Bombay High Court: In a petition filed by a Hitachi company under Articles 226 and 227 of the Constitution of India as against the order passed by the Labour Court on 31-05-2023 in favour of an office bearer of its recognized Union, Milind N. Jadhav, J. strictly stated the importance of reasonableness while exercising freedom of speech and expression, and quashed the impugned order while upholding the enquiry against the said workman.
Factual Background
The respondent was appointed as workman in the company’s assembly section in 2003 and his services were terminated on 2-05-2018. He was one of the office bearers of the recognized Union of the company. In 2017, there was a dispute over wage settlement, negotiations went unconcluded, and the company’s atmosphere in the company became tense. At the same time, the Union’s office bearers resorted to various agitations including hunger strike, etc. to pressurize the company. A settlement was arrived at after almost 20 months between the parties for revision of wages and service conditions.
Meanwhile on 20-02-2017, the said workman posted twice on his Facebook account which the company regarded defamatory, intended to tarnish the image and reputation of the company and its management in the eyes of public at large, and to instigate and incite the workmen during the pendency of the wage settlement.
A chargesheet was issued to the said workman on 25-02-2017 for the two Facebook posts alleging act of ‘misconduct’ against him under clauses 24(d), 24(k) and 24(l) the Model Standing Orders. The Enquiry Officer in report dated 26-04-2018 held him guilty of misconduct proved to his satisfaction. The said report was offered to the said workman for comments and was held not to be satisfactory, leading to termination of his services by issuing dismissal order dated 2-05-2018.
The said workman raised an industrial dispute to challenge his termination and dismissal which got referred to the Labour Court, who in turn framed 5 issues for adjudication, issues regarding fairness of enquiry and findings of the Enquiry Officer being the preliminary issues. The Labour Court vide order dated 31-05-2023 concluded the chargesheet issued to the said workman as illegal, not proper, and the findings of Enquiry Officer as perverse. Therefore, the Company challenged the said order in the instant writ petition, particularly the two preliminary issues regarding fairness of enquiry and findings of the Enquiry Officer.
Court’s Analysis
The Court noted that the petitioner in the instant matter was an international company with almost 1000 workers employed on different posts engaged in manufacture of carburetors for two-wheelers, the said workman had continuously worked for more than 15 years, and that the instant petition concerned two Facebook posts of the respondent on 20-02-2017. The Court further noted that at that point of time, hectic negotiations were taking place between the company and its Union to arrive at a wage settlement agreement and conditions of service, and the said workman was an active office bearer of the said Union, while the entire atmosphere in the company was extremely sensitive at the given time. It further pointed towards the respondent’s admission in his evidence regarding several articles and news items published against the company in the newspapers, print media, Facebook and even on television. In fact, several agitations such as distribution of pamphlets in the MIDC area where the company’s factory was situated, various demonstrations, conducting marches and resorting to hunger strike were undertaken by the Union, and in such scenario, the two Facebook posts were posted.
While considering the said Facebook posts dated 20-02-2023, the same written in Marathi read as “from the past 18 months there is no increase in salary by the Company and the staff members have increased. The management is not thinking about the workmen and despite the workmen thinking about the progress of the company, the management is putting the workmen in the ditch. The management should not play with the patience of the workers or else on the command given by the leadership, the management shall be destroyed, and the management should not see the end of the workmen, otherwise, the management will be required to beg.” The two comments were “until the government, management and the union are hand in glove with each other, till that time the workmen will be exploited” and “workmen should take swords in their hands and cut (assault) 2 to 3 management persons”.
The other Facebook post in Marathi translated to English read as “the management is warned to improve and not pressurize the workmen and exploit them since the management increases their own salary two-fold from the profits earned by the Company. It calls upon the management not to consider them as owners of the Company and exploit the workmen, since if the workmen erupt then they shall destroy the management alongwith themselves. That, certain management persons who were drawing salary of Rs.1 to 2 lakhs were incompetent and for the past 15 years they were looting the Company like leeches and the workmen who were working for the company were given a raw deal. It questions the management about the Model Standing Orders and warns the management that they should not mess with the life of the workmen failing which the workmen shall take it personally and shall teach the management a lesson.”
The Court regarded the two Facebook posts as an act of inciting hatred and passion against the management. It further pointed out the fact that the said workman initially denied about the posts and later was unable to produce any evidence to show that they were not posted by him, or his Facebook account was hacked, which made it an admitted position that those posts were posted by the said workman. Thus, he could not escape the liability of the two Facebook posts. The Court further noted that “it is seen that on the basis of the two Facebook posts posted by Respondent — workman, hatred and passion was clearly incited clearly amongst those who have given the likes and comments and one such comment incited the passion to such an extent that it stated that, “at least 2-3 persons from the management should be assaulted with swords”.”
The Court refused to give any benefit of doubt in the absence of any violence, stating that there was tension and restlessness amongst the workmen. The Court took the two Facebook posts to have an effect to lead to a disorderly act. The Court acknowledged that for 20-22 months of pendency of the issue relating to wage revision and settlement with the Union, the company’s atmosphere remained extremely sensitive, the fast till death was planned by the Union’s President, calling upon employees to carry out a two-wheeler rally, newspaper items, articles and publications with respect to the agitations. The Court expressed that all the actions of workmen during such times have to be within the realm of reasonableness, and that in the instant case, the misconduct committed by the said workman was covered under clauses 24(d), 24(k) and 24(l) of the Model Standing Orders.
Court on Workman’s Conduct
The Court commented that “Discipline is the hallmark of any employee/workman when he is required to conduct himself as a workman. Regulation of behaviour of workman is essential for peaceful conduct of industrial activity in the vicinity of the establishment as also within the premises of the establishment. In today’s technologically advanced world mobile phone is carried 24X7 by every person. Access to Facebook account is more conveniently accessed through the mobile phone” and dismissed the argument against premises from where such Facebook posts were made.
The Court was of the view that clauses 24(k) and 24(l) of the Model Standing Orders clearly covered the respondent’s act. It expressed that “Freedom of speech and expression cannot be allowed to be transgressed beyond reasonableness. If that is allowed, it could lead to disastrous consequences. In a given case, one cannot and should not wait for the consequences to occur. Such acts itself are required to be nipped in the bud. Otherwise, it would convey a wrong signal to the society at large.” The Court was of the view that the seriousness of the two Facebook posts clearly incited and provoked the readers against the company, as reflected in the comments.
The Court stated that “When it was an admitted position that wage settlement talks were going on for several months, a much greater degree of restraint is called upon to be exercised by the office bearers of the recognized Union who hold active parleys with the Petitioner — Company. However, if the same office bearers of the recognized Union themselves do not practice restraint and have faith in the statutory provisions of law and commit such an act by posting posts which invoke hatred and are by itself provocatory, such acts cannot / should not be pardoned. A strong message needs to be sent out against such acts.”
Conclusion
The Court found the impugned order dated 31-05-2023 unsustainable, that the chargesheet against the workman could not be construed illegal, and found the act committed by the said workman as squarely covered by clauses 24(d), 24(k) and 24(l) of the Model Standing Orders and thereby proven against him. Therefore, the Court quashed and set aside the impugned order and upheld the enquiry conducted against the said workman. The Court directed the Labour Court concerned to complete the hearing for remaining issues within 8 months.
[Hitachi Astemo Fie Pvt. Ltd. v. Nira kumar Prabhakarrao Kadu, 2023 SCC OnLine Bom 2652, decided on 12-12-2023]
Advocates who appeared in this case :
For Petitioner: Senior Advocate K.S. Bapat, Advocate T.R. Yadav
For Respondent: Advocate Nitin Kulkarni
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