S. Sujatha, J. (Member (J))

1. This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

"i. CALL for records from the Respondent pertaining to the impugned Articles of Charge dated 09/09/2022 [Armexure-A14];

ii. ISSUE WRIT OR ORDER QUASHING - (a) the impugned Articles of Charge dated 09/09/2022 bearing No. NIMH/PER(2)/AGN/CS/2022-23 issued by the Respondent [Annexure-A14]; (b) the impugned Order dated 15/10/2022, bearing No.NIMH/PER(2)/AGN/P0/2022-23 issued by the Respondent [Annexure-A16] whereunder presenting officer is appointed; (c) the impugned Order dated 15/10/2022, bearing No.NIMH/PER(2)/AGN/I0/2022-23 issued by the Respondent [Annexure-A17] whereunder enquiry officer is appointed and all further proceedings thereon against the Applicant, the interest of justice and equity;

iii) PASS any other appropriate order as this Hon'ble Tribunal deems fit in the facts and circumstances of the case, including the cost of this Application."

2. Briefly stated the facts as narrated by the applicant are that he was initially appointed as Staff Nurse in the Respondent Institute on 21.01.1999. He gained promotion to the post of Senior Nursing Officer in March, 2020 and has been working as such since then. The applicant in the capacity as President of the NIMHANS Employees Association (`Association' for short), received an email on 17.07.2022 from one Ms.Sindu, Bio-medical Engineer and Member of Association, alleging complaint against the Registrar, who was functioning in in-charge capacity. On receipt of the said complaint, Association addressed a letter to the Respondent dated 23.07.2022 condemning the behaviour and attitude of the Registrar and requested to take appropriate action. The applicant applied for leave on 29.07.2022 and 30.07.2022, which was sanctioned. On the said dates, the applicant in his capacity as President of Association along with the office bearers of the association conducted a peaceful demonstration by sitting outside the premises of the chamber of the Respondent. A show cause notice dated 03.08.2022 came to be issued by the in-charge Chief Administrative Officer, directing the applicant to submit his reply as to why disciplinary action should not be initiated against the applicant for holding an illegal demonstration on 29.07.2022 and 30.07.2022. The applicant submitted his reply dated 10.08.2022 to the said show cause notice giving detailed reasons. However, the respondents issued an official memorandum dated 09.09.2022, whereby it has been categorically stated that a decision to hold departmental inquiry against the applicant had been taken, accordingly memorandum of charge and charge sheet containing the statement of imputation of charges are issued. In response, the applicant submitted his detailed reply denying the charges levelled against him. The respondents vide impugned orders at Annexures A16 and A17 both dated 15.10.2022 proceeded to appoint the Inquiry Officer and Presiding Officer in order to conduct an inquiry against the applicant. Further, the applicant was issued with a notice dated 29.10.2022 directing him to appear before the Inquiry Officer on 14.11.2022. Being aggrieved, the applicant is before this Tribunal.

3. Learned Counsel Shri Prithveesh M.K. representing the applicant submitted that the charges against the applicant as alleged in the impugned articles of charge dated 09.09.2022 does not amount to misconduct under the Central Civil Service (Conduct) Rules, 1964 (`Rules' for short). Learned Counsel submitted that Rule-7(i) of the Rules deals with demonstration and the said Rule only prohibits any demonstration which is prejudicial to the interest of the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, or which involves contempt of court, defamation of incitement to an offence. In the present case, no such demonstration was conducted or took place. Drawing the attention of the Bench to Rule-7(ii) of the Rules, the learned Counsel submitted that the said Rule deals with strike and not demonstration which is dealt in Rule 7(i) and hence the applicant is alleged to have participated in a demonstration, the charging provision is for that of strike indicated in the charge memo. No criticism of any Government policy nor any statement capable of embarrassing the relations between the Central Government or any Government of any State/foreign State, was made by the applicant. Such being the case, invocation of Rule 9 of the Rules itself is wholly misconceived. The alleged act of speaking to the Media/Press in connection with the demonstration regarding the compliant given by Ms.Sindu against the Registrar would not amount to misconduct under Rule-9 of the Rules. Placing reliance on the interim order passed by the Hon'ble High Court of Karnataka dated 24.11.2022 in W.P.No.22765/2022 submitted that the SLP filed against the said order by the respondents has been dismissed. Learned Counsel submitted that the findings of the Hon'ble High Court have been crystallised in the order of the Hon'ble Supreme Court, wherein SLP filed by the respondents has been dismissed. Hence the principles of res-judicata operate. The observations/finding made in the interim order dated 24.11.2022 by the Hon'ble High Court of Karnataka is binding on the parties.

4. Learned Counsel Shri K.Prabhakar Rao representing the respondent strongly refuting the arguments of the learned Counsel for the applicant submitted that the respondent is a premier institute of national importance which comes under the Ministry of Health and Family Welfare, Union of India. Institute is governed by the provisions of the National Institute of Mental Health and Neurosciences, Bangalore Act, 2012, which came into force with effect from 29.11.2013. The employees and their service conditions are governed by the Central Civil Services (Conduct) Rules, 1964, under Section 41 of the said Act. On the compliant of Ms.Sindu M.G., Bio-medical Engineer, received on 17.07.2022, the Director of the Respondent Institute has placed the matter before the Redressal Grievance Committee, which has given a finding dated 11.08.2022 stating that there is no substance in the complaint, accordingly the said complaint was rejected against the Registrar of Respondent Institute. Learned Counsel further submitted that in the charge sheet dated 09.09.2022 it was alleged against the applicant that he being a Senior Nursing Officer has held the demonstration along with the others within the premises of Respondent Institute (in front of the Director's office) on 29.07.2022 and 30.07.2022. Further, the applicant has induced the other employees to participate in an illegal demonstration within the premises. He has made comments to the Press and Social Media without authorisation or permission, which was published in the news article in the newspaper 'Times of India'. The applicant has circulated the message through Whatsapp to other employees of the Institution against the Registrar. Such being the position, there was no option for the disciplinary authority except to proceed with the disciplinary proceedings. Initiation of disciplinary proceedings are well within the rules applicable to the Respondent Institute. The charges mentioned in the charge sheet would amount to acts of misconduct and the proceedings initiated by the disciplinary authority cannot be faulted with. Learned Counsel appearing for the both the parties have referred to various judgements.

5. We have carefully considered the submissions of the learned Counsel for the parties and perused the material on record.

6. The sole point that arises for our consideration is whether the alleged charges framed in the articles of charge dated 09.09.2022 (Annexure A14) amounts to misconduct warranting initiation of Disciplinary proceedings against the applicant

7. Statement of Articles of charge reads as under:

"ARTICLE-I

That the said Sri A.G.Nagaraja, Senior Nursing Officer, has held illegal demonstration along with others, within the Institute premises and in front of the Director's Office on 29th July, 2022 (from 2.29 P.M. to 6.47 P.M.) & on 30th July, 2022 (from 8.27 A.M to 12.16 P.M) respectively. He has staged an illegal and unlawful demonstration in connection with the complaint of Mrs.Sindu M.G., Biomedical Engineer, against Dr. B.S.Shankaranayana Rao, In-charge Registrar, when the issue is pending before the Competent Authority. This act on the part of the Sri. A.G.Nagaraja, Senior Nursing Officer, is subversive of discipline and amounts to misconduct under Rule 3(1) (i), (ii), (iii) and Rule 7(ii) of CCS (Conduct) Rules, 1964.

ARTICLE-II

That the said Sri. A.G.Nagaraja, Senior Nursing Officer, had gone to the press and social media without authorization/permission with regard to illegal demonstration which took place in the premises of Director's Office on 29th July, 2022 (from 2.29 P.M. to 6.47 P.M0 & on 30th July, 2022 (from 8.27 A.M to 12.16 P.M) respectively. This act on the part of the Sri A.G.Nagaraja, Senior Nursing Officer, is subversive of discipline and amounts to misconduct under Rule 3(1) (i), (iii), (xviii) r/w Rule 9 of CCS (Conduct) Rules, 1964."

8. Statement of imputation of misconduct or misbehaviour of the Articles of Charge framed against the applicant indicates that the applicant has staged an illegal and unlawful demonstration/meeting within the Institute premises along with other employees in connection with the complaint of Ms.Sindu M.G., Bio-medical Engineer against Dr. B.S.Shakaranarayana Rao, In-charge Registrar, when the issue was pending inquiry before the competent authority. Further, the applicant made anonymous comments to the Press and Social Media without authorisation or permission with regard to illegal demonstration which took place in the premises of the Director's office and sharing the message in Whatsapp group to the employees of the Respondent Institute.

9. Rules 7(i) and (ii) and Rule 9 of the Rules are extracted hereunder for ready reference:

"7. Demonstration and strikes

No Government servant shall -

i. engage himself or participate in any

demonstration which is prejudicial to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or which involves contempt of Court, defamation or incitement to an offence, or

ii. resort to or in any way abet any form of strike or coercion or physical duress in connection with any matter pertaining to his service or the service of any other Government servant."

"9. Criticism of Government

No Government servant shall, in any radio broadcast, telecast through any electronic media or in any document published in his own name or anonymously, pseudonymously or in the name of any other person or in any communication to the press or in any public utterance, make any statement of fact or opinion -

(i) which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government:

Provided that in the case of any Government servant included in any category of Government servants specified in the second proviso to sub-rule (3) of Rule 1, nothing contained in this clause shall apply to bona fide expression of views by him as an office-bearer of a trade union or association of Government servants for the purpose of safeguarding the conditions of service of such Government servants or for securing an improvement thereof; or

(ii) which is capable of embarrassing the relations between the Central Government and the Government of any State; or

(iii) which is capable of embarrassing the relations between the Central Government and the Government of any foreign State;

Provided that nothing in this rule shall apply to any statements made or views expressed by a Government servant in his official capacity or in the due performance of the duties assigned to him."

10. The main grounds urged by the learned Counsel for the applicant in challenging the charge memo are:

1. The charges levelled against the applicant do not amount to misconduct.

2. Peaceful demonstration is permissible being the rights of the employees under Article 19 (1) of the Constitution.

3. Rules (7) and (9) of the Rules are not applicable to the facts of the present case

11. It is evident that in Article-I, it has been alleged that the applicant has staged an illegal and unlawful demonstration in connection with the complaint of Ms.Sindu M.G., Bio-medical Engineer against Dr. B.S.Shankaranarayana Rao, in-charge Registrar and the same amounts to misconduct under Rule 3(1(i), (ii), (iii) and Rule 7(ii) of CCS (Conduct) Rules, 1964. 'Strike' and `demonstration', are held to be different and distinct in the judgment of the Hon'ble Madras High Court in the case of D.Thomas Franco Rajendra Dev vs. Disciplinary Authority `Demonstration' comes within the ambit of Rule 7(i) whereas `Strike' under Rule 7(ii).

12. As per the Notes on CCS (Conduct) Rules, 1964, published by G.I., M.HA., D.P. &A.R. 3rd Edition, 1980, the following acts and conduct are held to be misconduct:

1. If the act or conduct is prejudicial or likely to be prejudicial to the interests of the master or to the reputation of the master;

2. If the act or conduct is inconsistent or incompatible with the due or peaceful discharge of his duty to his master;

3. If the act or conduct of a servant makes it unsafe for the employer to retain him in service;

4. If the act or conduct of the servant is so grossly immoral that all reasonable men will say that the employee cannot be trusted;

5. If the act or conduct of the employee is such that the master cannot rely on the faithfulness of his employee;

6. If the act or conduct of the employee is such as to open before him temptations for not discharging his duties properly;

7. If the servant is abusive or if he disturbs the peace at the place of his employment;

8. if he is insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation of master and servant;

9. if the servant is habitually negligent in respect of the duties for which he is engaged;

10. if the neglect of the servant though isolated, tends to cause serious consequences.

Further, the following acts and omissions also amounts to misconduct as per the aforesaid Note:-

1. Wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior.

2. Infidelity, unfaithfulness, dishonesty, untrustworthiness, theft and fraud, or dishonesty in connection with the employer's business or property.

3. Strike, picketing, gherao-Striking work or inciting others to strike work in contravention of the provisions of any law, or rule having the force of law.

4. Gross moral misconduct-Acts subversive of discipline-Riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline.

5. Riotous and disorderly behaviour during and after the factory hours or in business premises.

6. Habitual late attendance.

7. Negligence or neglect of work or duty amounting to misconduct-Habitual negligence or neglect or work.

8. Habitual absence without permission and over-staying leave.

9. Conviction by a Criminal court.

13. It is true that the Government servant is bound to perform certain standard of decency and morality. What is misconduct, cannot be defined in a straight jacket formula or no mathematical precision can be given in general. It depends on the facts and circumstances of the case. It is apt to refer to the judgments relied on by the learned Counsel for the parties to analyse whether the charges levelled against the applicant comes within the purview of misconduct.

14. Misconduct is a generic term in terms of the judgment of the Hon'ble Apex Court in KaIra vs. Project and Equipment Corporation of India Limited 1984 (3) SCC 316 [LQ/SC/1984/132 ;] . The Hon'ble Apex Court held that if what is alleged as misconduct does not constitute misconduct not by analysis or appraisal of evidence, but per se under the rules the respondent had neither the authority nor the jurisdiction nor the power to impose any penalty for the alleged misconduct. An administrative authority who purports to act by its regulation must be held bound by the regulation.

15. In State of Punjab vs. V.K.Khanna 2001 (2) SCC 330 [LQ/SC/2000/1868] the Hon'ble Apex Court has held thus:

"33. While it is true that justifiability of the charges at the stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malice or malafide, motive involved in the matter of issue of a charge-sheet or the authority concerned is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious to do, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court, in the contextual facts, has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings."

16. In Vijay Shankar Pandey vs. Union of India and Another 2014 (10) SCC 589, [LQ/SC/2014/1021] the Hon'ble Apex Court has held thus:

"43. Rule 7 of the Conduct Rules reads as follows:

"7. Criticism of Government.-No member of the service shall, in any Radio Broadcast or communication over any public media or in any document published anonymously, pseudonymously or in his own name or in the name of any other person or in any communication to the press or in any public utterance, make any statement of fact or opinion-

(i) which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government; or

(ii) which is capable of embarrassing the relations between the Central Government and any State Government; or

(iii) which is capable of embarrassing the relations between the Central Government and the Government of any Foreign State:

Provided that nothing in this Rule shall apply to any statement made or views expressed by a member of the service in his official capacity and in the due performance of the duties assigned to him."

44. Clearly, Rule 7 only prohibits criticism of the policies of the Government or making of any statement which is likely to embarrass the relations between the Government of India and a Foreign State or the Government of India and the Government of a State. Allegations of mal- administration, in our opinion, do not fall within the ambit of any of the abovementioned three categories. The entire burden of song in the Writ Petition (C) No.37 of 2010 is regarding mal-administration.

45...

46...

47...

48. Even otherwise, the impugned order, in our opinion is wholly untenable. The purpose behind the proceedings appears calculated to harass the appellant since he dared to point out certain aspects of mal- administration in the Government of India. The action of the respondents is consistent with their conduct clearly recorded in Ram Jethmalani v. Union of India (2011) 8 SCC 1 [LQ/SC/2011/809] . The whole attempt appears to be to suppress any probe into the question of black money by whatever means, fair or foul. The present impugned proceedings are nothing but a part of the strategy to intimidate not only the appellant but also to send a signal to others who might dare in future to expose any mal-administration. The fact remains, that this Court eventually agreed with the substance of the complaint pleaded in Writ Petition (C) No.37 of 2010 and connected matters; and directed an independent inquiry into the issue of black money."

17. In Kameshwar Prasad vs. State of Bihar and Another AIR 1962 SC 1166 [LQ/SC/1962/83] , the Hon'ble Apex court has held thus:

"13. The first question that falls to be considered is whether the right to make a ",demonstration" is covered by either or both of the two freedoms guaranteed by Art. 19(1)(a) and 19(1)(b). A "'demonstration" is defined in the Concise Oxford Dictionary as "an outward exhibition of feeling, as an exhibition of opinion on political or other question especially a public meeting or procession". In Webster it is defined as "a public exhibition by a party, sect or society as by a parade or mass-meeting". Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one's ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech. It has however to be recognised that the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall within the content of Art. 19(1)(a) or 19(1)(b). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by Art. 19(1)(a) and 19(1) (b). It is needless to add that from the very nature of things a demonstration may take various forms; It may be noisy and disorderly, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Art. 19(1)(a) or (b). It can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances.

14...

15...

16...

17...

18. We have rejected the broad contention that persons in the service of government form a class apart to whom the rights guaranteed by Part III do not, in general, apply. By accepting the contention that the freedoms guaranteed by Part III and in particular those in Art. 19(1)(a) apply to the servants of government we should not be taken to imply that in, relation to this class of citizen 'the ,responsibility arising from official position would not by itself impose some limitations on the exercise of their rights as citizens. For instance, S.54(2) of the Income-tax Act, 1922, enacts:

"If a public servant discloses any particulars. contained in any such statement, return, accounts, documents, evidence affidavit, deposition or record, he shall be punishable 'with imprisonment which may extend to six months, and shall also be liable to fine."

Section 128(1) of the Representation of the People Act, 1951, enjoins on every officer, clerk, agent etc., who performs any duty in connection, with the recording or counting of votes at an election shall maintain the secrecy of the voting and shall not communicate to any person any information calculated to violate such secrecy, and visits the breach of the rule by punishment with imprisonment for a term which may extend to three. months or with fine. It cannot be contended that provisions on those or similar lines in these or other enactments restrict the freedom of the officers etc. merely because they are prohibited from communicating information which comes to them in the course of the performance of the duties of their office, to others. The information having been obtained by them in the course of their duties by virtue of their official position, rules or provisions of the law prescribing the circumstances in which alone such information might be given out or used do not infringe the right of freedom of speech as is guaranteed by the Constitution.

19. We would therefore allow the appeal in part and grant the appellants a declaration that R. 4-A in the form in which it now stands prohibiting "any form of demonstrations is violative of the appellants' rights under Art. 19(1)(a) & (b) and should therefore be stuck down. It is only necessary to add that the rule, in so far as it prohibits a strike, cannot be struck down since there is no fundamental right to resort to a strike. As the appellants have succeeded only in part, there will be no order as to costs in the appeal."

18. In D.Thomas Franco Rajendra Dev vs. Disciplinary Authority, division Bench of the Hon'ble Madras High Court has held thus:

"27. Recognising the fact that holding demonstration is a form of expression guaranteed under the Constitution of India, Rule 54(1) bodily incorporated Article 19(2) of the Constitution of India and it specifically pointed out that no Officer shall engage himself or participate in any demonstration which is prejudicial to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign state, public order, decency or morality, or which involves contempt of the court, defamation or incitement to an offence. Rule 66 defines 'misconduct' as breach of any of the provisions of the Rules and shall be punishable under Rule 67.

28. A reading of Rule 50(4), 50(5), 50(6) thus show that it is concerned about the conduct of an Officer of the Bank, that he shall behave at all times with a sense of responsibility, integrity, honesty, devotion and diligence, to ensure that the interests of the Bank are protected. The Rule also enjoins the responsibility on the officer to ensure that others also behave with a sense of devotion. The code of conduct thus prescribed cannot be read as something special to an organisation like a big institution, but one of universal application to every employee employed in an institution, so that the conduct of the business goes in a disciplined way, that there is orderliness to inspire third parties to transact business with them. Thus, an act which causes a dent in or a damage to the reputation or image or goodwill of the bank to undermine the confidence of people having business or proposed to have business in the institution, is certainly an act of misconduct. But, could holding of a demonstration, per se, amount to a misconduct The holding of a demonstration is held to be a constitutional right guaranteed under Article 19 of the Constitution of India. Thus, so long as the same is not violative of Rule 54, such holding of the demonstration certainly stands protected by Article 19, We fail to understand how holding a demonstration, per se, would amount to a misconduct. The respondents do not dispute that the right to hold a demonstration in a peaceful manner is one within the scope of Article 19 of the Constitution of India.

29....

30. Given the fact that the Staff Association is a registered Association and that holding of the post in the Association even by an Officer is not an anathema to holding of the post of a General Manager or an Officer of high order in a Bank, such post in the Union being recognised by the Management itself, in the face of the guaranteed right to hold demonstration as a form of free expression and speech, the imputations are of very generic nature and goes against the very concept of forming a Union as well as holding a peaceful demonstration. While the respondents do not deny that the Union is a registered Union recognised by the Bank, we fail to understand how the participation by an Officer who incidentally holds the post in the governing body of the Union, would go against Rule 50(4), 50(5) and 50(6) of the Rules."

19. This view is reiterated in C.Arasukumar vs. State Bank of India by the Hon'ble High Court of Madras as under:

47. But as rightly contended by the counsel for the Appellants, a government servant or an employee of a public sector institution will not lose his fundamental rights merely because of his holding an employment in that organization. In S.D.Sharma v. Trade Fair Authority of India 1985 II LLJ 193] a division bench of the Delhi High Court upheld the right of the workers to hold demonstrations and shout slogans. In paragraph 28, it was observed as follows:-

"28. ...It is possible that during the course of speech or demonstration some kind of slogans which may not be very proper may have been raised. But then this country recognises the holding of demonstration an though one may not be very happy that sometimes demonstrations may use a language which is not very polite one cannot also ignore that in the heat of movement and when mass of people are raising slogans in support of their demands and more so when they feel that for over two years the demands have not been fulfilled it is possible that some kind of harsh words and slogans may have been raised. But all this is a far cry from the charge which had necessarily to be proved before the petitioner can be held guilty these slogans and that their action was subversive of discipline. One or two slogans even if touching on the border of permissive parameters cannot be torn out of their context and considered in isolation. In order to appreciate the impact of any slogan the total overall picture must be kept in view and when we look at the picture it is peaceful meeting of the employees held in dignified manner raising their demands no doubt also shouting slogans, but mostly in support of their union and demands."

48. In B.R.Singh and others v. Union of India 1989 II LLJ 591. it was held that the publication and distribution of handbills is a recognized fundamental right. The following passage is of relevance:-

"Publishing posters and distributing hand bills is a means to ventilate the grievances of the employees and free speech in our country is recognised as a fundamental right under Article 19(1) of the Constitution subject to reasonable restriction."

49. As rightly contended by the learned counsel for the appellants, the Supreme Court, In Vijay Shankar Pandey v. Union of India & Another 2014(10) SCC 589], took exception to the Union of India taking action against a central government servant for criticising the actions of the government. This decision is pressed into service to contend that the criticism of the government though was forbidden under Rule 7 of the CCS (Conduct) Rules, was still considered as the fundamental right guaranteed under Article 19(1)(a). It was observed in the said decision as under :-

Coming to the 3rd reason given in the IMPUGNED Order that the content of the 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.

35. Rule 17 of the CONDUCT Rules reads as follows:

"17. Vindication of acts and character of members of the service. No member of the service shall, except with the previous sanction of the Government, have recourse to any Court or to the press for the vindication of official act which has been the subject-matter of adverse criticism or attack of a defamatory character.

Provided that if no such sanction is conveyed to by the Government within twelve weeks from the date of receipt of the request, the member of service shall be free to assume that the sanction sought for has been granted to him

Explanation. Nothing in this rule shall be deemed to prohibit a member of the Service from vindicating his private character or any act done by him in his private capacity. Provided that he shall submit a report to the Government regarding such action."

"We fail to understand how this Rule could be said to have been violated, in the background of the allegations contained in the charges framed against the appellant. In our opinion, this rule has no application whatsoever to the allegations contained in the charge-sheet....."

"The respondents consider that a complaint to this Court of executive malfeasance causing debilitating economic and security concerns for the country amounts to inappropriate conduct for a civil servant is astounding."

50. Even in the judgment of the division bench in D.Thomas case (cited supra), to which the Respondent was a party, it was held that merely because an officer had taken part in the lunch hour demonstration, he cannot be dealt with under the service rules and his fundamental right under Article 19(1)(a) is held intact. The division bench judgment was not taken on appeal by the management of SBI and it has become final. Hence it is

necessary to refer certain passages from the said judgement which is as follows :-

"28.

30...

35. Thus, if Rule 50(4), 50(5) and 50(6) requires any reconciliation with Rule 54, it is only such of those conduct which are incompatible to the reputation and goodwill of the bank and offensive of Rule 54, could be called as misconduct for initiating action and nothing else. By so holding, we do not propose to make a wide proposition that all demonstrations are protected. Ultimately, what is misconduct on the holding of the demonstration depends on the facts and circumstances of the case. Yet, a healthy expression or the opposition to a policy or criticism of the policy could only be read as voicing of a view point by a segment of employees and with Article 19 recognising such right as a guaranteed right, we fail to understand the logic of the respondents that holding of such a demonstration has brought disrepute to the Bank or affected the functioning of the Bank, amounting to misconduct...Thus, going by the decision of the Apex Court, the materials available are sufficient enough to hold that the status of the demonstrators as Officers of the Bank does not make their conduct violative of Rule 50(5), 50(6) and 50(7) of the Rules."

51. In view of the above discussion, we do not find any misconduct as having been committed by the Appellants by the publication of the poster in the name of their trade union. The contents of the poster if translated properly does not disclose any misconduct. On the other hand, it is the duty of every citizen to safeguard public properties as enjoined in the fundamental duties imposed on them by Article 51Aof the constitution. Merely because it has exposed some irregularities, that will not affect the commercial interest of the bank as contended by the Respondent. On the other hand, only by such exposures, correctional measures can be taken and the bank can assure the general public that all is well with them. If the bank was of the opinion that the poster has given only about the irregularities they could have always issued a public statement contradicting the stand of the trade union and also the correctional measures taken by them."

20. In Mysore Paper Mills Officers Association Bhadravathi and others vs. Mysore Paper Mills Limited, Bhadravathi and others (2000 (4) L.L.N. 325).', the Hon'ble Apex Court has held that:

"9(f) From the above it is clear that wearing black badge as a mark of protest against the decisions of the management is a misconduct according to the management. The question is, whether wearing black badge in protest against something would amount to 'misconduct'. The straight answer to this question is 'no'. It is a common feature that whenever any management fails to fulfil the demands of the employees or neglects the grievances and problems of the employees or if any adverse decision is taken against them or if any of the officers cause harassment to the subordinates, the same will be protested by various means, such as conducting demonstrations by raising slogans, taking out processions, gheraoing, tools/pen down strike etc. Wearing black badge is also one of the kinds of protest that can be exhibited by expressing their feelings to the Management, which are constitutionally recognised rights to the petitioners under Article 19(1)(a) to (c) of the Constitution of India. The same cannot be considered as 'misconduct' for any reason. Normally, in such circumstances the protesters merely wear black badges and will engage in their duties without causing any sabotage to the property of the establishment or unit. No harm is caused to anybody by wearing badges by the petitioners 2 and 3 to express their feelings to the decisions of the Management that were affecting their fundamental rights and statutory rights of them and members of the first petitioner's Association. Except wearing black badge in protest against something, no other untoward incident had taken place. Such being the position, wearing of black badge cannot be termed as misconduct as alleged against the second and third petitioners. Therefore, it will not be an act of subversive of discipline or good behaviour.

(g) Normally, such protests of the petitioners and other officers by wearing black badges will be made by all the employees en masse. If the same is construed as misconduct, it amounts to blatantly violating the fundamental and statutory rights of the officers and the employees of the company and it also amounts to unfair labour practice. The managements cannot and should not expect from its officers and employees no protest can be made by them against any of their actions that would affect the fundamental and statutory rights. Whenever something appears to the officers and employees with regard to either the decision or action of the management would affect their rights normally there would be protests against such unreasonable and unjustifiable decisions of the management, such action of the officers resorting to any constitutional methods referred to above shall not constitute misconduct, much less the alleged misconduct against the petitioners 2 and 3. Exhibiting protest against such wrong or arbitrary, unreasonable and unjustifiable decisions of the management should not be considered as 'misconduct'. Reliance was placed by Mr. M.C. Narasimhan, learned Counsel for the petitioners on the judgment in case of Kameshwar Prasad, supra, for the proposition that right to demonstrate by the Government employees is a part of Article 19(1)(a) and (b) of the Constitution of India. The relevant paragraphs of the judgments of the said case are extracted as hereunder:

"12. In our opinion, this argument even if otherwise possible, has to be repelled in view of the terms of Article 33. That Article selects two of the services under the State, members of the armed forces and forces charged with the maintenance of public order and saves the rules prescribing the conditions of service in regard to them - from invalidity on the ground of violation of any of the fundamental rights guaranteed by Part III and also defines the purpose for which such abrogation or restriction might take place, this being limited to ensure the proper discharge of duties and the maintenance of discipline among them. The Article having thus selected the services members of which might be deprived of the benefit of the fundamental rights guaranteed to other persons and citizens and also having prescribed the limits within which such restrictions or abrogation might take place, we consider that other classes of servants of Government in common with other persons and other citizens of the country cannot be excluded from the protection of the rights guaranteed by Part III by reason merely of their being Government servants and the nature and incidents of the duties which they have to discharge in that capacity might necessarily involve restrictions of certain freedoms as we have pointed out in relation to Article 19(1)(e) and (g)."

21. In the case of the Chief General Manager and others vs. K.Gururajan ILR 2004 KAR 1002, the Hon'ble High Court of Karnataka has held thus:

"7. Rule 3 of the Central Civil Services (Conduct) Rules, 1964 requires every Government servant at all times to (i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) do nothing which is unbecoming of a government servant. Rules 7 of the said conduct Rules deals with Demonstration and Strikes and provides that no Government servant shall -

(i) engage himself or participate in any demonstration which is prejudicial to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or which involves contempt of Court, defamation or incitement to an offence, or

(ii) resort to or in any way abet any forum of strike or coercion or physical duress in connection with any matter pertaining to his service or the service of any other Government servant.

The term "strike" is not defined in the Conduct Rules. But by Office Memorandum No. 25/23/66-Ests (A) dated 9-12-1966, it has been defined as meaning' refusal to work or stoppage or slowing down of work by a group of employees acting in combination and includes--

(i) mass absention from work without permission (which is wrongly described as "mass casual leave");

(ii) refusal to work overtime where such overtime work is necessary in public interest;

(iii) resort to practices or conduct which is likely to result in or results in the cessation or substantial retardation of work in any organization. Such practices would include, what are called 'go- slow', 'sit-down', 'pen-down', 'stay-in', 'token', 'sympathetic' or any other similar strike; as also absence from work for participation in a Bandh or any similar movement."

The circular (No. G.I. Ministry of W & HVA No. 366) dated 106-1969 prohibits holding of meeting/demonstrations by any Government servant without permission, within his office premises and warns that anyone violating the said instructions will be liable to disciplinary action.

8. The concept of 'strike' is cessation of work, or refusal to work fully or partly, in any manner, when the employee is duty bound to work. It follows therefore that a person who is on sanctioned leave, cannot by any stretch of imagination be said to participate in a 'strike; as he neither refuses to work nor stops or slows down his work.

9. It is pointed out that what is prohibited is not only 'strike', but any form of protest and participation in certain specified activities. If an employee is not guilty of participating in a 'strike' in the accepted sense, then it is for the employer to specifically allege and establish that the employee did something which is prohibited or did not do something which he was required to do, and thereby committed a misconduct. Let us now see whether what is alleged against the respondent is capable of being construed as a misconduct.

10. The respondent has not participated in any demonstration which is prejudicial to the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, Public Order, decency or morality or which involves Contempt of Court, defamation or incitement to an offence. Therefore, he has not violated Rule 7(i) of the Conduct Rules. In fact that is not the charge.

11. The Respondent is charged by alleging that he committed a misconduct by participating in a hunger strike when he was on sanctioned leave and that violates Rules 7(ii) of the Conduct Rules. But, the Respondent did not resort to or abet any form of strike (as defined in the OM dated 9-12-1966) or coercion on physical duress. Nor did he participate in any meeting or demonstration or other disruptive activity within his office premises. In this case, what has been alleged and admitted is participation of the respondent in a peaceful hunger strike held outside the office premises on a day (30-10-2000) when he was on leave. Participation by an employee in a peaceful hunger strike held outside office premises, on a day when the employee was on sanctioned casual leave does not fall under Rule 7 of CCS (Conduct) Rules."

22. In Union of India & Another vs. Kunisetty Satyanarayana 2006 (12) SCC 28, [LQ/SC/2006/1136] the Hon'ble Apex court has held thus:

"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 [LQ/SC/1995/1185] , Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467 [LQ/SC/2004/40] , Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Daft Sharma and another AIR 1987 SC 943 [LQ/SC/1987/250] 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. 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 any one. 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. We are conscious that it is well settled by catena of decisions of the Hon'ble Apex Court that ordinarily no challenge to the charge sheet is maintainable. It is only when a final order imposing some punishment or otherwise adversely affecting the party is passed, that party is said to have any grievance, but in very rare and exceptional cases, a charge memo could be quashed, if it is found to be wholly without jurisdiction or for some other reason if it is wholly arbitrary and illegal. Division Bench of the Hon'ble Madras High Court in Thomas Franco Rajendra Devi having considered the judgment of Kunisetty Satyanarayana 2006 (12) SCC 2 supra; (2012) STPL (Web) 685 SC (life Insurance Corporation of India V. A.Masilamani and AIR 1969 SC 966 [LQ/SC/1969/41] (Railway Board V. Niranjan Singh) observed that "normally on the charge memo issued, the Court should be hesitant to interfere under Article 226 of the Constitution of India, given the fact that a delinquent Officer will always have a right of defence in the departmental proceedings. However, when on the admitted facts, the proceedings appear ex-facie discriminatory in character and that there are no specific complaints of misconduct and that the allegations of misconduct flow only from the general provisions regarding the code of conduct in relation to the official status of the appellants, who incidentally held the post of President and General Secretary of the Union, which is recognised by the respondents too, we do not find any ground to reject the case of the appellants at the stage of the charge memo". Principles of law enunciated by the Hon'ble Apex Court in A.L.Kalra V. The Project and Equipment Corporation of India Ltd. AIR 1984 SC 1361 [LQ/SC/1984/132 ;] ), Kameshwar Prasad supra and O.K.Ghosh and another V. E.X.Joseph AIR 1963 SC 812 [LQ/SC/1962/352] ), are also relied upon. In the result, the charge memo has been quashed allowing the Writ Appeal with a direction to the respondent therein, that no further proceedings be taken up in the inquiry. This judgment is squarely applicable to the facts of the present case.

24. Similarly as observed by the Hon'ble High Court of Karnataka in K.Gururajan ILR 2004 KAR 1002 supra, it follows that a person who is on sanctioned leave cannot by any stretch of imagination be said to participate in a strike; as he neither refuses to work or stops or slows down his work. There is no cessation of work. The applicant was admittedly on sanctioned leave on 29.07.2022 and 30.07.2022. The applicant being the President of NIMHANS Association in his capacity as President of the Association upon receipt of the complaint from one Ms.Sindu, Bio-Medical Engineer and member of the NIMHANS Association against the Registrar, who was functioning in in-charge capacity, along with office bearers of the Association, by sitting outside the premises of the chamber of the Respondent, has conducted peaceful demonstration. This demonstration would fall within the freedoms guaranteed by Article 19(1)(a) and 19(1)(b). The charge memo do not indicate any violent act or criticism against the Government made by the applicant to disrepute the respondent institute.

25. The news article of 'Time of India' reads as under:

"Nimhans staff protest against registrar. Bengaluru: Employees of Nimhans went on a strike in protest against what they claimed the registrar's 'rude and unacceptable behavior towards a 'woman employee'.

They said the registrar had used words like "you people" while speaking to the employee in the presence of another person. In a letter to the Nimhans director, they asked if the phrase was used to indicate her caste, creed or position or targeted towards a group or section among the employees.

The employees' association demanded the registrar's removal. Nimhans director Pratima Murthy said the matter is being investigated."

26. The aforesaid article nowhere specifically refers to the applicant. On the other hand, the article refers to the NIMHANS Director, Ms.Pratima Murthy who appears to have interacted with the reporters. One of the photograph placed on record by the respondent demonstrates about ten people sitting in the portico, another photograph of five people sitting against the retaining wall in the portico. Thus, all the photos placed on record demonstrates the same. In the light of the judgments referred to above, the peaceful demonstration held by the applicant, in our considered view, cannot be construed as misconduct and the same would not come within the ambit of Rule 7 and 9 of the Rules, as alleged in the charge memo impugned. Moreover, in the background of the case narrated above, in our considered view, it appears an element of impelling reason is involved in issuing the charge memo by the respondent and the enquiry would be a mere farcical show. Hence, we deem it appropriate to interfere at this stage in the interest of justice.

27. It is well settled that the interim Order merges with the final order. Given the circumstances, principles of res-judicata is not applicable, more particularly in the light of the directions issued by the Hon'ble Apex Court while dismissing the SLP No.22999/2022 preferred by the respondent against the interim order passed by the Hon'ble High Court of Karnataka in W.P.No.22765/2022 wherein, it is categorically observed thus:

"Since the petition arises out of purely an interlocutory order, we are not inclined to interfere with the impugned order. The special leave petition is, accordingly, dismissed.

However, we request the Division Bench of the High Court to decide the matter as expeditiously as possible, in any case within two months from today.

Needless to state that all questions including the maintainability of the petition are kept open for adjudication."

Keeping the same in mind we have analysed the matter with reference to the judgments cited supra, as the Hon'ble High Court of Karnataka has disposed of the said W.P.No.22765/2022 with a direction to this Tribunal to dispose of this OA on merits. In our considered opinion, the allegations made against the applicant in the charge memo (Annexure A14) cannot be construed as 'misconduct' warranting disciplinary proceedings. It is only a peaceful demonstration protected under Article 19(1)(a) and 19(1)(b) of the Constitution.

28. For the reasons aforesaid, we find merit in the OA.

29. Accordingly, charge memo dated 09.09.2022 (Annexure A14) is quashed. Consequently, the impugned orders at Annexure A16 and Annexure A17 of even date: 15.10.2022 appointing the presenting officer and the inquiry officer and all further proceeding thereon against the applicant are quashed.

30. Resultantly, OA is allowed. No order as to costs.