S THIRU ARASU Vs. NLC INDIA LTD

JUDGEMENT

(1.) 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,

(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. 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. 1 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 1 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).