The Leaflet

| @theleaflet_in | January 11,2020

THE Tripura High Court on January 9, 2020, while quashing a departmental charge-sheet against the petitioner Lipika Pual, who worked as a UDC in the Fisheries Department of the Government of Tripura, held that a government servant is not devoid of her right to free speech, a fundamental right that could be curtailed only by a valid law.

Petitioner had challenged the order issued by the Director of Fisheries placing her under suspension on the ground that the petitioner had violated Rule 5 of the Tripura Civil Services (Conduct) Rules, 1988 by directly taking part in a political rally organized/ campaigned by a particular party at Agartala on December 31, 2017.

The petitioner, thereafter, was served with a memorandum of charge-sheeted containing only one article of charge alleging that while working as a UDC the petitioner had canvassed against a political party by making defamatory and indecent comments against political leaders who were contesting election from a recognized political party in the Assembly Election of 2018.

The charge sheet also contained allegations that petitioner had also canvassed and participated in the political rally held on December 31, 2017, at Agartala. It was, therefore, alleged that her conduct was in breach of Rule 5(4) of the Conduct Rules.

Opposing the petition, the Government Advocate contended that the petition was premature. “The petitioner would have the right to defend herself in the departmental proceedings initiated by the disciplinary authority. The question of whether she has committed misconduct or not cannot be prejudged”, said the counsel for the government.

It was further contended by the state that as per the information of the department the petitioner had participated in a political rally and had also put Facebook post criticizing certain candidates of the rival political party. According to the State, this was clearly in breach of Rule 5 of the Conduct Rules. As a Government servant, according to the advocate for the state, she could not have taken part in political activities.

Rejecting the objection of the government, the court said “ordinarily the Court would not interfere at a stage where the department has only issued a charge sheet and the departmental inquiry is yet to be completed. It is essentially for the employer to inquire into any of the allegations of misconduct against the Government servant by constituting a departmental inquiry and conducting the inquiry in consonance with the principles of natural justice.

“The role of the High Court even before the departmental inquiry is completed would necessarily be limited. However, there must come cases, howsoever and few and far between, which would require closer scrutiny at the hands of the Court and to discern at the very threshold whether the allegations contained in the charge-sheet constitute any misconduct whatsoever. If the answer to such a question was in the negative, it would be futile, in fact, incorrect to subject the Government servant to a full-fledged departmental inquiry. With this angle in mind one may look at the precise allegations against the petitioner contained in the said charge-sheet”, said the High Court.

After going through the charge-sheet, the court found that the allegations against the petitioner were in two parts. First part is that she had put certain Facebook comments, which according to the disciplinary authority amounted to canvassing against the political party and its leaders who were contesting the ensuing Assembly Election. The second part was that she had participated in a political rally held at Agartala. It then proceeded to give findings on the allegations against the petitioner.

“The statement of imputations does not give any indication of the activity of the petitioner being in any manner violative of sub-rule (4) of Rule 5 of the Conduct Rules. The article of charge alleges that she had participated in a political rally whereas the statement of imputations alleges that she had attended the meeting. There is a vital difference between attending a rally and participating in a rally. During election times as is well known, political parties and their leaders as well as nominated candidates take out rallies and address public gatherings. Every person who is present in the audience during such addresses cannot be stated to have participated in the rally. The presence of a person does not either establish his or her political affiliation”, the High Court held.

The High Court further held “a student of politics, an enthusiastic young man, a reporter or just a curious bystander all are likely to be present in any political gathering. Even an opponent or a critic of a political party may also attend the gathering. Her mere presence at a gathering, therefore, without any further allegation, would not amount to her participation in such political gathering. The first limb of the allegation against the petitioner of having breached the sub-rule (4) of Rule 5 of the Conduct Rules, therefore, must fail”,

On the issue of canvassing against a political dispensation by putting a Facebook post, Chief Justice Akil Kureshi held that nothing contained in the said post suggested canvassing for or against any political party. He added, it only expressed 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, the second limb of the allegation of breach of Rule 5(4) of the Conduct Rules also must fail”, said CJ Kureshi.

The Court lastly set- aside from the said charge-sheet issued against the petitioner. Consequentially, the order of suspension was held to be not surviving anymore.

It was also directed that the government would release all the post retiral benefits which have so far not been paid to the petitioner within a period of two months from the date of the judgment.

 

 

Read the judgment here: 

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