When even prisoners have fundamental rights and it has been declared by the Apex Court that Part III of the Constitution does not stop at the prison gates, it would be ridiculous to suggest that the moment a person becomes a bank employee, he has to bid good-bye to Article 19(1)(a). The fundamental right insofar as it applies to the petitioner might have lost a bit of sheen but its core would remain with all vigor.
10.There is something called “right to vent”. Every employee or a member of an organization will have some issue or the other with the management. To nurture a sense of grievance is quite natural. It is in the interest of the organization that the complaints find expression and ventilation. It will have a cathartic effect. If in the process, the image of the organization is affected, then the management can step in but not till then.
11.Let us assume that a group of employees are having a chat in one of their homes. So long as it is a private chat, it cannot attract the regulatory frame work of the management. The common law principle is “everyman's home is his castle”. If bar room gossip is published, that would definitely attract contempt of Court. But then, so long as it remains private, cognizance cannot be taken. The world has become a global village. It is connected by digital technology. The principles applicable to a chat in a home can be applied to what takes place in an encrypted virtual platform that has restricted access. Such an approach alone will be in consonance with liberal democratic traditions. We are yet to enter into the worlds envisaged by AldousHuxley in “Brave New World” and George Orwell in “1984”. What the respondent proposes amounts to thought-policing.
It is well settled that a charge memo can be quashed if assuming that all the acts attributed to the delinquent are taken to be true, still, it would not be amount to act of misconduct. As already held, the petitioner is very much possessed of the right to vent. The opinion was not expressed publicly. It was shared among the members of a private WhatsApp group. The management has not disclosed as to how they became aware of the post. It has not been shown as to how the bank's interest has been affected. There are some political leaders who make statements that are in bad taste and yet refuse to apologize. When I indicated that while the petitioner can criticise the management, the language also matters, he readily apologized. In these circumstances, the act committed by the petitioner cannot amount to misconduct. The impugned charge memo is quashed. {Para 20}
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
W.P(MD)No.9754 of 2023
and
WMP(MD)No.8689 of 2023
A.Lakshminarayanan Vs. The Assistant General Manager
CORAM
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
Pronounced on : 08.08.2023.
ORDER
The petitioner joined Pandiyan Grama Bank as Office Assistant
in the year 2013. The bank was later amalgamated with Pallavan
Grama Bank and is now known as Tamil Nadu Grama Bank. The
petitioner is now working in Arumuganeri Branch, Thoothukudi
Region as Group B Office Assistant (Multi purpose). The petitioner is
a trade union activist. He is an office bearer of the Tamil Nadu Grama
Bank Workers Union. The petitioner is facing disciplinary action at
the hands of the management. The petitioner had filed writ petitions
assailing them.
2.The petitioner came to be suspended on 05.08.2022 on the
ground that he had posted certain objectionable messages mocking
the administrative process/decisions and belittling the higher
authorities in a WhatsApp group on 29.07.2022. The suspension
order was stayed in WP(MD)No.18705 of 2022 on 18.08.2022. After
revoking the suspension, the impugned charge memo came to be
issued. Challenging the same, the present writ petition was filed.
3.The learned counsel appearing for the petitioner reiterated all
the contentions set out in the affidavit filed in support of the writ
petition and called upon this Court to set aside charge memo and
grant relief as prayed for.
4.The respondent has filed counter affidavit and the learned
standing counsel for the bank took me through its contents. The
prime contention of the learned standing counsel is that the message
posted by the petitioner is per se defamatory. The Board of Directors
of the Bank includes women IAS officers. The petitioner had described
their actions in unflattering terms. As per the conduct Rules and the
instruction issued by the management, the act committed by the
petitioner constitutes misconduct. Relying on a catena of decisions,
the learned Standing Counsel contended that the writ petition is not
maintainable. He pressed for its dismissal.
5.I carefully considered the rival contentions and went through
the materials on record. The Tamil Nadu Grama Bank (Officers and
Employees) Service Regulations, 2019 governs the conduct of the
employees of the Bank. Regulations 18 and 20 read as follows:-
”18.Liability to abide by the regulations and order:-
every officer or employee shall confirm to and abide by these
regulations and shall also observe, comply with and obey and
directions which may, from time to time be given to him by any
person or persons under whose jurisdiction, superintendence or
control he may for the time being be posted.
20.Obligation to promote the Bank's interest:- Every
officer or employee shall serve the Bank honestly and
faithfully, and shall use his utmost endeavor to promote the
interests of the Bank and shall show courtesy and attention
in all transactions and dealings with officers of Government,
the Bank's constituents and customers.”
6.The management had issued Circular No.82/2019-20 dated
23.07.2019 regulating the conduct to be followed by the employees of
the Bank while expressing views in social media. It is as follows:-
7.The argument of the learned standing counsel is that the
employees have to comply with and obey the instructions issued vide
Circular No.82/2019-20 dated 23.07.2019. Since the petitioner has
contravened the same, Regulation 39 which provides for penalties for
breach stands attracted. The question that calls for consideration is
whether this contention of the management is sustainable in the facts
and circumstances of the case.
8.The petitioner admittedly posted the subject message in a
WhatsApp group. WhatsApp is essentially a communication platform.
It is end-to-end encrypted. Messages can be sent by one to another.
In the alternative, there can also be a group of persons among whom
the messages can be privately shared. Someone who is not a part of
the group cannot have access to the conversation exchanged among
the WhatsApp group members.
9.The petitioner started a WhatsApp group known as “AIRBEATN
and Puduvai”. According to him, it is a private group that exists to
organize their union activities and to communicate among them. The
issue is whether the aforesaid circular can be deployed to regulate the
activities on the said platform. If the circular is applied literally and
verbatim, the act of the petitioner does amount to misconduct. Even
though the circular has not been formally impugned, I will adopt the
approach approved by the Hon'ble Supreme Court in Bharathidasan
University Vs. AICTE (2001) 8 SCC 676. The following ratio was laid
down therein:-
“When the power to make regulations is confined to
certain limits and made to flow in a well-defined canal within
stipulated banks, those actually made or shown and found to
be not made within its confines but outside them, the Courts
are bound to ignore them when the question of their
enforcement arises and the mere fact that there was no
specific relief sought for to strike down or declare them ultra
vires, particularly when the party in sufferance is a
respondent to the lis or proceedings cannot confer any further
sanctity or authority and validity which is shown and found to
obviously and patently lack.”
I will not strike down the circular. But I can certainly read it down so
that it is in conformity with the law of the land. The Industrial
Disputes Act, 1947 forbids unfair labour practices. The fifth schedule
to the Act catalogues them. If the employer interferes with, restrains
or coerces workmen in the exercise of their right to organize a trade
union or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, that amounts to unfair labour practice. The very purpose of the employees coming together is to negotiate with the management in respect of their service conditions. If necessary, the employees will have to even fight with the management for acceptance of their demands. These are legitimate activities in a democratic republic. Article 19(1)(a) of the Constitution of India guarantees freedom of speech and expression. It is of course
subject to reasonable restrictions. A government servant definitely
cannot claim the same extent of right which a private citizen enjoys.
He is governed by Conduct Rules. The petitioner is also placed
likewise. When even prisoners have fundamental rights and it has been declared by the Apex Court that Part III of the Constitution does not stop at the prison gates, it would be ridiculous to suggest that the moment a person becomes a bank employee, he has to bid good-bye to Article 19(1)(a). The fundamental right insofar as it applies to the petitioner might have lost a bit of sheen but its core would remain with all vigor.
10.There is something called “right to vent”. Every employee or
a member of an organization will have some issue or the other with
the management. To nurture a sense of grievance is quite natural. It
is in the interest of the organization that the complaints find
expression and ventilation. It will have a cathartic effect. If in the
process, the image of the organization is affected, then the
management can step in but not till then.
11.Let us assume that a group of employees are having a chat in
one of their homes. So long as it is a private chat, it cannot attract the
regulatory frame work of the management. The common law principle is “everyman's home is his castle”. If bar room gossip is published, that would definitely attract contempt of Court. But then, so long as it remains private, cognizance cannot be taken. The world has become a global village. It is connected by digital technology. The principles applicable to a chat in a home can be applied to what takes place in an encrypted virtual platform that has restricted access. Such an approach alone will be in consonance with liberal democratic traditions. We are yet to enter into the worlds envisaged by AldousHuxley in “Brave New World” and George Orwell in “1984”. What the respondent proposes amounts to thought-policing.
12.The concept of privacy is now a recognized fundamental right
[AIR 2017 SC 4161 (Justice K.Puttaswamy (Retd.) vs. Union of
India)]. Not only individuals but even groups have privacy rights.
Time has come to recognize the concept of “group privacy”. So long as the activities of a group do not fall foul of law, their privacy must be respected. If the members of a WhatsApp group share child
pornographic content, it is a crime and a punishable activity. If the
members conspire to commit any unlawful act, then again, the
regulatory framework will step in. But when the members of a
WhatsApp group are merely discussing among them, matters of
common interest, that cannot be a target of attack. The members of the WhatsApp group formed by the petitioner felt aggrieved by some of the actions of the respondent Bank. The petitioner expressed his views. Of course, the manner of expression cannot be said to be in good taste, but then, everyone has his own way of articulating. When I expressed my disapproval, the petitioner unconditionally apologized in writing. If the management has a mole among the members and snooped the contents of conversation among them, the person who had expressed his opinion in the first instance cannot be proceeded against. In the coming days, powerful managements may be possessed with Pegasus-like technology providing them access to private conversations. Courts may dread such scenario, but then would still firmly say that charges cannot be framed on the strength of information gleaned through such means. Of course, the content shared over the end-to-end encrypted communication platform must be within the legal bounds mentioned above.
13.The Hon'ble High Court of Kerala (The Hon'ble Mr.Justice
A.Muhamed Mustaque) observed in WP(C)No.27355 of 2018 dated
28.09.2018 (Anil Kumar A.P vs. Mahatma Gandhi University and ors)
as follows :
“4.Emotional outburst of a disgruntled, through
social media in a louder voice is part of his right of free
speech......
5....
6.Servitude is an outlook of an individual and not a
governing norm in a public Institution. Discipline is a
norm. Discipline and servitude are to be distinguished. If
an employee speaks out in the social media in a general
perspective which is not inconsistent with the collective
interest of the Institution, that is part of his right of free
speech. No authority should expect one to be silent.
Survival of public Institution depends upon how it
accounts for democratic values. Free expression is the
corner stone of democratic value. Every functionary of
public power therefore, must command liberty to their
constituents.”
14.The Hon'ble Judge in WP(C)No.31703 of 2018 dated
05.12.2018 (Dr.Prasad Pannian v. The Central University of
Kerala and ors) observed as follows :
“5.Posting in a Face Book or social media has
become a matter of concern for public authorities. It is a
matter of formulation of opinion of others. As pointed out
by this Court in several judgments, in the absence of any
social media guidelines, such post has to be viewed to
find out whether it would be detrimental to the collective
interest of the University. The expression of opinion of a
teacher in regard to an action cannot be considered as a
criticism. On a glance of the Face Book posting, it can be
seen that the petitioner was sympathising a student who
has to undergo such pain and trauma of criminalisation
of his act. What would constitute a misconduct would
depend upon the nature of criticism or comment. One
cannot be prevented from expressing his views merely
because he is an employee. In a democratic society,
every institution is governed by democratic norms.
Healthy criticism is a better way to govern a public
institution.”
15.The Hon'ble High Court of Kerala in WP(C)No.21994 of 2020
dated 26.03.2021 (Retheesh P.V vs. Kerala State Electricity Board Ltd) sustained the contention of the petitioner's counsel that the posts
made in a private WhatsApp group without any access to the public
even if denigratory cannot ipso facto be construed as a disciplinary
infraction by an employee.
16.Judged by the above standard, the message posted by the
petitioner cannot be said to attract the Conduct Rules laid down by
the management. Any employee is bound to show courtesy to the
superior officer in his dealings. But while gossiping privately with a
fellow employee, the officer may come in for all kinds of criticism. If
this had taken place over a cup of tea outside a shop, the
management could not have taken note of it. Merely because the
same exchange took place among a group of employees on a virtual
platform with restricted access, it cannot make a difference.
17.The Hon'ble High Court of Tripura (Hon'ble The Chief Justice
Mr.Akil Kureshi) in WP(C)No.1363 of 2019 dated 09.01.2020 (Lipika Pual v. The State of Tripura and ors) was concerned with the case of disciplinary action initiated against a government employee who allegedly participated in a political rally and canvassed for a political party in Facebook. While setting aside the charge sheet, it was held that a government servant is not devoid of her right of free speech, a fundamental right which can be curtailed only by a valid law. She was entitled to hold her own beliefs and express them in the manner desired, of course, subject to not crossing the borders laid down in theconduct rules. Even while respectfully agreeing with what has been stated above, I would add that the borders cannot be unreasonably drawn.
18.The Hon'ble Apex Court in Anuradha Bhasin vs. UOI (2020)
3 SCC 637 held that the freedom of speech and expression through
the medium of internet is an integral part of Article 19(1)(a) and
accordingly, any restriction on the same must be in accordance with
Article 19(2) of the Constitution.
19.The Hon'ble Supreme Court of India in Kaushal Kishor v.
State of UP (2023) 4 SCC 1 observed that even if a person holds an
opinion which is not in conformity in constitutional values, he cannot
be taxed or penalized. It is only when his opinion gets translated into
action and such action results in injury or harm or loss that an action
in tort will lie. It was held that a fundamental right under Article 19
can be enforced even against persons other than the State or its
instrumentalities.
20.It is well settled that a charge memo can be quashed if
assuming that all the acts attributed to the delinquent are taken to be
true, still, it would not be amount to act of misconduct. As already
held, the petitioner is very much possessed of the right to vent. The
opinion was not expressed publicly. It was shared among the members of a private WhatsApp group. The management has not disclosed as to how they became aware of the post. It has not been shown as to how the bank's interest has been affected. There are some political leaders who make statements that are in bad taste and yet refuse to apologize. When I indicated that while the petitioner can criticise the management, the language also matters, he readily apologized. In these circumstances, the act committed by the petitioner cannot amount to misconduct. The impugned charge memo is quashed.
21.This writ petition is allowed. No costs. Connected
miscellaneous petitions are closed.
30.06.2023
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