1. The petitioner was appointed as a clerk in the Central Telegraph Office sometime in May 1944. He was made permanent in June 1948. There is no written contract of service. In February, 1944, the petitioner had been selected as a candidate for the post and he was required to undergo training without allowance. He joined the department for the purpose of training on or about 4-3-1944 and on that date he signed a declaration to the following effect : 'I do hereby declare that I have read the Government Servants' Conduct Rules and thoroughly understood them.'
2. It appears that the petitioner interested himself in trade union activities. Some time in 1949, a printed handbill was issued under the signature of six persons including that of the petitioner who is shown therein as the Secretary of the Telegraphic branch of the Union of Posts and Telegraph Workers.
This handbill, or the 'leaflet' as it has been called, is in the Bengali, language and calls upon the Posts & Telegraph Workers to observe 13-8-1949 as Unity Day for the Posts & Telegraph workers. The leaflet proceeds to state that the authorities were victimising workers, because of trade-union activities and exhorted them to form committees of resistance to carry on the workers' struggle against such action. The leaflet contains averments of police excess and departmental highhandedness.
A great deal has been made of the Bengali words 'Sangram Committee'. The authorities insist on translating it as 'War Council' whereas, according to the petitioner, it meant 'Council of Action'. It is pointed out that the word 'sangram' has not been used in the sense of physical force or military action but legitimate struggle on the lines of trade-union activities.
3. On 5-7-1950 the petitioner was served with a notice under Rule 3, Civil Services (Safeguarding of National Security) Rules, 1949, issued by the Post Master General, Western Circle. It was stated in the notice that in the opinion of the 'competent authority' (as defined by the said Rules), the petitioner was reasonably suspected to be a member of the Communist Party of India and his loyalty to the State was gravely doubted.
Reference was then made to the Bengali leaflet mentioned above, printed at the Venus Printing Works, Bowbazar, and issued from P 33, Mission Row. It was stated that the leaflet was distributed at the meeting of the U. P. T. W. held in Wellington Square on 1-8-1949. It charged the petitioner with being liable to compulsory retirement from service under Rule 3, and he was called upon to show cause why he should not be compelled to do so. The petitioner was required to proceed on leave with effect from the date of the notice.
4. It appears that some proceedings were taken in pursuance of the notice and the petitioner actually appeared before the authorities and was heard. On May (sic) 1951, the Chief Superintendent, Central Telegraph Office, Calcutta served another notice upon the petitioner.
This was in the form of a charge-sheet in which, after referring to the leaflet mentioned above, the following charge was framed : 'Publishing a most objectional leaflet as one of the joint authors in contravention of Rule 20(1) of the Government Servants' Conduct Rules.
He is directed to show cause why he should not be dismissed from Government service it the charge referred against him is established.. He should also state if he desires to be heard in person.'
5. On 8-6-1951, the respondent served a notice on the petitioner stating that as departmental proceedings had been instituted against him under C. S. (C. C. A.) Rules and he had been served with a charge-sheet, he need not remain on leave, and was given the option to resume duty. The petitioner resumed duty on 12-6-1951, but he say that within five minutes of his rejoining duty, he was served with a letter of suspension.
This letter is, however, dated 11-6-1951 and states as follows :
'As he is charged with an offence of a nature which, if proved against him, would ordinarily result in his dismissal, he is hereby placed under suspension with effect from the forenoon of date until further orders.'
6. The petitioner upon receiving the charge-sheet, took up the position that regard being had to the proceedings instituted by the Post Master General, West Bengal, no fresh charges could be brought on the same cause of action, and while it was 'sub judice'.
He next took up the position that the order of resumption of duty amounted to exoneration from the charges and so no further proceedings should be taken.
Finally, he took up the position that two simultaneous proceedings could not be levelled against him.
7. On 3-3-1952, the respondent after considering the charge and explanations given thereto, arrived at the opinion that the charge had been fully established. He passed an order dismissing the petitioner from Government service with effect from 3-3-1952.
This Rule was issued on 25-8-1952 directing the respondent to show cause why a Writ in the nature of Mandamus should not be issued commanding the respondent to withdraw the notice dated 3-3-1952 and from forbearing to remove the petitioner from the post of a clerk in the Central Telegraph Office, Calcutta.
8. In view of the constitutional point taken, it is not necessary for me to go into the merits of the matter. The first point taken on behalf of the petitioner is that Rule 20(1), Government Servants' Cork-duct Rules 1926 is ultra vires and void as infringing the fundamental rights conferred upon the petitioner by Article 19(1)(a) of the Constitution.
Before I proceed to deal with this point, it is accessary to set out that rule:
'Criticism of Government and Publication ofinformation or opinion upon matters relating toforeign countries:
(1) No Government servant shall, in any document published under his own name or in any public 'utterance delivered by him, make any statement of fact or opinion which is capable of embarrassing
(a) the relation between Government and the people of India or any section thereof or
(b) the relation between His Majesty's Government or the Governor-General in Council and any foreign country or the Ruler of any State in India.'
This rule was framed under powers conferred by Sub-section (2) of Section 96, Government of India Act 1919.
9. It is not denied that this is an 'existing law' and was in operation at the time the Constitution came into being. According to Article 19(1)(a) of the Constitution, all citizens shall have the right to freedom of speech and expression. Clause (2) of Article 19 has, however, been amended by the Constitution First Amendment Act 1951, Section 3(1)(a). Before the amendment it stood as follows: 'Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law in so far as it relates to or prevent the State from making any law relating to, libel,' slander, defamation contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.'
10. It has now been substituted by the following:
'Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with the foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence'.
11. It will be observed that before the amendment, an existing law or a law that was promulgated after the Constitution came into being, was saved if it came within the headings mentioned therein. If it did not come within the headings, then it would not be saved. If it did come within the headings, then there was an absolute exemption, and no question arose as to its reasonableness.
In the substituted sub-clause, the headings have been somewhat altered, but there is an important qualification introduced for the first time, namely, that the laws which are to be exempted must not only come under the specified headings but must also constitute a reasonable restriction on the exercise of the rights conferred by Article 19(1)(a).
12. Therefore, the point to be decided is as to whether Rule 20(1), Government Servants' Conduct Rules comes within the headings specified in the substituted Clause (2) of Article 19, and whether the restrictions imposed are reasonable restrictions.
13. That the rule in question comes within the headings specified In Sub-clause (2) of Article 19 has not been disputed. It is certainly in the interests of the security of the State and public order that the relationship between Government and the people, as also between the Government and a foreign country should be harmonious.
The point, however, that has been taken is that the restrictions imposed by the rule are not reasonable because the wording used are so vague & uncertain that a citizen has no means of knowing what the restrictions are and where they should attach. According to the impugned rule, a Government servant can neither publish any document nor make any public utterance, wherein he makes a statement of fact or opinion which is 'capable of embarrassing' the relationship between Government and its people or any section thereof, or its relation with any foreign country or with the Ruler of a State.
The word 'embarrass' has a wide discretionary meaning; it may mean any of the following;
'To confuse, fluster, disconcert, abash, deprive of freedom of movement, involve in difficulties, hamper, impede, obstruct, render difficult, complicate, hinder, perplex.'
14. In fact, anything imaginable could be squeezed into the meaning or significance of these words. Government in the abstract cannot, of course, be embarrassed. It is those who run the Government and its hierarchy of officials that are susceptible to feelings of embarrassment. But who can say with certainty as to what will embarrass a given person in a given situation, when there is no indication in the rule as to what does or does not constitute a reasonable ground of such embarrassment? There will be certain things which, everybody knows, will embarrass the relationship of the Government and its people. An exhortation, for example, to rise in armed rebellion and upset the established Government of the land is obviously of a nature which necessarily embarrasses the relationship of a Government and its people.
There might be borderline cases where no such embarrassment need be caused, if the matter is looked at rationally and without prejudice. But an unduly sensitive official may take it into his head that embarrassment has been caused by the most innocent expression of opinion, upon what may even be a matter of great public importance.
15. The pith and substance of this particular fundamental right is that in a free democratic country every citizen should be capable of speaking out what he thinks. Such freedom of speech and expression promotes diversity of ideas and programmes so that they may reach the mind of one another, resulting in the exposure of falsehood through the process of education and discussion. It is through such channels that Government remains responsible to the will of the people and peaceful change is effected. -- '(Thornhill v. State of Alabama', 84 Law Ed 1093) (A); 'Terminiello v. Chicago', 93 Law Ed 1131 (B).
This has been expressed by Douglas J. as follows in -- 'Terminiello v. Chicago', (B) (supra):
'The right to speak freely and to promote diversity of ideas and programme is, therefore, one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly, the function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and pre-conceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech though not absolute is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, anger and annoyance. There is ho room under our Constitution for a more restrictive view, for the alternative would lead to standardization of ideas either by legislatures, courts or dominant political or community groups'.
16. There can be no doubt that the relationship of employer and employee existing between the Government and those employed by it, calls for the observance of certain basic rues of conduct and decorum. For example, it would be reasonable to prohibit Government servants from preaching the cult of violence or subversive activities. The question, however, is, as to where the line should be drawn. It is not within the scope of this judgment to lay down rules for that purpose.
It is sufficient to consider one aspect of the matter which renders this particular rule open to challenge. Such a restriction must not be vague or uncertain. If it is so vague and uncertain that a citizen does not know what the scope of the restriction is, or might be, the inevitable result is either to take away the right altogether or render it impossible of compliance.
This aspect of the matter has been well brought out in certain American cases. In -- 'State v. Diamond', 20 ALR 152 (C), a statute made punishable
'any act of any kind whatsoever which has for its purpose or aim the destruction of organized Government, federal, state or municipal, or to do or cause to be done any act which is antagonistic to or in opposition to such organised government; or incite or attempt to incite rebellion or opposition to such organised government.'
The Court said
'Under its terms, no distinction is made between a man who advocates a challenge in the form of our Government by constitutional means, or advocates the abandonment of organised government by peaceful methods, and the man who advocates the overthrow of government by armed rebellion or other form of force or violence ......where the statute used words of no determinative meaning, or the language is so general and indefinite as to embrace not only acts commonly recognised as reprehensive but also others which it is unreasonable to presume were intended to be made criminal, it will be declared void lor uncertainty.'
The provision in the statute quoted above, was.held void.
In -- 'State v. Klapprott', 127 NJL 395 (D),a Statute read as follows: 'Any person who shall in the presence of two or more persons in any language, make or utter any speech, statement or declaration, which in any way incites, counsels, promotes, or advocates hatred, abuse, violence or hostility against any group or groups of persons residing or living in this State by reason of race, colour, religion or manner of worship, shall be guilty of mis-demeanour.'
The Court said:
'It is our view that the statute, supra, by punitive sanction, tends to restrict what one may say lest by one's utterances there be incited or advocated hatred, hostility or violence against a group 'by reason of race, colour, religion or manner of worship'. But additionally and looking now to strict statutory construction, is the statute definite, clear and precise so as to be free from the constitutional infirmity of tile vague and indefinite? That the terms 'hatred' 'abuse', 'hostility', are abstract and indefinite admits of no contradiction. When do they arise? It is to be left to a jury to conclude beyond reasonable doubt when the emotion of hatred or hostility is aroused in the mind of the listener as a result of what a speaker has said? Nothing in our criminal law can be invoked to justify so wide a discretion.'
A similar view was expressed in -- 'Winters v. New York', (1948) 333 US 507 (E). The State of New York made it an offence to publish or distribute a publication
- 'Principally made up of criminal news, police reports or accounts of criminal deeds or pictures or stories of deeds of bloodshed, lust or crime.'
This statute was held to be invalid as it did not set up a sufficiently definite standard of conduct. Reed J. delivering the majority Judgment said that it did not seem to Court that an honest distributor of publications could know when he might be held to have Ignored such a prohibition.
The learned Judges agreed to what was said in -- 'United State v. Cohen Grocery Co's case', (1921) 255 US 81 (P),
'that it left open the widest conceivable enquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against.'
17. If of course, the words used have a well-understood meaning in their daily use, they may come within the limits of permissible uncertainty in statutes. For example, the word 'obscene' or 'lewd' is well understood and a statute supressing 'obscenity' or 'lewdness' would not necessarily be void for uncertainty. -- '(Kovaces v. Cooper', (1949) 93 Law Ed 513 (G).
18. In my opinion, It is entirely vague and uncertain to say that a government servant cannot say anything or write anything which is 'capable of embarrassing' the relation of the Government and its people or of the Government and a foreigncountry or the Ruler of a state. The words used have no determinative meaning. The language is so general and indefinite that no one can foresee the scope of it and no one can know when he might be held to have ignored a prohibition, not knowing or not having the means of knowing what the prohibition consists of.
If it true that in Sub-clause (2) of the rule, a procedure has been laid down whereby in cases of doubt a Government servant can refer to the authorities the question whether a particular speech which is going to be delivered, or a document which is going to be published, comes within the mischief of the rule. This, however, does not avoid the infirmity because the decision of the authority concerned will not be based on any determinable factor and might be wholly arbitrary and unreasonable.
19. The fundamental right of freedom of speech and expression is thus made subject to the arbitrary subjective satisfaction of a few persons in authority, and mainly of a hierarchy of Government officials, and this is against the letter andspirit of the fundamental right of free speech and expression guaranteed by the Constitution. Only one exception to this rule must be borne in mind. The character of an evil act depends upon the circumstance in which it is done 'Schenck v. U. S.,' 63 Law Ed. 470 (H). What might be called arbitrary or unreasonable in normal times might ceaseto be so in times of national emergency like war or rebellion: 'Liversidge v. Anderson', (1942) A.C. 206(I). I am dealing with a case which has arisen in normal times and, therefore well within the mischief of the principles adumbrated above.
20. An argument may be advanced that if the rule was vague and uncertain, the exercise of the powers given under it in a particular case may be scrutinised by the Court and if found unreasoable, declared void. This argument overlooks the fact that if the statute under which the power is exercised is itself vague and uncertain, the Court is as much in the dark as any individual and cannot decide whether reasonable grounds existed or not for the exercise of the unlimited powers granted under the impugned rule.
21. It is argued on behalf of the respondent that even if the impugned rule is invalid, thepetitioner had by his declaration dated 4-3-1944, incorporated the same in his service contract, and therefore, was bound by it. Firstly, this argument is irrelevant because the petitioner was asked to show cause why he should not be dismissed for violating the impugned rule and not for violating a term of his service-contract. In any event, the point does not arise because on the facts of this case, no such service contract exists. Reference has been made to my decision in 'Fakirchandra Chiky v. S. Chakravarty,' : AIR1954Cal566 (J), where I held that if a person bound himself by the general rules and regulations applicable to Government servants he must be taken to be bound by those terms that were legal and in so far as that law offended against the Constitution, it was void.
22. I was there considering Article 311 of the Constitution and my observations must be taken to be limited to that Article. Article 311 was meant for safeguarding the interests of Government servants. In the case of their dismissal, removal or reduction in rank, a certain procedure has to be followed. Quite plainly. Government cannot be permitted to enter into contracts of service taking away those safeguards. It was however not my intention to hold that a citizen could under no circumstances enter into any contract with Government, waiving or modifying any of his fundamental rights conferred by Part III of the Constitution. In many cases, contracts of service do put substantial restrictions upon such fundamental rights. For example, it is usual to stipulate that an officer should not leave the limits of a certain town or district or headquarters, without the prior leave of his superiors. An absolute prohibition of movement might offend against the I.P.C.; but there does not seem to be any objection to the kind of restriction mentioned above, although it may be said to affect the provisions of Article 19(1)(d) of the Constitution.
In this particular case, there is no written service contract. Where certain terms are incorporated in the service contract, that is one thing. If, however, the Government servant merely acknowledges that he is governed by certain statutory rules, then the question arises as to whether he would have been bound by them even without such an acknowledgment. If he was, then the rules apply to him, not by reason of his contract but dehors it In the present case, the petitioner did not say that the rules, such as are found in the Government Servants' Conduct Rules, were to be a part of his contract of service, or that he was waiving any of his fundamental rights granted under the Constitution.
The Government Servants Conduct Rules apply to all Government servants whether they have a written contract of service or not. All that the petitioner did was to acknowledge that he had notice or knowledge of the statutory rules. Everybody is presumed to know the law, and as such, such an acknowledgment was really superflous. In my opinion, the declaration made by the petitioner on 4-3-1944, does not affect the matter.
23. Lastly, it has been argued on behalf of the petitioner that the appellate authority in the present case is the Postmaster General who had issued the notice dated 5-7-1950, under the Civil Services (Safeguarding of National Security) Rules, 1949. It is argued that the Postmaster-General has thus prejudged the matter and the dismissal of the petitioner was bad.
In my opinion, there is no substance in this argument. If the appellate authority in any particular case is shown to have pre-judged the matter, that might stop a specified person from acting as the appellate authority. The particular incumbent of that office who dealt with the notice dated 5-7-1950 may not be competent to entertain an appeal in the present case.
This, however, will not exclude some other incumbent of the office to deal with the same. In this application, I am not concerned with this point at all. The only point that is before me is to find out whether the order of dismissal dated 3-3-1952passed by the Chief Superintendent, Central Telegraph Office, Calcutta, based on an alleged violation of B. 20(1), Government Servants' Conduct Rules, was valid or not.
24. For the reasons aforesaid, I must hold that Rule 20(1), Government Servants' Conduct Rules 1926, constitutes an unreasonable restriction on the fundamental rights granted to the petitioner under Article 19(1)(a) of the Constitution, and as such, is ultra vires' and void under Article 13(1) of the Constitution. It is therefore not permissible to charge the petitioner with a violation thereof, and the order of dismissal dated 3-3-1952, passed by the Chief Superintendent, Central Telegraph Office, Calcutta, based on that Rule, is also invalid.
25. This Rule will, therefore, be made absolute and there will be a writ in the nature of Certiorari quashing the said order dated 3-3-1952, passed by the Chief Superintendent, Central Telegraph Office, Calcutta, and a Writ in the nature of Mandamus directing the respondents from forbearing to give effect to the said order. The petitioner is to be restored to the same position as if no such order had been passed. This order in no way affects the proceedings pending against the petitioner under the Civil Services (Safeguarding of National Security) Rules, 1949.
26. As this application involves a difficult question of law, there will be no order as to costs.