'Govt Servant Has Right To Free Speech' : Tripura HC Sets Aside Suspension Of Staff For Attending Political Rally & FB Post [Read Judgment]

"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," Chief Justice Akil Kureshi held.

Rule 5(1) stipulates that no Government servant shall be a member of, or be otherwise associated with, any political party or any organisation which takes part in politics nor shall he take part in, subscribe in aid of, or such in any other manner, any political movement or activity.

Rule 5(4) stipulates that no Government servant shall canvass or otherwise interfere with, or use influence in connection with or take part in, an election to any legislature or local authority.

In the backdrop, the Petitioner Lipika Paul had been suspended from her services as a UDC in the State Fisheries Department, four days before her retirement, for attending a political programme in December 2017 and making a political post in Facebook.

She was charged under Rule 5 of the Conduct Rules and Rule 9(2)(b) of the Central Civil Services (Pension) Rules, 1972 for participating in a political rally and for canvassing against a political party by making defamatory and indecent comments against political leaders.

Adverting to its limited jurisdiction in matters of disciplinary action, 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… 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."

The court observed that even though Paul was present during the political rally, there was no indication of her "participation" in the same. Justice Kureshi differentiated between attending and participating in a rally and held that mere presence of the petitioner at a political rally did not convey her political affiliation.

"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…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," he said.

The court also perused Paul's Facebook post and concluded that nothing in her post suggested 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," the court held.

Accordingly, Paul's suspension order and the consequent disciplinary proceedings were set aside and the govt. was directed to release all her post retiral benefits within a period of two months.

Last year, the Kerala High Court had directed the state to reinstate a KSRTC conductor placed under suspension for circulating allegedly derogatory remarks against the Chief Minister of Kerala Pinarayi Vijayan through Whatsapp. However, his reinstatement was made subject to disciplinary proceedings.

"One cannot be prevented from expressing his views merely because he is an employee. In a democratic society, every institution is governed by democratic norms. Healthy criticism is a better way to govern a public institution", Justice Muhamed Mustaque had said in that order.

Justice Mustaque had also in November 2018 held that continued suspension of a University Assistant of Mahatma Gandhi University, who posted sarcastic comments in social media following his removal from the membership of University Employees Association, was unjustified.

"Discipline and servitude are to be distinguished. If an employee speaks out in the social media in a general perspective which is not inconsistent with the collective interest of the Institution, that is part of his right of free speech. No authority should expect one to be silent. Survival of public Institution depends upon how it accounts for democratic values. Free expression is the corner stone of democratic value. Every functionary of public power therefore, must command liberty to their constituents", Justice Mustaque stated in that judgment.

Case Details:
Case Title: Lipika Pual v. State of Tripura & Ors.
Case No.: WP(C) No.1363/2019
Quorum: Chief Justice Akil Kureshi
Appearance: Advocates P. Roy Barman, Samarjit Bhattacharjee and Kawsik Nath (for Petitioner); Givt. Advocate Debalay Bhattacharjee (for Respondent)

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