Madras High Court: In a writ petition filed to quash the charge sheet against the petitioner as he was suspended for posting objectionable messages mocking the administrative process and belittling the higher authorities in a WhatsApp group, G.R Swaminathan, J. has held that the petitioner possesses the ‘right to vent'. Further, it said that the opinion was not expressed publicly. It was shared among the members of a private WhatsApp group. Thus, the Court quashed the impugned charge memo.
Background:
The petitioner works as a Group B Office Assistant in the Tamil Nadu Grama Bank. He petitioner is facing disciplinary action at the hands of the management. The petitioner was 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 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.
The respondent contended that 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 Court said that 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 from 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.
The Court said that as per the petitioner the said WhatsApp group is a private group that exists to organize their union activities and to communicate among them.
The Court relied on Bharathidasan University v. All-India Council for Technical Education, (2001) 8 SCC 676 and said that if the circular is applied literally and verbatim, the act of the petitioner does amount to misconduct. Further, it refused to strike down the circular, and agreed to read it down, so that it is in conformity with the law.
The Court also said that if the employer interferes with, restrains or coerces workmen in the exercise of their right to organize a trade union or to engage in 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 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, subject to reasonable restrictions.
The Court coined the term ‘Right to vent' and said that 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.
While reiterating the common law principle that “every man’s home is his castle”, the Court said that a group of employees if having a chat in one of their homes. So long as it is a private chat, it cannot attract the regulatory framework of the management. If bar room gossip is published, that would attract contempt of Court. But, as long as it remains private, cognizance cannot be taken. 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.
While reiterating the Right to privacy, the Court said that not only individuals but even groups have privacy rights. It’s time to recognise the concept of “group privacy”. So long as the activities of a group do not fall foul of the law, their privacy must be respected. Thus, when the members of a WhatsApp group are merely discussing among them, matters of common interest, that cannot be a target of attack. However, if the members of a WhatsApp group share child pornographic content, it is a crime and a punishable activity. If they conspire to commit any unlawful act, then the regulatory framework will step in.
The Court said that the members of the WhatsApp group formed by the petitioner felt aggrieved by some of the actions of the Bank. The petitioner expressed his views. The manner of expression cannot be said to be in good taste, but , everyone has his own way of articulating.
The Court took note of Retheesh P.V vs. Kerala State Electricity Board Ltd1, wherein the Kerala High Court said that 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.
Thus, the Court held that 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.
[A. Lakshminarayanan v Assistant General Manager, 2023 SCC OnLine Mad 5314, Order dated 08-08-2023]
Advocates who appeared in this case :
For Petitioner: Advocate D.Geetha
For Respondent: Standing Counsel N.Dilipkumar
1. WP(C)No.21994 of 2020 dated 26-03-2021
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