Madras High Court
K.Sukumar vs The Principal Secretary on 25 January, 2019
Author: S.Manikumar
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 25.01.2019
C O R A M:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
Writ Appeal No.222 of 2019
C.M.P.No.2357 and 2358 of 2019
K.Sukumar ... Appellant
v.
1.The Principal Secretary
State of Tamil Nadu
Public Works Department, Secretariat,
Fort St George, Chennai 600 009.
2.The Engineer in Chief and Chief Engineer
[General], PWD, Water Resources
Department, Chepuak, Chennai 600 005.
3.The Chief Engineer [Plan Formulation]
Water Resources Department, PWD
Chepauk, Chennai 600005.
4.The Superintending Engineer
PWD, WRD, Design Circle,
Chepauk, Chennai 600005.
http://www.judis.nic.in
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5.The Executive Engineer
Public Works Department
Water Resources Department
Soil Mechanic and Research
Division, Chepauk, Chennai 600 005.
6.S.Eswari,
Assistant Executive Engineer,
Central Quality Control Laboratory,
S.M. & R. Concrete Sub-Division,
Taramani, Chennai 600 113. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent against
the order dated 05.12.2016, passed in W.P.No.42660 of 2016.
For appellant ... Mr.V.Thillaikarasi
For respondents ... Mr.P.S.Sivashanmuga Sundaram
Special Government Pleader
JUDGMENT
(Judgment of the Court was delivered by S.Manikumar,J) Challenging the order, dated 05.12.2016, made in W.P.No.42660 of 2016, the appellant/writ petitioner has filed the instant writ appeal.
2. It is the case of the appellant that he was appointed as Assistant Engineer, in the services of the Public Works Water Resources http://www.judis.nic.in 3 Department and got promotion as the Assistant Executive Engineer. While working in the said capacity in Concrete Sub-Division, Taramani, Chennai-113, he was issued instructions to collect the testing charges of concrete cubes, as fixed by the Principal Secretary, Public Works Department, Chennai and Engineer in Chief and Chief Engineer (General), Public Works Department, Chennai, the respondents 1 and 2 herein. The Assistant Engineer, viz., Ms.Hemalatha, took exception to the fixation of charges, as per the Government direction, on extraneous consideration. As there is malpractice in purchase of laptops and camera from Electronic Corporation of Tamil Nadu [ELCOT], the same was brought to the notice of the higher officials, by the petitioner, for taking appropriate action. Further, Group 'C' and Group 'D' employees were also aggrieved by the deduction of the excess pay, which was wrongly paid.
3. According to the appellant, the Assistant Engineer, Ms.Hemalatha, joined hands and was instrumental in bringing a false news item, dated 01.03.2016, in Dinakaran Daily Newspaper that the workers of concrete section were harassed. In this regard, he submitted a representation, dated 01.03.2016, stating that on account of false news, http://www.judis.nic.in 4 he got shock and mental agony, and further stated that before publishing the news item, the News Daily ought to have obtained prior permission from the concerned official in terms of the government rule and since they have not done so, prayed the Engineer-in-Chief and Chief Engineer (General), Public Works Department, Water Resources Department, Chennai, 2nd respondent herein, to take appropriate action against the concerned person, and also sought permission to a file case against the Editor of Dinakaran Tamil News Daily.
4. However, the Executive Engineer, Public Works Department, Water Resources Department, Soil Mechanic and Research Division, Chennai, 5th respondent herein, has appointed the 6th respondent, Assistant Executive Engineer, Central Quality Control Laboratory, S.M. & R Concrete Sub Division, who is ten years' junior to the appellant, to conduct a preliminary enquiry into the facts and circumstances about the news item and in this regard, the appellant has also given a complaint to the National Commission for Schedule Castes, Chennai-600
006. Engineer in Chief and Chief Engineer (General), Public Works Department, Chennai, the 2nd respondent herein, after obtaining an http://www.judis.nic.in 5 adverse report from Ms.S.Eswari, Assistant Executive Engineer, Central Quality Control Laboratory, Chennai, the 6th respondent herein, filed her counter before the Commission and after the receipt of the same, the Commission has forwarded its response to the appellant, vide their communication, dated 24.06.2016 in F.No.9/64/2016 Rep [SG].
5. After the receipt of the said report, the appellant has submitted a representation, dated 28.09.2016, to the Principal Secretary, Public Works Department, Secretariat, Chennai, 1st respondent herein, stating that the enquiry reports, dated 04.03.2016 and 27.04.2016 submitted by the 6th respondent as well as Mr.Pandiyan, Executive Engineer, are against the principles of natural justice and therefore, the said reports have to be quashed and appropriate disciplinary proceedings have to be initiated against the concerned erring officials for giving a compromised and camouflaged report. As there was no response, W.P.No.42660 of 2016, has been filed to quash the discreet enquiry, dated 04.03.2016 and 27.04.2016, on the file of the 6th respondent.
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6. Considering the facts and circumstances of the case and the representation of the appellant, dated 01.03.2016, submitted to the Engineer-in-Chief and Chief Engineer (General), Public Works Department, Water Resources Department, Chennai, 2nd respondent herein, this Court, by order, dated 05.12.2016, dismissed W.P.No.42660 of 2016, as follows:
"8 A perusal of the representation would disclose that the petitioner is under the impression that for publishing a news item, a News Daily has to obtain permission from the concerned officials in accordance with the Rules. However, it is not brought to the knowledge of this Court as to the relevant rules which prescribe the thing to be done in a manner sought for by the petitioner. The petitioner in the above cited representation has also sought for permission of the Government to proceed against the News Daily and in the considered opinion of the Court, he need not seek permission for the reason that if he is aggrieved that the news item published in the News Daily is a false news, he is always at liberty to work out his remedy in accordance with law before the competent Forum. The respondents, on receipt of the representation, ordered a preliminary enquiry and report http://www.judis.nic.in 7 was submitted and simultaneously, the petitioner has also moved the National Commission for Schedule Castes, Chennai-6, expressing certain grievance and the said Commission has called for response from the 2nd respondent and the 2nd respondent has also submitted his response in the form of letter dated 06.06.2016 in Letter No.CII[2]/1478/2016-5 and a copy of the same was also furnished to the petitioner by the said Commission.
9. The 2nd respondent in his communication dated 06.06.2016, addressed to the National Commission for Scheduled Castes, Chennai-600006, has also indicated that if the petitioner feels hurt by the Newspaper Report, in his personal capacity, it is open for him to seek appropriate legal remedy, for which sanction of the Department is not necessary and also pointed out that there were misunderstanding between the head and the staff of the Sub Division and in order to maintain smooth functioning of the Department, the petitioner was transferred from Concrete Sub Division and posted as Research Officer in the same premises. It is further stated by the 2nd respondent that "there is no denying the fact that there were allegations and counter allegations over certain issues which were all administrative issues and deserves action on merits in accordance with facts and http://www.judis.nic.in 8 established rules. There is absolutely no discrimination on the basis of caste in taking action against those who have violated rules" and therefore, refuted the allegation that the petitioner has not been discriminated either on the basis of the caste or on any other grounds.
10. It seems that the National Commission for Schedule Castes is also satisfied with the said response and forwarded the same to the petitioner vide their letter dated 24.06.2016. In the light of the stand taken by the 2nd respondent in his communication dated 06.06.2016, addressed to the National Commission for Schedule Castes, Chennai-6, coupled with the representation dated 01.03.2016 submitted by the petitioner to the 2nd respondent, the petitioner is not entitled to any relief.
11. The petitioner in the affidavit filed in support of this writ petition, has also made allegations against one Ms.Hemalatha, Assistant Engineer and she has not been arrayed as a party to this writ petition and that apart, the petitioner in his representation dated 28.09.2016 addressed to the 2nd respondent has also made allegations against one Mr.Pandiyan and the said official is also not made as a party in this writ petition. But, the Enquiry Officer, who had conducted the preliminary enquiry, has been arrayed as 6th http://www.judis.nic.in 9 respondent in her personal capacity and not in the official capacity. In the considered opinion of the Court, the prayer sought for is wholly misconceived and therefore, the writ petition lacks merit and substance."
7. Being aggrieved by the order made in W.P.No.42660 of 2016, dated 05.12.2016, instant writ appeal is filed on the grounds inter alia that,
(i) Writ Court erred in Law in holding that no rule was brought to his knowledge which stipulated that the prior permission of the person against whom the news items have to be published. It is inherently implicit that Principal of Audi-Alteram Partem applies equally to the publication of report in the Press and it is common practice followed by the media and approved by the Press Council of India that, before publishing any news item containing allegations against a person, that particular person has to be contacted for his comments on those allegations leveled against him and his comments have to be published along with allegations.
(ii) Writ Court ought to have held that the discrete enquiry conducted and the report submitted pursuant thereto against the appellant so as to prejudicially affect his http://www.judis.nic.in 10 promotional opportunity and further career progression unless those allegations are clearly and categorically proved in a manner known to law.
(iii) Writ Court failed to consider that giving a statement to the press and causing the publication of matter pertaining to the official discharge of the duties by any employee of the Government is an enumerated misconduct under Rule 11 of the Tamil Nadu Government Servant's Conduct Rules, 1973. As such the persons who are responsible for causing publication of the news items are guilty of commission of misconduct under the services rules. Hence, an enquiry should have been ordered only against those persons and not against the appellant.
(iv) Writ Court erred in law holding that the National Commission of Scheduled Caste was satisfied with the reply given by persons who caused the publication of the news items. When the matter is still pending with National Commission. The National Commission has not come to any conclusion and hence, the finding to the contrary contained in the order under Appeal is actually erroneous.
(v) Writ Court ought to have seen that the discrete http://www.judis.nic.in 11 enquiry report was not furnished to the appellant despite his request and hence no punishment could have been awarded on this basis."
8. Though Mr.V.Thillaikarasi, learned counsel for the appellant made submissions on the grounds raised, we do not any find valid ground to interfere with the order impugned in the writ appeal, for the reason that the appellant is mainly against the news item published in a Newspaper.
9. Respondents have categorically stated that it is open to the appellant to take action against the newspaper and others, if he so chooses to do so, and no prior permission is required from the department. Acting on the representation, after conducting a preliminary enquiry, conducted, the Engineer in Chief and Chief Engineer (General), Public Works Department, Chennai, the 2nd respondent herein, has also sent a letter dated 06.06.2016, to the National Commission for Scheduled Castes and Scheduled Tribes.
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10. Writ Court has also observed that some of them, against whom allegations have been, have not been impleaded as parties, in the writ petition. There is no error in the order impugned in this appeal, warranting interference.
11. For the abovesaid reasons, writ appeal is dismissed. No Costs. Consequently, the connected civil miscellaneous petitions are closed.
(S.M.K.,J) (S.P.,J) th 25 January 2019 Index: Yes/No Internet: yes/No skm/dm http://www.judis.nic.in 13 To
1.The Principal Secretary State of Tamil Nadu Public Works Department, Secretariat, Fort St George, Chennai 600 009.
2.The Engineer in Chief and Chief Engineer [General], PWD, Water Resources Department, Chepuak, Chennai 600 005.
3.The Chief Engineer [Plan Formulation] Water Resources Department, PWD Chepauk, Chennai 600005.
4.The Superintending Engineer PWD, WRD, Design Circle, Chepauk, Chennai 600005.
5.The Executive Engineer Public Works Department Water Resources Department Soil Mechanic and Research Division, Chepauk, Chennai 600 005.
http://www.judis.nic.in 14 S.MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
skm/dm Writ Appeal No.222 of 2019 25/01/2019 http://www.judis.nic.in