Madras High Court
S.Thiru Arasu vs Nlc India Ltd on 9 February, 2018
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.02.2018
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
W.P.No.33357 of 2017
S.Thiru Arasu .. Petitioner
-vs-
1. NLC India Ltd.
rep. by its Chairman & Managing Director
Corporate Office, Block 1
Neyveli-1
2. The Chief General Manager
Mine IA, Unit Head
Mines Office
NLC India Ltd., Block 26
Neyveli-3
3. The Deputy General Manager (Lignite Zone Mine IA)
Mines Office
NLC India Ltd., Block 26
Neyveli-3
4. The Chief Manager (HOHR)
Mines Office
NLC India Ltd., Block 26
Neyveli-3
5. The Chief Manager
Bottom Bench Mine IA
NLC India Ltd.
Neyveli-1 .. Respondents
Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records pertaining to the charge memo dated 06.07.2017 in Memo No.Mine-IA/HR/DA/28/2017 and the enquiry notice dated 29.08.2017 in Letter No.HOHR/MIA/DA/28/2017 issued by the fifth respondent and the consequential proceedings pursuant to the charge memo and enquiry notice, quash the same.
For Petitioner :: Ms.R.Vaigai
Senior Counsel
for Mr.R.Krishnaswamy
For Respondents :: Mr.N.Nithiyanandam
ORDER
This writ petition is directed against the impugned charge memo dated 6.7.2017 issued by the disciplinary authority/the Chief Manager, Bottom Bench, Mine IA, Neyveli Lignite Corporation India Limited, Neyveli. The petitioner, who was appointed in the Neyveli Lignite Corporation India Limited as IW.Grade I, was given promotion as Technician Gr.III(C), Technician Gr.II(B) and Technician Gr.I(A) under the time bound promotion scheme and further promoted as Senior Technician Grade II and Grade I on 1.9.2004 and 1.9.2008 respectively. He was again further promoted as Chief Technician on 1.9.2012. He is also one of the elected Vice Presidents of CITU NLC Labour Staff Union, which is one of the recognised unions. Since the news about the outsourcing of mining work by the Neyveli Lignite Corporation Limited appeared in a daily newspaper Theekathir and subsequently uploaded in the timeline of the petitioner's facebook account by one of his friends, the disciplinary authority/fifth respondent herein, mistaking that the petitioner had posted some derogatory remarks and comments in his facebook account which is open to public view containing unverified and unsubstantiated allegations criticising the policies of the Neyveli Lignite Corporation India Limited including certain contracts awarded for outsourcing overburden removal in mines to private contractors, issued a charge memo on 6.7.2017 in Memo No.Mine-IA/HR/DA/28/2017 levelling five charges, which are given as under, CHARGE NO.1 Shri S.Thiruarasu, CPF No.36562, Chief Technician, Mine-IA has posted derogatory remarks and comments in his Facebook account which was open to public view containing unverified and unsubstantiated allegations, criticizing NLCIL's policies and certain decisions including certain contracts awarded for outsourcing overburden removal in Mines to private contractors M/s BGR and M/s Mahalakshmi, making baseless allegations of irregularities calling for CBI investigation on the issue which exposed the company's reputation and prestige to the risk of great damage impacting its business.
By posting the disparaging comments on his Facebook account, he criticized policy and business decision of the company without any basis or information and thereby he has propagated rumor and false information through online social media which is open to public view without obtaining any permission from the Management contravening the provisions of the Standing Orders.
CHARGE NO.2 Shri S.Thiruarasu, CPF No.36562, Chief Technician, Mine-IA has posted derogatory remarks and comments in his Facebook account containing false and unverified allegations against the Hon'ble Chief Minister of Uttar Pradesh portraying him as a member of RSS, strong supporter of a particular religion and a person who always offers controversial remarks which affray the public and which is highly defamatory in nature.
By posting the disparaging comments on his Facebook account, he defamed person & character of Hon'ble Chief Minister of Uttar Pradesh portraying him as a fake religious guru and has become Chief Minister merely by reason of being a supporter of RSS and not by contesting in assembly elections, which amounts to an act subversive of discipline and in contravention to the instructions of the management.
CHARGE NO.3 Shri S.Thiruarasu, CPF No.36562, Chief Technician, Mine-IA has posted derogatory remarks and shared comments in his Facebook account carrying defamatory allegations and personally abused the Hon'ble Prime Minister of India by equating him with Adolf Hitler. He has also criticized that the Media i.e., of acting at the whims and fancies of the Corporate World, which is supported by Mr.Narendra Modi led Govt.of India, with an intent to defame the person and character of the Hon'ble Prime Minister and to malign the reputation of the Central Government in general, which amounts to an act subversive of discipline and in contravention to the instructions issued by the Management.
CHARGE NO.4 Shri S.Thiruarasu, CPF No.36562, Chief Technician, Mine-IA has posted derogatory comments in his Facebook account page carrying false accusations and allegations against the Hon'ble Governor of Tamilnadu intentionally insulting and defaming his office and character alleging that the Hon'ble Governor of Tamilnadu has remained indifferent and continued his stay in New Delhi without taking any action for a stable political situation in Tamilnadu. He has also posted disparaging comments demanding Hon'ble Governor should act without getting involved in any gambling thereby questioned the scope and authority of the highest office of the State with an intent to provoke breach of peace in the State, which amounts to an act subversive of discipline and in contravention to the instructions issued by the Management.
CHARGE NO.5 Shri S.Thiruarasu, CPF No.36562, Chief Technician, Mine-IA indulged in the act of cyber stalking by spreading rumors and false and unverified allegations against NLCIL and the Government with derogatory remarks/comments on his facebook account page, to disrepute the company's image and prestige in the public. By posting such false and misleading information in his facebook account open to the employees and public at large about the company, the company's reputation and image was exposed at stake amongst the stakeholders and public in general, which amounts to an act subversive of discipline and in contravention to the instructions issued by the Management., with a direction to submit his explanation to all those five charges within three days.
2. Assailing the validity of the charge memo, Ms.R.Vaigai, learned senior counsel for the petitioner heavily contended that when the petitioner is not a Government servant, no conduct rules can prohibit him from criticising either the Prime Minister of India or the Chief Minister of U.P., or the former Governor of Tamil Nadu. When the petitioner is the Vice President of CITU NLC Labour Staff Union, which is also one of the recognised unions, the union is duty bound not only to voice and redress the grievance of the workmen, but also the union is entitled to submit the demands, to hold negotiations with the management, to reach a settlement with the management either bilaterally or trilaterally before the Labour Department. Only in order to carry out the mining operations, the respondent Corporation have made huge investments for the purchase of various kinds of conventional earth moving equipments and specialised mining equipments, conveyors etc., and for erection, maintenance of plants and machineries. Besides, when the contract labour system in the mining and other allied works in coal mines is prohibited by the Government of India, Ministry of Labour in its notification issued in S.O.Nos.498 & 2063 dated 1.2.75 and 21.6.88 respectively, which were issued under Section 10 of the Contract Labour (Regulation & Abolition) Act, 1970, a settlement was reached in the year 1995 and pursuant to the orders issued by this Court, the respondent Corporation has prepared the seniority list of contract labourers containing the names of 10,632 labourers for absorption in the respondent Corporation. When the said process is still going on, the respondent Corporation, contrary to the prohibition notification, affecting the employment and other conditions of service of serving employees, is attempting to entrust the mining work in Mine II, Old S4 area, BBS North Flank area to the outside agency through outsourcing. Objecting to the above method of the respondent Corporation, the CITU NLC Labour and Staff Union, finding no reply from the management, has raised an industrial dispute before the Assistant Labour Commissioner (Central), Puducherry on 30.12.2016 and the conciliation proceeding is still pending. However, since the respondent Corporation has made an attempt to outsource the mining work in the mines during the pendency of the conciliation proceedings without getting any prior permission, the union filed W.P.No.1096 of 2017 to quash the tender notification dated 2.12.2016 with an additional prayer not to outsource any work in all the three mines and also not to alter the service conditions of the workmen adversely in any manner till the dispute raised before the Assistant Labour Commissioner (Central) is either settled or adjudicated. The said writ petition is also pending with the issuance of notice to the other side. In this regard, the State committee also expressed its concern and wrote an article in the Theekathir daily and the said news about the outsourcing of mining work by the NLC was uploaded in the timeline of the petitioner's facebook account by one of his friends. The said messages were also forwarded from one account to another in the whatsapp and it is unknown as to who was the author of those messages forwarded in the whatsapp. Moreover, when some of his friends in his facebook group had posted these messages in the timeline of his facebook account, the fifth respondent cannot issue the charge memo dated 6.7.2017 alleging that the petitioner has posted derogatory remarks and comments in his facebook account containing false allegations criticising the policies of Neyveli Lignite Corporation India Limited including certain contracts awarded for outsourcing overburden removal in mines to private contractors. As the impugned charge memo and the order for holding enquiry have been issued without jurisdiction, they are violative of Article 14 of the Constitution of India.
3. Adding further, Ms.R.Vaigai submitted that the impugned charge memo and the consequential enquiry notice issued against the petitioner for the alleged posting of articles on his face book account is unconstitutional, for the simple reason that they sought to deprive of and take away the petitioner's right to freedom of expression, which is a guaranteed fundamental right to the citizens under Article 19(1)(a) of the Constitution. The charge memo issued under the Standing Orders are only a subordinate legislation, therefore, they cannot take away the right guaranteed under Article 19(1)(a) of the Constitution, because these rules and standing orders or instructions cannot override the Constitution. So far as the criticism of the policies of the Government is concerned, it is prohibited only for the employees of NLC India Limited and the government servants and so far as the petitioner and other workmen are concerned, they are governed by the Certified Standing Orders. Since the NLC Employees Conduct Rules cannot be made applicable, the respondents cannot take any disciplinary action by issuing the impugned charge memo for the alleged criticism of the policies of the Government and the respondent Corporation. Even in case of government servants who are governed by the similar conduct rules like NLC Employees Conduct Rules, the Apex Court and also this Court have repeatedly held that the rules prohibiting totally such fair and constructive criticism when it is part of the right to freedom of expression are unconstitutional and violative of Article 19(1)(a) read with Article 13(2) and further held that the rules framed under Article 309 cannot override the rights guaranteed under Article 19(1)(a).
4. Continuing further, Ms.Vaigai, the learned senior counsel submitted that when the union has already raised an industrial dispute on the same issue against the illegal outsourcing of the mining work, they have also given a criminal complaint requesting to take criminal action against the respondents for employing contract labourers in mining work with a prayer for absorption of those contract employees. When a criminal complaint against the respondents was filed for violation of the Certified Standing Orders and for having issued instructions and taking action against the workmen for their legitimate trade union activities without getting amendment to the Standing Orders as provided in law, during the pendency of these proceedings, the respondents are trying to precipitate the above proceedings and they are trying to prevent the petitioner and other members from pursuing the above proceedings, which is a clear case of mala fide and vindictive action. Ms.Vaigai emphatically submitted that the postings found in the petitioner's facebook account were not posted by him and he is not the author of the same. Hence the respondents have no power or jurisdiction to issue the impugned charge memo and initiate disciplinary proceedings against him. Moreover, the charge nos.1 and 5 would not amount to writing or disclosure of any information or document relating to the company. Taking support from a judgment of the Apex Court in the case of Vijay Shankar Pandey v. Union of India and another, (2014) 10 SCC 589, it was argued that the Apex Court has held that making allegations of maladministration do not fall within its ambit.
5. The learned senior counsel further contended that the charge no.5 alleging the petitioner that his conduct in posting disparaging comments on his facebook account are contravening the instructions issued by NLCIL management and in breach of the orders contained in the NLCIL Standing Order Nos.25 and 33 are no way connected to the establishment of the respondent Corporation, for the reason that the alleged acts would not constitute misconduct under the Standing Orders 25 and 46 and also 25 and 33. Therefore, the petitioner also submitted a detailed explanation on 28.7.2017 requesting them to drop all further proceedings, which have not evoked any response. Moreover, when the impugned charge memo is not supported with any document and besides the presiding officer also, during the course of the enquiry, informed the enquiry officer that there was no witness on the side of the management. That shows that without any document and management witness, they cannot simply issue the charge memo.
6. Continuing further, the learned senior counsel contended that the charges levelled against the petitioner under charge nos.2 to 5 are no way connected to his employment. Hence, when the charge memo itself has been issued without supporting document and witness to substantiate the same, the consequential initiation of the disciplinary proceedings being without jurisdiction and without any basis, should be quashed by this Court. Taking heavy reliance on the Division Bench judgment of this Court in the case of G.Arasukumar and others v. State Bank of India rep.by its Assistant General Manager, Chennai and others, 2015-3-LW 849, the learned senior counsel contended that the law has been well settled by this Court that the publication or distribution of hand bills is a recognised fundamental right. On this basis, this Court has held that the action of the trade union and its office bearers in putting up posters cannot be detrimental to the interest of the bank if the substance of those allegations are not denied. Merely for the reason of criticising the policies of the Government and the respondent Corporation is made, without keeping in mind that the industrial growth leading to economic prosperity depends wholly on the health of the employers and employees, to convey a message that an employee has no right to write letters containing defamatory passages and there is no fundamental right vested on him under Article 19(1)(a) of the Constitution, the present charge memo has been issued. A perusal of the contents of the charge nos.1 & 2 that the petitioner had posted derogatory remarks and contents in his facebook account which is open to public view, do not disclose any misconduct. Merely because he has exposed some irregularities, that will not affect the commercial interest of the respondents as alleged in the charge memo. On the other hand, only by such exposures, correctional measures can be taken and the respondents can assure the general public that all is well with them. The respondents being a public authority, owe a duty to disseminate information even suo motu. Therefore, the respondents need not unnecessarily feel touchy about some irregularities in the public involved matters in outsourcing the mining work.
7. Again referring to the explanation given by the petitioner on 28.7.2017 taking a stand that he was prepared to take part in the enquiry to be held by the respondents to substantiate his conduct in posting derogatory remarks and comments in his facebook account and thereafter coming to this Court to quash the impugned charge memo, placing reliance on the judgment of the Apex Court in Olga Tellis and others v. Bombay Municipal Corporation and others, (1985) 3 SCC 545, the learned senior counsel for the petitioner submitted that even a written undertaking given by the petitioner agreeing inter alia to take part in the enquiry, cannot be put against the petitioner. When a similar undertaking was given by the appellants in Olga Tellis case agreeing to vacate the huts on or before October 15, 1981 and not to obstruct the public authorities from demolishing them, they cannot be estopped from contending in the Court that the huts put up by them on pavements cannot be demolished, because a concession made by a party in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding, for, such a concession, if enforced, would defeat the purpose of the Constitution. Finally, restating the stand taken by the petitioner that the allegation of maladministration if made by an employee or workman, the same would not amount to breach of the Standing Order Nos.25 and 33. Therefore, the impugned charge memo is liable to be quashed.
8. A detailed counter affidavit has been filed by the respondents opposing the maintainability of the writ petition. Mr.N.Nithiyanandam, learned standing counsel for the respondents, objecting to the maintainability of the writ petition, raising a preliminary issue, submitted that when the petitioner has actively participated in the enquiry for more than 10 hearings, after completion of the evidence of the respondent management and he also examined two witnesses on his behalf without any protest and those witnesses were also cross examined on behalf of the respondent management, it is highly inappropriate on the part of the petitioner to come to this Court challenging the charge memo. The writ petitioner challenging a charge memo is also not maintainable, as per the ratio laid down by the Apex Court in Union of India and another v. Kunisetty Satyanarayana, (2006) 12 SCC 28, wherein the Apex Court has held clearly that ordinarily no writ lies against the charge sheet or show cause notice, for the reason that at the stage of charge sheet the writ petition may be held to be premature. Moreover, 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. In any event, the enquiry officer having held the enquiry with 12 sittings and completed the enquiry proceedings and posted the matter for filing written submission on 10.1.2018, at the stage of finalisation of the report, the petitioner cannot come to this Court. Now this Court should allow the enquiry officer to submit his report, based on which the disciplinary authority, after inviting further written representation to the report of the enquiry officer from the petitioner, should pass a final order whether the charges levelled against the petitioner are made out or not.
9. Even on merits, the learned standing counsel for the respondents submitted that the petitioner has not come to this Court with clean hands, since he has taken double stand. Firstly, when the petitioner joined the company on 14.8.90 as Industrial Worker Grade I, on the promotions given to him, he is presently working as Chief Technician in Mine IA. While so, he indulged in posting derogatory remarks and comments in his facebook account which is open to public view. As the derogatory remarks and baseless comments against the functioning of the respondents were posted without verification criticising the company's policies and certain decisions including certain open tender contracts awarded for outsourcing for overburden removal in mines to private contractors making baseless allegations of irregularities and unverified allegations against the Hon'ble Prime Minister of India, Chief Minister of Uttar Pradesh and the former Governor of Tamil Nadu, with a mala fide intention to spread wrong rumours and false allegations. These acts of the petitioner are misconduct falling under Certified Standing Order Nos.20, 25, 33 and 46 of the respondent Corporation and also in breach of the circular No.CORP/P&A/720/0800/2007 dated 25.10.2010 and the proceedings No.CORP/HR/RULES/1913/2012 dated 16.2.2012 issued by the respondents. Being an employee, without any responsibility, has made baseless allegations without proper verification, he was issued with the charge memo on 6.7.2017 containing five charges asking him to submit his explanation. Curiously, the petitioner submitted his explanation on 28.7.2017 denying the charges categorically stating that he is willing to participate in the domestic enquiry to explain the charges. When the petitioner has come forward with his written explanation inviting the disciplinary authority to hold an enquiry, enabling the petitioner to substantiate the charges levelled against him, the disciplinary authority, accepting his request, appointed an enquiry officer to enquire into the charges. Thereupon the enquiry officer conducted enquiries on various dates, namely, on 20.9.2017, 4.10.2017, 10.10.2017, 27.10.2017, 14.11.2017, 17.11.2017, 22.11.2017, 2.12.2017 & 12.12.2017. After attending all these hearings, at the stage of finalisation of the disciplinary proceedings, the petitioner cannot file this writ petition under Article 226 of the Constitution of India. Secondly, even after filing of the writ petition on 19.12.2017, the petitioner attended the enquiry on 19.12.2017, 26.12.2017 and 5.1.2018. The enquiry officer posted the enquiry on 10.1.2018 for filing of the written submission by the presenting officer. In the enquiry, he was permitted to engage a defence assistant and the petitioner also actively participated in the enquiry without any protest. Only after completion of the evidence of the management, the petitioner himself has examined two witnesses on his side and those witnesses were also cross examined by the respondents. Moreover, the petitioner did not raise any objection during the course of enquiry. Now the domestic enquiry has reached the final stage of completion. At this juncture, the writ petition challenging the charge memo dated 6.7.2017 is impermissible in law, as it is a premature one.
10. Continuing further, the learned standing counsel for the respondents submitted that the scope of judicial review under Article 226 of the Constitution of India has been crystallised by the Apex Court in Union of India and another v. Kunisetty Satyanarayana, (2006) 12 SCC 28 holding that ordinarily a writ petition should not be entertained against the show cause notice and the writ petition should be dismissed, more particularly, when the enquiry officer has completed the enquiry and is about to file the enquiry report. Again placing reliance on the judgment of the Apex Court in M.H.Devendrappa v. Karnataka State Small Industries Development Corporation, (1998) 3 SCC 732, he has pleaded that the Apex Court, while dealing with a similar misconduct committed by the appellant-employee of the Corporation, who was the then President of the Employees' Welfare Association, for addressing a letter to the Governor of Karnataka stating that the Corporation was likely to be wound up on account of bad administration, corruption and nepotism, in view of the appointment of serveral persons in the Corporation at the instance of political leaders and ministers who were not properly qualified, for which the employee was departmentallly proceeded with, and a similar stand was taken that the right to freedom of speech guaranteed under Article 19(1)(a) cannot be curtailed, repelling the said contentions, has held that making public statement against the head of the organisation without any basis would amount to lowering the prestige of the organisation in which he worked. Therefore, it is a fit case where disciplinary proceedings should be initiated. When the law is well settled that the government servants can be subjected to the rules which are intended to maintain discipline within their ranks which lead to an efficient discharge of their duties, the present writ petition challenging the impugned charge memo is wholly misconceived. Therefore, the same is liable to be dismissed, he pleaded.
11. Heard both sides.
12. The petitioner joined the Neyveli Lignite Corporation India Limited on 14.8.90 as an Industrial Worker Grade I and on promotion, he is presently working as Chief Technician in Mine IA. The crux of the allegation levelled against the petitioner is that he has posted certain derogatory remarks and comments in his facebook account which is open to public view containing unverified and unsubstantiated allegations criticising NLCIL's policies and certain decisions including certain contracts awarded for outsourcing overburden removal in mines to private contractors. Moreover, charge no.2 alleges that he has posted certain derogatory remarks and comments in his facebook account containing false allegations against the Chief Minister of Uttar Pradesh portraying him as a member of RSS who always offers controversial remarks. Charge No.3 alleges that he has also posted derogatory remarks and shared comments in facebook account carrying defamatory allegations abusing the Hon'ble Prime Minister of India by equating him with Adolf Hitler. Charge No.4 also alleges that by posting certain derogatory comments in his facebook account defaming the Governor of Tamil Nadu who remained indifferent without taking any action for a stable political situation in Tamilnadu. As the posting of derogatory remarks in his facebook account which is open to public view has caused serious injury to the respondent company's reputation, he has been issued with the charge memo on 6.7.2017 that his conduct is in violation of the Standing Order Nos.25, 33 and 46, which read as follows:-
25. Secrecy:-
a) No workmen shall by writing to any person (including a co-workman) or by communicating to public papers, journals, Books, Pamphlet or leaflets or by speech or discussion at any place, disclose or cause to be disclosed, at any time during his service with the Company, or after leaving the service of the Company, any information or documents relating to the Company, except with the approval of Management.
b) No workman shall, otherwise than in the normal course of his work, engage himself in giving information or advice on matters relating to the activities of the Company.
c) Except in the ordinary course of his duties, no workman shall disclose, either during his service with the Company or after leaving the service of the Company any secrets, cost of production of any or all of the Company's products, information of purchase made by or contracts entered into by the Company, information of settlement of claims by the Company in or out of Court, or any other information, or matters of trade, or business secrets.
d) No workman shall carry with him outside the factory premises any papers, books, drawings, photographs, instrument, apparatus, documents or any other property belonging to the Company.
Provided that this prohibition shall not apply to those workman who are specially authorized by the Management to take out of the factory premises papers and documents for the purpose of study or for other purposes approved by the Management.
e) No workman shall take notes, drawing or sketches, for his own use of any plant, process or work, or keep copies of official papers with him.
f) Any books, drawings, sketches, photographs and similar papers containing notes or information relating to the Company's business affairs, or operations, shall always be treated as Company's property, whether prepared by a workman or otherwise.
g) A breach of this order shall constitute misconduct under Standing Order No.46.
33. Publication of written articles:
Subject to his legal rights, no workmen shall publish, or cause to be published, an article written by him on any matter whatsoever, in any local or overseas newspaper, journal or other publication without the written permission of the Management. Provided such permission shall not be necessary for the publication of articles which have no bearing on the affairs of the Company, which do not directly affect the Company, and for which the writer does not get any remuneration.
46. Acts and omissions constituting misconduct:
i) to iii).....
iv) Taking or giving of bribes or any illegal gratification whatsoever.
v) to xi).....
xii) Habitual indiscipline.
xiii) to xxvii)......
xxviii) Spreading of false rumour or giving of false information which tends to bring into disrepute the Company or workmen or spreading panic among them.
xxix) to xxxiv).....
xxxv) Any act or omission punishable under law.
xxxvi) & xxxvii)....
xxxviii) Breach of any of the Standing Orders or any rules framed under these orders.
xxxix) Abetment of, or attempt to commit, any of the above act of misconduct.
xl) to xlvi)....
13. On receipt of the charge memo, the petitioner has given his explanation on 28.7.2017, wherein, while denying the charges, expressed his willingness to participate in the enquiry to prove that the posting of derogatory remarks and comments in his facebook account criticising the policies of the respondent Corporation are correct, inviting the disciplinary authority to hold an enquiry. The substance thereof inviting the respondents to hold an enquiry is given hereunder:-
ehd; bjhptpj;Js;s ,g;gjpy; j';fSf;F jpUg;jp mspf;ftpy;iybad;why; neuo tprhuizapy; TLjy; tpsf;f';fis mspf;f jahuhf cs;nsd; vd;gija[k; bjhptpj;Jf; bfhs;fpnwd;/ (If this explanation offered by me is not satisfactory, during the enquiry, I am prepared to offer my additional explanation.)
14. A perusal of the above explanation vividly shows that the petitioner has specifically stated that if his explanation is not satisfactory, he is prepared to take part in the enquiry to be held by the disciplinary authority to prove the charges are not false, but are genuine. Therefore, when the petitioner has invited the enquiry to prove his stand, he cannot come to this Court taking a different stand to quash the enquiry.
14.1. Secondly, accepting the challenge made by the petitioner that he was prepared to substantiate the comments posted in his facebook account, the disciplinary authority has appointed the enquiry officer, who has also conduced enquiry for more than ten hearings, namely, 20.9.2017, 4.10.2017, 10.10.2017, 27.10.2017, 14.11.2017, 17.11.2017, 22.11.2017, 2.12.2017 & 12.12.2017. At the time of completion of the enquiry, the petitioner cannot challenge the charge memo.
14.2. Thirdly, even after the filing of the writ petition on 19.12.2017, when the enquiry was held on 19.12.2017, 26.12.2017 and 5.1.2018, he actively took part in the enquiry without any protest and he was also permitted to engage a defence assistant. Only after completion of the evidence of the respondent management, he himself examined two witnesses on his behalf and those witnesses were also cross examined by the respondent management. When he has not even raised any objection during the course of enquiry and allowed the domestic enquiry to reach its finality, the petitioner cannot come to this Court praying interference with the domestic enquiry.
14.3. Fourthly, when the acts of the petitioner in posting certain remarks and comments in his facebook account which is open to public view containing unverified and unsubstantiated allegations criticising the policies of the respondent Corporation including certain contracts awarded for outsourcing for overburden removal in mines to private contractors against the Standing Order Nos.25, 33 and 46, are under dispute and the enquiry officer, who has been appointed to enquire into such acts, has also completed the enquiry, it is not known whether the disciplinary authority would accept the findings of the enquiry officer. When the result of the enquiry has not been made known, as rightly argued by the learned standing counsel for the respondents that no writ will lie against a mere show cause notice or charge sheet, as it is a premature one, the petitioner cannot come to this Court. In this context, the relevant paragraphs of the Apex Court judgment in Union of India and another v. Kunisetty Satyanarayana, (2006) 12 SCC 28 are extracted hereunder:-
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 v. Ramesh Kumar Singh, (1996) 1 SCC 327, Special Director v. Mohd. Ghulam Ghouse, (2004) 3 SCC 440, Ulagappa v. Divisional Commr., Mysore, (2001) 10 SCC 639, State of U.P. v. Brahm Datt Sharma, (1987) 2 SCC 179 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 petition 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. A perusal of the above observations of the Apex Court as to why ordinarily a writ petition should not be entertained against a show cause notice would show that at that stage the writ petition may be held to be premature, inasmuch as a mere charge sheet or show cause notice does not give rise to any cause of action, because there is no adverse order passed. Moreover, it is quite possible that after considering the reply to the show cause notice, the authority concerned may even drop the proceedings or hold that the charges are not established. In the case on hand, when the enquiry has already reached its finality, this Court is not inclined to entertain the writ petition.
16. Reliance was also placed on the judgment of the Apex Court in Vijay Shankar Pandey v. Union of India and another, (2014) 10 SCC 589 to contend that the allegations of maladministration do not fall within the scope of the Standing Orders. In Vijay Shankar Pandey's case, the appellant was an officer of the Indian Administrative Service and he was served with a charge sheet consisting of five charges alleging that his conduct was contrary to the Rules 3, 7, 8 and 17 of the All India Services (Conduct) Rules, 1968. The first charge alleged that in a Writ Petition No.37 of 2010 filed before the Supreme Court, an additional affidavit was filed making certain allegations against certain senior officers of the Enforcement Directorate directed to the Prime Minister, which was not expected of him while being a member of the All India Service. The third charge alleged that the senior officers of the Government of India were criticised, whereas the members of the All India Service were prohibited in the media or in the press. When the department proceeded against him by issuing a charge sheet, the same was unsuccessfully challenged before the Central Administrative Tribunal and though a writ petition was filed, the same was withdrawn subsequently making the order of the Central Administrative Tribunal final. Thereafter, the enquiry officer submitted his report on 30.8.2012 exonerating the appellant of all the charges and the copy of the said report was also served on him. In the meanwhile, the case of the appellant was, in view of the exoneration by the enquiry officer, he be promoted to the super time scale II. Finding no response to his representation, he approached the Central Administrative Tribunal for a direction to the respondents therein to take a final decision on the enquiry report and also to open the sealed cover of the recommendation of the Selection Committee and to forthwith issue the promotion orders. In the meanwhile, the Government of Uttar Pradesh passed an order rejecting the enquiry report and appointing a new enquiry board. Therefore, his original O.A., was dismissed as infructuous. Again he approached the Central Administrative Tribunal and the High Court challenging the said rejection order unsuccessfully. When the said order was taken up on appeal, the Apex Court, while dealing with Rule 7 of the All India Services (Conduct) Rules, 1968, has held that the said rule only prohibits criticism of the policies of the Government or making of any statement which is likely to embarrass relations between the Government of India and a foreign State, hence, the allegations of maladministration do not fall within its ambit.
17. But in the instant case, the domestic enquiry invited by the petitioner has already reached a final conclusion, as the report of the enquiry officer has to be submitted to the disciplinary authority and after perusing the report made by the enquiry officer, the disciplinary authority has to finally decide whether the conduct of the petitioner in posting derogatory remarks or comments in his facebook account are in conformity with the Standing Orders or in contravention thereof, the reliance placed on the judgment of the Apex Court in Vijay Shankar Pandey's case is clearly distinguishable, wherein the appellant was exonerated of all the charges in the enquiry report, whereas it is not so in the case of the petitioner, as the outcome of the enquiry is still awaited. Hence, the said judgment cannot be applied to the case of the petitioner.
18. Equally the observation made by the Hon'ble Division Bench of this Court in G.Arasukumar and others case, 2015-3-L.W.849, more particularly, in paragraph-38, which reads as follows, 38. We agree with the submissions of the counsel for the appellant. Except taking exception to the posters and their display at various places, the bank has not chosen to deny the contents of those posters regarding the cash shortages. A mere demand for the resignation of the Chief General Manager owning moral responsibility, cannot be a defamatory statement. The offending passage set out in the charge memo to the effect that the entire amount of shortage as siphoned of by officials is not a correct translation of the sentence found in the poster printed in Tamil. On the other hand, as pointed out earlier the correct translation of the said sentence is as follows: Officers! Can you swindle public funds. It is merely a poser and not an assertion. It was more of a question than an answer. In the light of a series of cash shortages reported, one cannot really blame the appellants of committing a misconduct. We do not know how the action of the trade union and its office bearers in putting up the posters can be detrimental to the interest of the bank if the substance of those allegations are not denied., clearly shows that except taking exception to the posters and their display at various places, the bank has not chosen to deny the contents of those posters regarding the cash shortages and a mere demand for the resignation of the Chief General Manager owning moral responsibility, cannot be a defamatory statement. Since the bank failed to deny the substance of those allegations, the Division Bench of this Court came to the conclusion that the action of the trade union and its office bearers in putting up the posters cannot be detrimental to the interest of the bank, whereas in the present case, allegations are denied. Hence, the ruling of the Division Bench also cannot be made applicable.
19. Let me now apply the ratio laid down by the Apex Court in the case of M.H.Devendrappa v. Karnataka State Small Industries Development Corporation, (1998) 3 SCC 732 to the case on hand. In the said case, the appellant, being an employee of the Karnataka State Small Industries Development Corporation, who happened to be the President of employees welfare association, addressed a letter to the Governor stating that the Corporation was likely to be wound up due to corruption, bad administration and nepotism and that at the instance of political leaders and ministers, several persons were being appointed in the Corporation who were not properly qualified and therefore the Governor should investigate the working conditions of the said Corporation. After sometime, he also gave a press statement, which was published in a local newspaper, welcoming the dismissal of the then Chairman of the Corporation. In view of the above, he was issued with a charge memo. The delinquent employee took a plea that all actions were in his capacity as the President of the employees welfare association and that the enquiry against him was illegal and without jurisdiction and he also sought to justify what he stated in the letter to the Governor. Finally he was dismissed from service. He unsuccessfully challenged the said order in the writ petition and writ appeal. When the matter was taken up on appeal, the Apex Court, while dealing with the plea of right to freedom of speech and expression under Article 19(1)(a), has held that the said right is subject to reasonable restrictions under Article 19(2). It is pertinent to extract the relevant paragraphs of the said judgment as follows:-
10. The right to freedom of speech and expression is subject to reasonable restrictions under Article 19(2). Such restrictions can be in the interest of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Similarly, Article 19(1)(c) is also subject to reasonable restrictions under Article 19(4). Such reasonable restrictions can be made, inter alia, in the interest of public order or morality. Article 19(2) or 19(4) may not be directly relevant in the present case in view of the provisions contained in Rule 22 of the Service Rules. Rule 22 of the Service Rules is not meant to curtail freedom of speech or expression or the freedom to form associations or unions. It is clearly meant to maintain discipline within the service, to ensure efficient performance of duty by the employees of the Corporation, and to protect the interests and prestige of the Corporation. Therefore, under Rule 22 an employee who disobeys the service Rules or displays negligence, inefficiency or in-subordination or does anything detrimental to the interests or prestige of the Corporation or acts in conflict with official instructions or is quality of misconduct, is liable to disciplinary action. Rule 22 is not primarily or even essentially designed to restrict, in any way, freedom of speech or expression or the right to form association or unions. A Rule which is not primarily designed to restrict any of the fundamental rights cannot be called in question as violating Article 19(1)(a) or 19(1)(c). In fact, in the present proceedings the constitutional validity of Rule 22 is not under challenge. What is under challenge is the order of dismissal passed for violating Rule 22 when the impugned conduct which violates Rule 22 is held out as an exercise of a right under Article 19(1)(a) or 19(1)(c).
13. In the case of O.K.Ghosh v. E.X.Joseph, (1963) Supp. 1 SCR 789, the respondent, a Central Government servant, who was the Secretary of the Civil Accounts Association was departmentally proceeded against under Rules 4(A) and 4(8) of the Central Civil Services (Conduct) Rules, 1955, for participating in demonstrations in preparation of a general strike and for refusing to dissociate from the Association after the Government had withdrawn its recognition of it. This Court set aside Rule 4(B) as invalid and violative of Article 19(1)(c). The Rule provided that no Government servant shall join or continue to be a member of any services association which the Government did not recognise or in respect of which recognition had been refused or withdrawn by it. This Court said that Rule 4(B) imposed a restriction on the undoubted right of a Government servant under Article 19(1)(c) which was neither reasonable nor in the interest of "public order" under Article 19(4). Because, in granting or withdrawing the recognition, the Government might be actuated by considerations other than those of efficiency or discipline amongst the services or consideration of public order. However, Government servants can be subjected to Rules which are intended to maintain discipline within their ranks and which lead to an efficient discharge of their duties....
14. In all these cases, this Court has been at pains to point out that Service Rules can be framed to maintain efficiency and discipline within the ranks of Government servants. in the case of O.K.Ghosh, this Court considered such Rules as being saved by the "public order" clause under Article 19(4). In the present case, the restraint is against doing anything which is detrimental to the interests or prestige of the employer. The detrimental action may consist of writing a letter or making a speech. It may consist of holding a violent demonstration or it may consist of joining a political organisation contrary to the Service Rules. Any action which is detrimental to the interests or prestige of the employer clearly underlines discipline within the organisation and also the efficient functioning of that organisation. Such a rule could be construed as falling under "public order" clause as envisaged by O.K.Ghosh.
19. In the present case, the appellant had made direct public attack on the head of his organisation. He had also, in the letter to the Governor, made allegations against various officers of the Corporation with whom he had to work and his conduct was clearly detrimental to the proper functioning of the organisation or its internal discipline. Making public statements against the head of the organisation on a political issue also amounted to lowering the prestige of the organisation in which he worked. On a proper balancing, therefore, of individual freedom of the appellant and proper functioning of the Government organisation which had employed him, this was a fit case where the employer was entitled to take disciplinary action under Rule 22. A careful perusal of the above ratio clearly shows that the government servants can be subjected to rules which are intended to maintain discipline within their ranks and which lead to an efficient discharge of their duties. Similarly, the Neyveli Lignite Corporation India Limited is a public sector undertaking run and administered by the Central Government, therefore, the aforesaid settled legal position will apply to this Corporation and its employees. It is well settled that the rights and duties are the two sides of the same coin. One does not exist without the other. As the rights and duties are inseparable, they cannot be separated from one another, because both go side by side. If the State gives the right to life to a citizen, it also imposes an obligation on him not to expose his life to dangers. There can be no right without a corresponding duty or a duty without a corresponding right. Therefore, when the petitioner, being an employee of Neyveli Lignite Corporation India Limited, claims that he has got a right to criticise the Corporation and other dignitaries, equally he owes a duty to answer the charges by participating in the enquiry. Therefore, this Court is not inclined to interfere with the impugned charge memo.
20. For all the aforesaid reasons, this Court does not find any merit in the writ petition. Accordingly, the writ petition is dismissed. Consequently, W.M.P.No.36803 of 2017 is also dismissed. No costs.
Speaking/Non speaking order 09.02.2018
Index : yes
Issue copy on 13.2.2018
ss
To
1. The Chairman & Managing Director
NLC India Ltd.,
Corporate Office, Block 1
Neyveli-1
2. The Chief General Manager
Mine IA Unit Head
Mines Office
NLC India Ltd., Block 26
Neyveli-3
3. The Deputy General Manager
(Lignite Zone Mine IA)
Mines Office
NLC India Ltd., Block 26
Neyveli-3
4. The Chief Manager (HOHR)
Mines Office
NLC India Ltd., Block 26
Neyveli-3
5. The Chief Manager
Bottom Bench Mine IA
NLC India Ltd.,
Neyveli-1
T.RAJA, J.
ss
W.P.No.33357 of 2017
09.02.2018