in mind when they rejected the application of the petitioner, it is obvious that the conclusion that the State Government did not think it proper to grant permission itself would become wholly unreasonable.
22. In paragraph 23 of the return, the State Government has taken the stand that the petitioner does not appear to realise that while he claims to have a right to vindicate himself, Government is also under a duty in exercise of its powers under the rule, to protect officers from unnecessary harassment through vexatious court proceedings. While it cannot be disputed that the Government has a duty towards its officers to protect them from unnecessary harassment through vexatious proceedings, this protection can be given only where the proceedings are likely to be vexatious which alone will result in harassment. If the proceeding intended to be taken by a Government servant is to vindicate his reputation which is sullied by a charge that he is sabotaging the services and a prim a facie case is made out by the said officer, then the proposed proceedings cannot become vexatious. The real question which fell for consideration before the State Government was, whether there was prima facie material to show that respondent-2 made the statement which was clearly defamatory. If the statements imputed to respondent-2 were per se defamatory, then the only ground on which the permission could have been refused to the petitioner would be that there was prima facie no material to show that respondent-2 had made such a statement. If he had made a statement, the proceedings would not become vexatious. As already pointed out, the State Government has merely gone by the denial of respondent-2, which, however, looks infirm in the face of the stand which respondent-2 himself has taken in the affidavit which is filed in this Court. It is rather surprising that having admitted that respondent-2 had some conversation with the correspondent of the Indian Express and which obviously referred to the petitioner, respondent No. 2 thought it fit to give only a one line reply that respondent-2 had no information to communicate to the petitioner on the subject. This was sought to be justified by respondent-2 in the affidavit in paragraph 10 by stating that the petitioner had not indicated who the Government spokesman was. This stand ignores the contents of the letter addressed by the petitioner on the very next day, on which the news item appeared enquiring as to who the Government spokesman was. It is not the case either of respondent-1 or respondent-2 in their affidavits, that apart from the respondent-2, any other person had any conversation with the correspondent of the newspaper, with regard to the remarks or the stand taken by the petitioner in respect of the time capsule on the 24th August, 1977, or at any time earlier. As a matter of fact, respondent No. 2 admits that he had talked to the correspondent but his only case is, he does not remember what he said. This itself cannot rule out the possibility of respondent No. 2 having said what is attributed to him. It is, therefore, difficult to appreciate the stand taken by the second respondent that he was under no obligation to disclose what he had conversed over the telephone with Mr. Ramachandran especially when the petitioner wanted to ascertain who had made the adverse remarks against him. It is also surprising that;, even till this day, neither respondent 2, nor respondent-1 has come out with a clear case that they have tried to make any enquiries as to who the Government spokesman was nor have they taken any definite stand that the Government spokesman referred to in the news item, was not respondent 2. As it now transpires, it is difficult to appreciate the stand which is taken by respondent 2, that there was no duty case on him on receiving the petitioner's letter to investigate the matter, particularly with reference to a press item. Respondent 2 was at the material time Chief Secretary of the Government of Tamil Nadu and if any news item containing what purported to be the view of the State Government appears, in our view, it was obligatory on the State Government as well as on respondent-2, to ascertain from the newspaper management itself as to who was the Government spokesman. A Government spokesman always speaks for the Government and it would be extremely undesirable for any views to be published for public consumption as those of the Government, if the Government did not really hold those views or had not permitted the Government spokesman to make any statement. It is also, therefore, difficult to appreciate the stand taken in paragraph 13 of the return of respondent 2 where he states:.In as much as the news item did not contain the name of the Government spokesman and did not refer to me specifically, the question of my issuing a denial to the Indian Express did not arise....
In the same paragraph, respondent-2 has as a matter of fact, admitted--.some days before 25th August, 1977, Thiru Shastri Ramachandran phoned me up and asked about Thiru Badrinath's time capsule case. I said it was a disciplinary case pending....
Therefore, a part of the news item which has appeared under the name of Mr. Ramachandran is obviously referable to the conversation which he had with respondent 2 and we are not prepared in this case to accept the half-hearted statement of respondent-2 that he does not remember what he spoke about the petitioner but he remembers that he did not make use of any damaging statement.
23. The present case, in our view, appears to be one in which a serious charge had been made against the petitioner of sabotaging the services, and he is entitled to vindicate his honour. The view which the State Government has taken that on a consideration of the materials and circumstances of the case, the State Government has decided to decline the permission is, in our view, wholly unwarranted and indeed a conclusion which no reasonable person would reach.
24. Though an argument was advanced before us by the learned Advocate General that Ramachandran's letter was not forwarded along with the letter for permission, the return of the State Government nowhere sets out this as a ground for rejecting the permission. It would have been a different matter if the State Government had taken a stand that if this letter was placed before the State Government along with the letter for permission, they would have considered the impact of the letter and may have reached a different conclusion. Raising this point merely at the stage of arguments does not cure the infirmity which appears from the stand taken in the affidavit. After giving our anxious consideration to the questions involved in this matter, we are satisfied that the only way in which the petitioner can have his honour vindicated is to take the matter to the court, where the, controversy, can be properly thrashed out.
25. We are unable to see how the refusal to grant permission is sought to be justified on the ground that public interest demands that an officer 61 the Government must inspire confidence not only among his fellow officers but also among the members of the public If an officer is dubbed as one who has sabotaged the services, he must be regarded as one who is disloyal to the services and the public would also not trust such an officer, who is bound to lose his credibility. Even on the ground of public interest, we think the petitioner appellant is entitled to have the sanction contemplated by Rule 17. Accordingly, we set aside the judgment of the learned Judge and quash the letter, dated 7th February, 1978.
26. When we indicated that we are inclined to quash the Government's letter, dated 7th February, 1978, the learned Advocate General very vehemently contended that the only proper order which can be passed is that the matter should go back to the State Government for reconsideration, because, according to the learned Advocate General the power under Rule 17 has been vested in the State Government, and if this Court grants permission, it will be performing the function which properly belongs to the State Government. It is not possible to accept this argument. The petitioner has been fighting this litigation for almost six years. We have indicated how the State Government's consideration of his letter of request for permission under Rule 17 has been vitiated, and we do not think that we will be exceeding our jurisdiction under Article 226 if we issue a Mandamus to the State Government to grant the appellant the necessary sanction as required by Rule 17. The refusal of the State Government to grant the sanction under Rule 17 must be considered as wrongful, and a wrongful refusal to exercise its discretion must be considered as a breach of duty which can be redressable by an order of Mandamus - (See Judicial Review of Administrative Action by De Smith, 4th Edn., page 534). Accordingly, a Mandamus will issue to the State Government directing it to grant sanction to the petitioner-appellant to have recourse to a Court of law to file a civil suit as he has asked. This shall be done by the State Government within a period of one month from today. No costs.
27. This order is dictated in the presence of the Government Advocate and we expect him to communicate our decision to the State Government. A steno copy of the judgment will be made available to the State Government immediately after it is signed.