Mahendra Kumar (Petitioner) v. Union Of India And Another (S).

Jeevan Reddy, J.:— The petitioner was selected and appointed as Officer Surveyor in the year 1959. In 1978 he was functioning as General Secretary of the “Survey of India Class-II Officers Association”. By an order dated 20-10-1978, the Surveyor-General of India, Dehradun (U.P State) suspended the petitioner pending enquiry into charges. On the same day he issued proceedings promoting 22 Officer Surveyors to the posts of Superintending Surveyors, out of whom nine were juniors to the petitioner. The order of suspension was subsequently revoked. However, on 6-11-1978 three charges were framed against the petitioner and served upon him. Those three charges are:—

“(1) That the said Shri Mahendra Kumar while functioning as Officer Surveyor in the Centre for Survey Training and Map Production, Survey of India. Hyderabad, during the period February 1978 wrote an anonymous letter addressed to Lt Co. (now Colonel) P. Misra, Director, Survey Training Institute (CST & MP), Survey of India, Hyderabad, containing improper remarks, in a manner unbecoming of a Government servant, and thereby violating Rule 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964.

(2) That the said Shri Mahendra Kumar while functioning as Officer Surveyor in the Centre for Survey Training and Man Production Survey of India, Hyderabad during Feb. 1978 and March 1978 respectively wrote an anonymous letter and a pseudonymous letter both addressed to the Union Finance Minister, containing remarks amounting to complaints against officers of Survey of India and criticising the manner of functioning of Government of India, in a manner unbecoming of a Government servant and thereby violating Rule 3(1)(iii) and Rule 9 of the Central Civil Services (Conduct) Rules, 1964.

(3) That the said Shri Mahendra Kumar while functioning as Officer Surveyor in the Centre for Survey Training and Map Production, Survey of India, Hyderabad during the period between June 1978 and August 1978 most improperly circulated anonymous cyclostyled “bulletins” titled “Survey of India Civilian Officers' Information Bulletin………” from time to time, which included serious and derogatory allegations against superior officers of Survey of India, intended to create disaffection and division amongst the officers in the department and cause conditions prejudicial to the smooth running of administration and criticizing the action of the Central Government in regard to its policies, and acted in a manner unbecoming of a Government servant, thereby violating Rule 3(1)(iii) and Rule 9 of the Central Civil Services (Conduct) Rules, 1964.”

2. An Enquiry Officer was appointed to enquire into the charges. On behalf of the department, two witnesses were examined, and one witness on behalf of the petitioner. After considering the material placed before him, the Enquiry Officer reported as follows: With respect to charge No. 1, he held, on the basis of admission made by the petitioner, that the petitioner did write the letter addressed to Col. P. Misra, Director, Survey Training Institute, Survey of India; but held that the said letter did not contain any improper remarks. With respect to charge No. 2, he held, again on the basis of the admission made by the petitioner, that the two letters (one anonymous and the other pseudonymous) were written by the petitioner, but held that until and unless an enquiry is made into the truth or otherwise of the allegations made therein, it is not possible to hold that they contained false, unfounded or imaginary complaints. So far as the third charge is concerned, he held it not proved. After receiving the report of the Enquiry Officer, the disciplinary authority, viz., the Surveyor-General of India, disagreed with the report of the Enquiry Officer to the extent it was in favour of the petitioner. For the reasons recorded by him, he held all the three charges proved against the petitioner and dismissed him from service as not being a fit person to be retained in Government service. Thereupon, the petitioner preferred an appeal to the Union of India, which was disposed of under the order dated 12-2-1982. Under this order, the petitioner's appeal was allowed to the extent that the penalty of dismissal imposed upon him was modified to that of reduction to the next lower post of Surveyor (Selection Grade) on a pay of Rs. 900 per month in the scale of Rupees 550-900 for a period of five years, with the stipulation that the petitioner will be restored to his original post on the expiry of the period of reduction, and that on restoration, such reduction will not affect his seniority and pay. This order was passed after consulting the Union Public Service Commission and, indeed, the opinion of the Union Public Service Commission was enclosed to the appellate order. The advice of the Union Public Service Commission shows that it held charge No. 3 as not proved, but held charges 1 and 2 partly proved, which details I shall advert to later.

3. In this writ petition, Sri Upendralal Waghray, learned counsel for tie petitioner, put forward the following contentions:

(i) that, the petitioner being a direct recruit to the category of Officer-Surveyors could not have been reduced to the lower post of Surveyor. Therefore, the penalty imposed is incompetent in law, and is unsustainable;

(ii) that, inasmuch as the disciplinary authority did not indicate the grounds upon which it was disagreeing with the Enquiry Officer's report, the petitioner had no opportunity of showing cause against those grounds. This has resulted in failure of justice. The order of the disciplinary authority is, therefore, bad for violation of the principles of natural justice;

(iii) that, the appellate order not being in compliance with sub-rule (2) of R. 27 of the Central Civil Services (Classification, Control and Appeal) Rules, is liable to be set aside;

(iv) that, the three letters in question cannot be said to contain any improper or undesirable matter, the making of which can be termed as unbecoming of a Government servant, within the meaning of Rule 3(1)(iii) of the Central Civil Services (Conduct) Rules. The conclusion to the contrary is unsustainable, particularly because the disciplinary authority, being an Army Officer, was unkindly disposed towards the petitioner, who belonged to civilian group and was also the General Secretary of their Association. Rule 3(I)(iii) of the Conduct Rules must be read consistent with the freedom of speech and expression, guaranteed to the citizens of this country, which freedom are not forfeited by a citizen entering the Government service; and

(v) that, in any event, the penalty imposed is totally disproportionate to the charge said to have been proved. In the particular facts and circumstances of this case, this Court ought to interfere even on the qusstion of penalty.

4. I am unable to agree with Mr. Waghray's first submission. The Central Civil Service (Classification, Control and Appeal) Rules provide for several penalties which can be imposed for good and sufficient reasons. One of the major penalties contemplated by Rule 11 is “reduction to a lower…….grade, post or service………”, and I see no reason why this penalty cannot be imposed upon a person who, on the date of imposition of penalty, is continuing in the same post to which he was appointed by direct recruitment. This is not a case of reversion of a Government servant to his substantive post for want of vacancy or otherwise, but this is a case of reduction by way of punishment. I am unable to read any limitation upon the power of the disciplinary authority to impose this punishment on the petitioner, as suggested, No decision has also been brought to my notice supporting this contention. It is, accordingly, rejected.

5. With respects to the second contention of Mr. Waghray, Rule 15(2) does not contemplate an opportunity to be given to the accused-officer to represent against the grounds upon which the disciplinary authority is disagreeing with the Enquiry Officer's report. Rule 15(2) reads as follows:

“(2) The disciplinary authority shall, if it disagrees with the finding of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose”.

6. This sub-rule may be read along with sub-rule (4) of Rule 15, which reads as follows:—

“(4) If the disciplinary authority have regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in Cls. (v) to (ix) of Rule 11 should be imposed, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:

Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant”.

7. It appears that sub-rule (4) in the present form was introduced by an order dated 16-8-1978, published in the Gazette of India on 2-9-1978, probably in pursuance of the amendment of Clause (2) in Article 311 of the Constitution by the forty-second amendment to the Constitution. After the 42nd amendment, Article 311(2) excluding the provisos which are not necessary for the present purpose reads as follows:—

“(2) No. such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges”.

8. It is thus clear that, after the 42nd amendment to the Constitution, the opportunity to show cause against the proposed penalty has been taken away. Formerly, it was obligatory upon the disciplinary authority to hear the accused-officer on the quantum of penalty also, but that is no longer necessary now. The CCS (CCA) Rules have also been amended to bring them in accord with the amended Clause (2) of Article 311. The complaint of the petitioner has to be understood in the context of this legal position. After receipt of the enquiry report, the disciplinary authority did not issue any notice to the petitioner enclosing the report of the Enquiry Officer, calling upon the petitioner to make his representation against the penalty proposed. What happened in this case was that, after receipt of the Enquiry Officer's report, the disciplinary authority perused the enquiry report and, for the reasons recorded by him, disagreed with the Enquiry Officer's findings, and imposed the penalty of dismissal and communicated the same to the petitioner. In the state of the law aforesaid, it cannot be said that there has been a violation of any constitutional guarantee in this case, or that any of the Rules have been violated. In view of the 42nd amendment, which has been left untouched even by the 44th amendment, it is not possible for this Court to say that, notwithstanding the constitutional provision or the rule position, it was obligatory upon the disciplinary authority to apprise the accused officer of the grounds upon which he was disagreeing with the findings of the Enquiry Officer and that, the failure to give such an opportunity renders his order bad. It is not disputed in this case that the enquiry commenced in this case after the 42nd Amendment, as well as after the amendment of Rule 15(4). For the above reasons, the second contention urged by Mr. Waghray is also rejected.

9. The third contention of Mr. Waghray is based upon sub-rule (2) of R 27 which, in so far as it is relevant, reads as follows:—

“(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said rules, the appellate authority shall consider—

(a) whether the procedure laid down in these rules has been com plied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;

(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and

(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders—

(i) confirming, enhancing, reducing or setting aside the penalty; or

(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case…………….”.

10. Indisputably, the order of the appellate authority is not in conformity with sub-rule (2) of Rule 27. But what is contended by the learned Additional Standing Counsel for the Central Government is that, the appellate order is accompanied by the opinion of the Union Public Service Commission which is quite elaborate, and which deals with all the aspects required to be dealt with by the appellate order, by Rule 27(2). The contention is that the advice of the Union Public Service Commission should be read as part and parcel of the appellate order. I find it difficult to agree with the learned counsel for the Central Government. Had the appellate order at least said that it agrees with and adopts the reasoning of the Union Public Service Commission, I would have acceded to the contention, ignoring all technicalities. But, in this case, the appellate order does not say so. All that it says is : “now, therefore, the President having considered the appeal dated 20th August, 1981 preferred by Shri Mahendra Kumar and after taking into account the advice tendered by the Union Public Service Commission and all the other factors relevant to the case, hereby allows his appeal to the extent……………” (paragraph 2) Paragraph 3 of the appellate order merely says “a copy of the Union Public Service Commission's letter No. F-3/163/81-S-1 dated 8th February 1982 containing their advice is enclosed”

11. The Public Service Commission is required to be consulted in such matters by virtue of the constitutional provision; the advice of the Commission is not binding upon the Government. In such a situation, and more particularly when the appellate order does not even say that it affirms or adopts the reasoning and the findings of the Commission, it is not possible to agree with the learned Addl. Standing Counsel for the Central Government that the appellate order is not violative of sub-rule (2) of Rule 27. Indeed, the appellate order does not even indicate that it agrees with the Commission's advice that charge No. 3 is not proved. It must be remembered that charge No. 3 was held proved by the disciplinary authority who, in turn, disagreed with the Enquiry Officer, holding charge No. 3 as not proved. The appellate order is too brief and, in effect, comprises of only one para. I may, indeed, set out the entire appellate order, which reads as follows:—

“Subject: Disciplinary proceedings under CCS (CCA) Rules, 1965 against Shri Mahendra Kumar, Officer-Surveyor, Survey of India—Appeal against the penalty of dismissal from service.

Whereas Shri Mahendra Kumar, Officer-Surveyor, Survey of India, was dismissed from service by an order dated 7th July, 1981 passed by the Surveyor General of India.

2. Now, therefore, the President having considered the appeal dated 20th August, 1981 preferred by Shri Mahendra Kumar and after taking into account the advice tendered by the Union Public Service Commission and all the other factors relevant to the case hereby allows his appeal to the extent that the penalty imposed on him in the said order of the Surveyor General of India dated 7th July, 1981 is modified to one of reduction to the next lower post of Surveyor (Selection Grade) on a pay of Rs. 900 per month in the scale of Rs. 550-900 for a period of 5 years, with the stipulation that he will be restored to his original post on the expiry of the period of reduction, and on restoration such reduction will not affect his seniority and pay.

3. A copy of the Union Public Service Commission's letter No F-3/163/81 S-I dated 8th February, 1982 containing their advice is enclosed…”

12. The third contention of Mr. Waghray is, accordingly, upheld. But, even if a contrary view is taken, the petitioner is entitled to succeed on the basis of his next contention which I shall now proceed to deal with. While dealing with the next/fourth contention. I would proceed on the assumption that the findings of the Commission have been accepted by, and form part of the appellate order.

13. For appreciating the fourth contention of Mr. Waghray, it is necessary to notice Rule 3 of the Conduct Rules, as also the findings of the disciplinary authority and the Union Public Service Commission. Rule 3(1) of the Central Civil Services (Conduct) Rules, required that “every Government servant shall at all times (i) maintain absolute integrity; (ii) maintain devotion to duty: and (iii) do nothing which is unbecoming of a Government servant”. A challenge to the validity of rule 3(1)(iii) on the ground of vagueness has been repelled by a Bench of this Court in Khaju Khan v. Post Master General, (1975) 1 Andh W.R 64. It was held that R. 3(i)(iii) merely asks the Government servant not to do anything which is unbecoming of a Government servant and that the sub-rule merely asks him to keep himself within the bounds of administrative decency. It was further held “given commonsense and a sense of decency, it will not be difficult to judge what conduct amounts to unbecoming conduct. What is unbecoming can always be ascertained having regard to the entirety of the conduct”. On this reasoning, the attack upon the validity of the Rule was negatived.

14. Now, let me notice the findings of the disciplinary authority and the Union Public Service Commission, on the three charges. But, before I do that, it would be appropriate to briefly notice the contents of the three letters which form the basis for charges 1 and 2. The letter which forms the basis of the first charge, was purported to be written by a “well-wisher”, and is addressed to Col. P. Misra, Director, Survey Training Institute. Survey of India. At the enquiry, however, the petitioner admitted being the author of this letter, while contending that it does not contain any improper imputation or allegation. The petitioner, as stated above, is a civilian in the department while Col. P. Misra, who was appointed as the Director, was from the Army. The letter a short one reads as follows:—

“Dear Colonel,

Congrats on elevation to the coveted posts and best wishes for a happy and long tenure.

It appears, you have too soon identified yourself with a group. You may be right because your present position is only by virtue of being a person of that group. But kindly don't forget, you are the head of a family where others cannot be ignored or slighted. Well, if you art indifferent to them as such, the confidence reposed in you while sitting on the particular chair will be a betrayal of your conscience.

Well act as you please, but remember God i.e, your own people and the service to them. Life comes but once.

God be with you.

Your sincerely,

A well wisher…….”

15. With respect to this letter, the Enquiry Officer's finding was that it does not contain any improper language or imputation. But the disciplinary authority was of the opinion that this letter clearly refers to groupies in the department, thereby giving an impression that the officers were antagonistic to each other and that, the language used in the letter and its contents constitute a direct insinuation against the officers and the administration. He, therefore, held charge No. 1 to be proved. Now coming to the findings of the Union Public Service Commission, it was of the opinion that the letter “does contain indirect and satirical observation which are not in strict conformity with the tenets of propriety” and, on that basis, held that the said letter contains improper remarks and that, the petitioner was guilty of conduct unbecoming of a Government servant.

16. Now coming to charge No. 2 it based upon two letters dated 6-2-1978 and 10-3-1973, both addressed to Sri. H.M Patel, Union Minister of Finance, Government of India. In these letters, complaints are made with respect to purchase of certain unnecessary equipment at a huge cost to the public exchequer; with respect to the manner in which the pay of on individual Army Officer deputed to work in this department was being fixed; and with respect to the irregularity in the grant of House Rent allowance, additional Dearness Allowance to and the grant of Kit Maintenance allowance to Army Officers. With respect to these letters, the authorship of which was admitted by the petitioner, the finding of the Enquiry Officer was that unless an enquiry is held into the truth or otherwise of the allegations contained in these letters, it cannot be held that the allegations made therein amount to conduct unbecoming of a Government servant. The disciplinary authority was, however, of the opinion that, since these letters contain a direct reference to the wrong functioning of the office of Survey of India, it amounts to an indirect criticism of the functioning of the Government of India and, therefore, charge No. 2 is proved. So far as the Union Public Service Commission is concerned. It held “a perusal of both these letters goes to show that although Shri Mabendra Kumar did not indulge in making complaints against any particular officer of the department of India, there is no doubt that he did mention certain aspects regarding the functioning of the Department of Survey of India which as a Government Officer, he should have meticulously refrained from doing so. The Commission consider that the appellant's plea that he did all this actuated by a spirit of patriotic fervor is not wholly convincing, since as General Secretary of the Class-II Officers Association, he could have better opportunities and more appropriate forums for ventilating his grievances……….”. Accordingly, it held that the petitioner is guilty of conduct unbecoming of a Government servant, within the meaning of Rule 3(i)(iii). But, it negatived the allegation that the said conduct violates Rule 9 of the Conduct Rules.

17. Now, so far as charge No. 3 is concerned, it was held not proved by the Enquiry Officer, but held proved by the disciplinary authority. The Commission again held it not proved—and the appellate authority must be understood as accepting this finding of the Commission.

18. In Kameshwar Prasad v. State of Bihar, A.I.R 1962 S.C 1166, the Supreme Court held that the Constitution of India does not exclude Government Servants as a class from the protection of several rights guaranteed by Part-III though it may be that the nature and incidents of the duties which they have to discharge might necessarily involve restriction of certain freedoms in relation to Article 19(1)(e) and (g). It was, accordingly, held that a peaceful and orderly demonstration would be within the freedoms guaranteed to Government Servants by Article 19(1)(a) and (b), though a violent demonstration would not be within the guarantee of the said freedoms. The same view was reiterated subsequently in O.K Ghosh v. E.X Joseph, A.I.R 1963 S.C 812.

19. Now, if one examines the two letters dated 6-2-1978 and 10-8-1978 (which constitute the basis for charge No. 2), it is difficult to say how, the bringing to the notice of the Minister Incharge certain alleged irregularities in the working of the department can, by itself, constitute a conduct unbecoming of a Government Servant? No one has gone into the truth or otherwise of the allegations contained in these two letters, and found that they were totally baseless, or false. The writer of these letters was merely bringing to the notice of the Hon'ble Minister what, according to him, were specific irregularities in his department. The Ministry ought to have either totally ignored it, as contemplated by the circular-letter of the Ministry of Home Affairs, Government of India—Which instructions are reiterated in the circular, letter of the Ministry of Education, bearing Ref. No. F. 1(10) 68-Vig., dated 9-5-1968, which says, inter alia:

“(i) Anonymous Complaints:— No note or action should be taken on any letter if the writer fails to give his name address,

(ii) Pseudonymous Complaints: In order to verify the pseudony mous nature of a particular complaint, verification should be done by writing back to the complainant at the address given by him, asking to intimate whether the complaint has actually been sent by him. If the complaint is pseudonymous, the letter will either come back undelivered, or the addressee will intimate that he has not sent the complaint but somebody else has done this in his name. The form of the letter which may be addressed in annexed to this order—or the Ministry could have got the said allegations enquired into and verified; and if it was found that the allegations were baseless or false, it could then have tried to find out who the author of the letter was, and take appropriate action against him. But, in this case, strangely enough, the two letters in question were traced to the petitioner, without making any enquiry into the truth or otherwise of the allegations contained therein, and the mere writing of those letters is made the subject-matter of charge No. 2. The observations of the Commission that the petitioner being the General Secretary of Class-II Officers' Association, had available to him better channels of representation, does not answer the question whether the making of the allegations, which are not proved to be untrue or false, amounts to a conduct unbecoming of a Government servant. Indeed, I am of the opinion that, in these days of large-scale inefficiency, corruption, and nepotism; such letters written by insiders—who alone can have the relevant and correct information—very often helps in unearthing undesirable activities. As I have said earlier, either the Government ignores an anonymous letter, (and, in case of a pseudonymous letter, takes action as indicated by the Ministry of Home Affairs/Ministry of Education) or it takes action to verify the truth or otherwise of the contents of such letter. I quite agree that such anonymous or pseudonymous letters should not be encouraged in the interest of discipline in the departments; but that should be weighed against the other factor, viz., that such petitions very often lead to discovery of several fraudulent and illegal going on, which equally serves the public interest Apart from generalization, I am of the opinion that, in this case, the respondents acted rather unusually in seeking to punish the petitioner for writing these letters, without even making any effort to find out, and without even suggesting that the allegations made therein are totally false, unfounded or malicious.

20. Now coming to charge No. 1, it is relevant to notice the ambiguous language in which the Commission has found the said charge to be partly proved. The Commission has held that the letter concerned with this charge, contains “indirect and satirical observations which are not in strict conformity with the tenets of propriety………….”. I fail to see how this finding can be brought within the purview of Rule 3(1)(iii) of the Conduct-Rules. In any event, a reading of the letter does not disclose any conduct unbecoming of a Government Servant. In the context of the admitted clash of interests between the members of Armed Forces and civilians in this department, which was fought out up to the stage of Supreme Court, the writer of the letter was expressing an apprehension that the addressee, who is an Army Officer, has too soon identified himself one group. Firstly, if the letter is read as a whole, it is only a plea for impartial attitude in future. Secondly, conceding that the accusation made therein is unfounded or unjustified, the question is whether it amounts to conduct unbecoming of a Government Servant. While discipline should be given due importance, one need not be too touchy too. Having regard to the then prevailing clash of interest between two groups in the department and the position occupied by the petitioner at the relevant time, it does not appear reasonable to hold that the petitioner is guilty of conduct unbecoming of a Government servant.

21. I am not unconscious of the fact that sitting in a writ petition, I cannot act as an appellate authority and it is not open to me to re-appraise the evidence. But, this is a case where it is unnecessary to consider any evidence. The whole thing depends upon three letters, and whether they constitute in unbecoming conduct on the part of a Government servant. It was only a matter of construction of these letters in the light of the relevant rule position, and it is from that angle that I have approached the matter.

22. In this view of the matter, it is not necessary for me to deal with the 5th contention of Mr. Waghray. For the above reasons, the writ petition succeeds and is, accordingly, allowed. No costs.

23. Petition allowed.