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2021 DIGILAW 2121 (RAJ)

Lava Kumar Sharma v. State of Rajasthan

2021-11-12

MAHENDAR KUMAR GOYAL

body2021
JUDGMENT 1. In the writ petition, the petitioner has assailed the legality and validity of the charge sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 issued to him vide memorandum dated 3.8.2021 by the Joint Director, School Education, Jaipur Division, Jaipur. 2. The petitioner is working as Senior Teacher (Mathematics) since the year 2000 and at present is posted at Government Senior Secondary School, Baberi, Bansur in District Alwar. He has been issued charge sheet under Rule 16 which is under challenge in the writ petition. 3. Learned counsel for the petitioner submitted that the allegations levelled in the charge sheet do not constitute misconduct under Rule 3, 4 or 11 of the Rajasthan Civil Services (Conduct) Rules, 1971. Learned counsel submitted that the allegations in the charge sheet against him is of circulating certain messages on whatsapp/facebook which is hit by his fundamental right of speech and expression enshrined under Article 19(1)(a) of the Constitution of India. He contended that his status of Government servant can, in no way, impinge upon his right of speech and expression. Lastly, learned counsel submitted that since, the act of circulating the messages do not pertain to discharge of his official duty and hence, the charge sheet in question deserves to be quashed. He, in support of his submissions, relied upon the judgement of the Hon'ble Supreme Court of India in the case of Vijay Shanker Pandey vs. Union of India & Anr.- (2014) 10 SCC 589 , a Division Bench judgement of Hon'ble Bombay High Court in the case of Jayant vs. State of Maharashtra & Anr.-[ 2018 (4) Mh.L.J. 656 ] and a judgement of the Hon'ble High Court of Tripura in the case of Smt. Lipika Paul vs. State of Tripura & Ors., WP (C) No.1363/2019 dated 9th January, 2020. 4. Heard learned counsel for the petitioner and perused the record. 5. Indisputably, the messages in question have been circulated by the petitioner through whatapp/facebook. The question is whether the messages so circulated, detailed in the statement of allegations appended with the charge sheet, constitute misconduct under the Rules of 1958 or not and if yes, this not having been done in discharge of his official duty, whether the charge-sheet deserves to be quashed? 6. The question is whether the messages so circulated, detailed in the statement of allegations appended with the charge sheet, constitute misconduct under the Rules of 1958 or not and if yes, this not having been done in discharge of his official duty, whether the charge-sheet deserves to be quashed? 6. Rule 3 of the Rules of 1971 provides inter alia that every government servant shall at all times maintain devotion to duty and dignity of office. Rule 4(ii) expects from a government servant not to behave in public in a disorderly manner unbecoming of his position as a Government servant. The relevant provisions of Rule 11 says that no Government servant shall, by no means of communication, make any statement of fact or opinion which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government. 7. If, the views/statements circulated by the petitioner as contained in the statement of allegation are examined on the touch stone of the code of conduct prescribed under the Rules of 1971, this Court is satisfied that the language employed in some of the messages such as no.(2), (3), (4) and (6), is highly objectionable, inappropriate or indecent to be used/circulated by a Government servant and being directed against particular political party(ies) as also against particular political figure(s), invites applicability of the provisions of the Act of 1971. Further, some of the messages circulated by the petitioner appear to have dwelt into the realm of unfair and adverse criticism of the government. The petitioner, who is working as a Senior Teacher in a Senior Secondary School since the year 2000, is not only duty bound but is expected also to inculcate high moral standard and discipline in the adolescents, is not expected to be part of circulation of such messages which, undoubtedly, are couched in unparliamentary language. Therefore, in opinion of this Court, contention of the learned counsel that the petitioner has committed no act of misconduct by circulating the messages, cannot be countenanced if not in respect of all, at least, qua some of the messages in question. 8. The second limb of argument of the learned counsel for the petitioner is devoid of merit. Fundamental right of speech and expression under Article 19(1)(a) is not an untrammeled right but, is subject to reasonable restrictions vide Article 19(2) of the Constitution. 8. The second limb of argument of the learned counsel for the petitioner is devoid of merit. Fundamental right of speech and expression under Article 19(1)(a) is not an untrammeled right but, is subject to reasonable restrictions vide Article 19(2) of the Constitution. The Rules of 1971 have been enacted under proviso to Article 309 of the Constitution of India and it puts reasonable restriction on the fundamental right of speech and expression of a Government servant. It may be noted here that validity of the Rules of 1971 is not under challenge in the writ petition. No doubt, any fair and bonafide criticism of any Government with the object of bringing transparency in its administration or increasing its efficiency, is always welcome and appreciable and cannot be subjected to question mark employing the provisions under the Rules of 1971 but, in the garb of this, a Government servant cannot be permitted to travel beyond the permissible limit. Every Government servant is bound by the code of conduct as prescribed under the Rules of 1971 and it is not permissible for him to claim exception from the same pleading his right under Article 19(1)(a). As already observed, the language used in some of the messages circulated by the petitioner is unparliamentary targeting particular political party(ies) and particular political figure(s) and also enters into the arena of unfair/adverse criticism, not expected from a Government servant. Thus, charge sheet cannot be quashed by giving the petitioner benefit of the fundamental right under Article 19(1)(a) of the Constitution of India. 9. Contention of the learned counsel that since the act of circulation of the messages in question did not relate to his official duty, the same could not have invited disciplinary enquiry, does not merit acceptance. A perusal of the scheme of Rules of 1971 reveals that it does not make any distinction in between act of misconduct of a Government servant committed in discharge of his public duty or otherwise. Some of the relevant provisions are being quoted as under: 'Rule 3(1) provides that every Government servant shall at all times- (i) maintain absolute integrity; and (ii) maintain devotion to duty and dignity of office. Some of the relevant provisions are being quoted as under: 'Rule 3(1) provides that every Government servant shall at all times- (i) maintain absolute integrity; and (ii) maintain devotion to duty and dignity of office. Rule 4 Improper and Unbecoming conduct: Any Government servant who- (i) is convicted of an offence involving moral turpitude whether in the course of discharge of his duty or not; (ii) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (iii) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (iv) leads an immoral life; (v) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (vi) without sufficient and reasonable cause, neglects or refuses to maintain his/her spouse, parent, minor or disabled child who is unable to maintain himself/herself or, does not look after any of them in a responsible manner; (vii) willfully tempers with the meter or any other equipment or the power/water line with a view to causing financial loss to any of the Departments/Companies providing public utilities like power and water. shall be liable to disciplinary action. Rule 4B. Prohibition regarding employment of children below 14 years of age: No Government servant shall employ to work any child below the age of 14 years. Rule 4C. Encroachment on Government Lands: Any Government servant who involves or makes any encroachment on the Government Land or any land belongings to Local Bodies/Urban Improvement Trusts/Jaipur Development Authority/Rajasthan Housing Board/Panchayati Raj Institutions or any other Government Undertaking in any manner on or after 15.8.1998, shall be liable for disciplinary action. Rule 4F. Observance of Government policies: Every Government servant shall, at all times - (i) act in accordance with Government's policies regarding age of marriage, preservation of environment, protection of wildlife and cultural heritage; (ii) observe the Government's policies regarding prevention of crime against women. Rule 7. Taking part in politics and elections: (1) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (2) It shall be the duty of every Government servant to endeavor to prevent any member of his family from taking part in, subscribe in aid of, or assist in any other manner any movement or activity which is, or tends directly or indirectly to be subversive of the Government as by law established and where a Government servant is unable to prevent a member of his family from taking part in, or subscribing in aid of or assisting in any other manner, any such movement or activity, he shall make a report to that effect to the Government. Rule 25. Rule 25. Restriction regarding marriage:(1) No Government servant shall enter into, or contract a marriage with a person having a spouse living. (2) No Government servant having a spouse living, shall enter into, or contract, a marriage with any person: Provided that the Government may permit a Government servant to enter into or contract, any such marriage as is referred to in sub-rule (1) or sub-rule (2) if it is satisfied that xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx' 10. The aforesaid provisions do not offer exhaustive list under the Rules of 1971 wherein an employee's act of misconduct not related to discharge of official duty can invite disciplinary enquiry but, have been referred only to negate the argument raised by the learned counsel. In case of S. Govinda Menon vs. UOI & Anr.- AIR 1967 SC 1274 , the Hon'ble Supreme Court while dealing with the validity of a charge sheet issued to the petitioner questioned by him on the premise that his act of alleged misconduct committed as Commissioner was not subject to administrative control of the Government and hence, it was incompetent to have issued the charge sheet, held as under: '6.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxx Rule 4(1)(b) merely says that the appropriate Government competent to institute disciplinary proceedings against a member of the Service would be the Government under whom such member was serving at the time of the commission of such act or omission. It does not say that the act or omission must have been committed in the discharge of his duty or in the course of his employment as a Government servant. It is, therefore, open to the Government to take disciplinary proceedings against the appellant in respect of his acts or omissions which cast a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the Service. It is not disputed that the appellant was, at the time of the alleged misconduct, employed as the First Member of the Board of Revenue and he was at the same time performing the duties of Commissioner under the Act in addition to his duties as the First Member of the Board of Revenue. It is not disputed that the appellant was, at the time of the alleged misconduct, employed as the First Member of the Board of Revenue and he was at the same time performing the duties of Commissioner under the Act in addition to his duties as the First Member of the Board of Revenue. In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government. The test is whether the act or omission has some reasonable connection with the nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant.' 11. Thus, this Court is not satisfied that the charge sheet in question is liable to be quashed and set aside on the ground that the petitioner circulated the messages in question not in discharge of his official duty. 12. A Division Bench of this Court in the case of Praveen Kumar vs. Rajasthan High Court, Jodhpur & Ors.-2020 (4) SLR 46 has upheld the decision of the employer to terminate services of the petitioner therein, a member of Rajasthan Higher Judicial Service, for a misconduct having no concern whatsoever with discharge of his official duty. 13. The judgement of Hon'ble Supreme Court of India in the case of Vijay Shankar Pandey (supra) is of no help to the petitioner having been rendered in altogether different facts and circumstances. In paras 41 and 47, it was held as under: '41. 13. The judgement of Hon'ble Supreme Court of India in the case of Vijay Shankar Pandey (supra) is of no help to the petitioner having been rendered in altogether different facts and circumstances. In paras 41 and 47, it was held as under: '41. Coming to the third reason given in the impugned order that the content of Writ Petition (C) No. 37 of 2010 is critical of the Government of India, and therefore, violative of Rule 3(1), 7, 8(1) and 17 of the Conduct Rules, we are of the opinion that this ground is equally untenable. 47. We are at a loss to comprehend how the filing of the writ petition containing allegations that the Government of India is lax in discharging its constitutional obligations of establishing the rule of law can be said to amount to either failure to maintain absolute integrity and devotion to duty or of indulging in conduct unbecoming of a member of the Service.' 14. In the instant case, the messages are directed against particular political party (ies) as also against particular political figure(s). It has also been held that the messages do not amount to fair/bonafide criticism of the government. 15. In the case of Smt. Lipika Paul (supra), the action of the respondents to place the petitioner under suspension at the fag end of her service career and of initiating departmental enquiry after the date of her superannuation, was quashed. Therein, the allegation against the petitioner inter alia was that she canvassed against the political party by posting in social media through facebook along with photographs, comments which read as under: "Who is in the temple, I am not taking banana. No room in his own place but making big noise elsewhere. This soil is an unconquerable fort. In Asthabal Play Ground, with people we are two. Listen Sudip, on 2018, we will not come, it is 100% confirm. But will not tell it to Delhi. In that event money will be reduced. Whatever money will come we take it equally. In course of changing we shall be necked. It is waiting for wearing next garment. Let us slap." 16. In the backdrop of aforesaid comment, the Hon'ble Court proceeded to held as under: '15. The second limb of canvassing against a political dispensation by putting a Facebook post is even easier to dispatch. In course of changing we shall be necked. It is waiting for wearing next garment. Let us slap." 16. In the backdrop of aforesaid comment, the Hon'ble Court proceeded to held as under: '15. The second limb of canvassing against a political dispensation by putting a Facebook post is even easier to dispatch. I have taken note of the contents of the said post which originally was in Bengali and has been translated and presented before me. Nothing contained in the said post suggests canvassing for or against any political party. It only expresses certain beliefs of the petitioner in general terms. As a Government servant the petitioner is not devoid of her right of free speech, a fundamental right which can be curtailed only by a valid law. She was entitled to hold her own beliefs and express them in the manner she desired of course subject to not crossing the borders laid down in sub- rule (4) of Rule 5 of the Conduct Rules. Once I find that the petitioner's Facebook post had no element of canvassing for or against any political party, second limb of the allegation of breach of Rule 5(4) of the Conduct Rules also must fail.' 17. However, as already held by this Court, in the present case, act of the petitioner in circulating the messages cannot be saved/protected by invoking his fundamental right of speech and expression as the same are employed in highly objectionable/inappropriate language targeting particular political party(ies) and particular political figure(s). 18. Similarly, in case of Jayant (supra), the Hon'ble Bombay High Court quashed the order passed by the disciplinary authority proposing initiation of departmental enquiry on being dissatisfied with the reply filed by the petitioner therein to the charge sheet issued to him as also the order of suspension. The charge sheet was based upon a comment posted by the petitioner therein on his facebook, which reads as under: 'when unworthy persons get opportunity to speak in the House, they become philosophers and make wild allegations and this is called Democracy.' 19. The Hon'ble Bombay High Court allowed the writ petition observing that the act alleged was general in nature and surely did not relate to any political party or concerning political issue which is not the position obtaining in the present case. The Hon'ble Bombay High Court allowed the writ petition observing that the act alleged was general in nature and surely did not relate to any political party or concerning political issue which is not the position obtaining in the present case. Of course, it was also held therein that the act could not be linked with his official functions but, as already observed, the scheme of Rules of 1971 does not make any distinction if an act/omission of a government employee constitutes misconduct whether in discharge of his official function or otherwise. Rather, it specifically covers such act/omission even if not committed in discharge of official duty. Hence, this Court is not persuaded to accept this reasoning assigned by the Hon'ble Court for allowing the writ petition. 20. There is one more salient feature in the case of Jayant Sarvottamrao Kharwadkar (supra). Therein, the decision of the disciplinary authority to proceed further in the departmental enquiry after considering the reply filed by the delinquent to the charge sheet, was quashed whereas, in the present case, the petitioner is yet to file his reply to the charge sheet quashing whereof is sought at the threshold. 21. The Hon'ble Supreme Court has, in the case of, Union of India & Ors. Vs. Ashok Kacker-1995 Suppl (1) SCC 180, held as under: 4. Admittedly, the respondent has not yet submitted his reply to the charge-sheet and the respondent rushed to the Central Administrative Tribunal merely on the information that a charge-sheet to this effect was to be issued to him. The Tribunal entertained the respondent's application at that premature stage and quashed the charge-sheet issued during the pendency of the matter before the Tribunal on a ground which even the learned counsel for the respondent made no attempt to support. The respondent has the full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are now urged on his behalf by learned counsel for the respondent. In our opinion, this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon. In our opinion, this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon. This being the stage at which the respondent had rushed to the Tribunal, we do not consider it necessary to require the Tribunal at this stage to examine any other point which may be available to the respondent or which may have been raised by him.' 22. The Hon'ble Supreme Court has, in the case of Union of India & Anr. vs. Kunisetty Satyanarayana- (2006) 12 SCC 28 , held as under: '11. Instead of replying to the aforesaid Charge Memo, the respondent filed an OA before the Central Administrative Tribunal, Hyderabad which was disposed of vide order 15.3.2004 with the direction to the applicant to submit his reply to the Charge Memo dated 23.12.2003 and on submission of the said reply the Disciplinary Authority should consider the same. Instead of filing any reply the respondent filed a Writ Petition in the High Court which has been allowed, and hence this appeal. 12. In our opinion, the High Court was not justified in allowing the Writ Petition. 13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director vs. Mohd. Ghulam Ghouse AIR 2004 SC 1467 , Ulagappa vs. Divisional Commissioner, Mysore 2001(10) SCC 639 , State of U.P. vs. Brahm Datt Sharma AIR 1987 SC 943 etc. 14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge- sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet. 16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.' 23. The Hon'ble Supreme Court has, in the case of State of Orissa & Anr. vs. Sangram Keshari Misra & Anr.- (2010) 13 SCC 311 , held as under: '10. Though there appears to be some merit in the said contentions of the first respondent, it is unnecessary to examine the correctness of these contentions as normally a charge sheet is not quashed prior to the conducting of the enquiry on the ground that the facts stated in the charge are erroneous. It is well settled that the correctness or truth of the charge is the function of the disciplinary authority. (vide Union of India vs. Upendra Singh - 1994(3) SCC page 357). Therefore we reject the contention that the charge ought to have been quashed without reserving to the State to proceed in accordance with law.' 24. Therefore, even otherwise also, this Court would not like to usurp the jurisdiction of disciplinary authority which is yet to take a decision to proceed or not to proceed further against the petitioner appreciating the reply, if any, to be filed by the petitioner to the charge sheet. Therefore, even otherwise also, this Court would not like to usurp the jurisdiction of disciplinary authority which is yet to take a decision to proceed or not to proceed further against the petitioner appreciating the reply, if any, to be filed by the petitioner to the charge sheet. 25. The upshot of the aforesaid discussion is that the petition is devoid of merit and is dismissed accordingly. However, it may be clarified that the aforesaid observations are made only for disposal of the writ petition and shall not prejudice merit of the case which is yet to be examined by the disciplinary authority.