Case Summary and Outcome

The Madras High Court quashed the misconduct charges framed against an employee for posting a message in a private WhatsApp Group, as it was protected under the right to freedom of speech and expression. The case concerns an employee and active trade union member who formed a WhatsApp Group to discuss union activities and subsequently shared some messages against the Management. The Management suspended the employee and issued a Charge memo. The High Court analyzing the bank’s circular and regulations, emphasized the employee’s right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. The Court interpreted the circular in a manner consistent with legal boundaries, safeguarding the petitioner’s right to criticize management within the limits of the law. Stressing the importance of privacy, the Court protected private discussions within encrypted platforms, cautioning against thought-policing. Referring to precedent cases, the Court upheld the petitioner’s right to vent grievances and quashed the charge memo, asserting that the petitioner’s actions did not constitute misconduct, reinforcing the significance of privacy and freedom of expression in the digital age.

Facts

In 2013, A. Lakshminarayanan, the Petitioner joined Pandiyan Grama Bank as an Office Assistant. Subsequently, the bank was amalgamated with Pallavan Grama Bank and is now known as Tamil Nadu Grama Bank, the Respondent. The Petitioner was serving at the Arumuganeri Branch in the Thoothukudi Region, holding the position of Group B Office Assistant (Multi-purpose). The Petitioner being an active trade union member and serving as an office bearer of the Tamil Nadu Grama Bank Workers Union, started a WhatsApp group with the name “AIRBEATN and Puduvai”. The WhatsApp group was a private group that was used to organize their union activities and to communicate among them.

On July 29th, 2022, the Petitioner allegedly posted objectionable messages in a WhatsApp group. These messages were said to mock the administrative processes and decisions of the bank while belittling higher authorities. Consequently, the petitioner was suspended on 5th August 2022 due to this incident. However, this suspension was temporarily halted through a stay order issued in Writ Petitioner on 18th August 2022. Following the suspension revocation, the Respondent issued a charge memo against the Petitioner, citing the objectionable messages posted in the WhatsApp group. Aggrieved against the charge memo, the Petitioner filed the writ petition, challenging the validity of the disciplinary action taken against them.

Decision Overview

Justice G.R. Swaminathan of the Madras High Court delivered this judgment. The central issue before the consideration of the court was whether the dismissal of the petitioner from the respondent Bank was justifiable.

The Petitioner opposed the allegations framed against him by the Respondent. 

On the other hand, the Respondent contended that the Petitioner’s posted messages were inherently defamatory, particularly directed at women IAS officers on the Bank’s Board of Directors. The Respondent referred to the Bank’s Code of Conduct Rules and the instruction issued by the Management, to contend that the act committed by the petitioner constituted misconduct. The Respondent contended that the writ petition is not maintainable and asserted that the Petitioner’s violation of Circular No.82 of 2019, which employees are obligated to follow, invokes Regulation 39, leading to penalties for the breach. [paras. 4 & 7]

While analyzing the above issue, the High Court commenced its analysis by delving into the Tamil Nadu Grama Bank (Officers and Employees) Service Regulations of 2019, which outlined the code of conduct for the Bank’s employees. The High Court specifically focused on Regulation 18, highlighting the obligation to comply with the regulations and orders, and Regulation 20, emphasizing the duty to promote the Bank’s interests. Additionally, the High Court took into account Circular No. 82/2019-20, which provided guidelines for employees’ conduct on social media platforms [para. 5-6]. The High Court noted that these guidelines explicitly prohibited actions such as damaging the Bank’s reputation, criticizing the Bank, or discussing the Bank’s operations on internet platforms or social media. [para. 6]

The High Court observed that if the Circular was applied literally and verbatim, the act of the Petitioner would amount to misconduct. [para. 9] The High Court referred to the case of Bharathidasan University v. AICTE, (2001) and emphasized that Regulations must operate within clearly defined boundaries. If regulations are found to exceed these limits and are clearly outside the established framework, the courts are obligated to disregard them when considering their enforcement. In such instances, the mere existence of regulations lacking clear authority and validity should not confer any additional legitimacy or validity upon them.

Instead of striking down the Circular, the High Court decided to interpret it in a manner that aligns with the law. Referring to the Industrial Disputes Act of 1947, the High Court emphasized the prohibition of unfair labor practices and the rights of employees to organize and engage in collective bargaining. It asserted the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution, even for government employees, albeit subject to reasonable restrictions. [para. 9]

The High Court rejected the literal interpretation of the circular, stating that it cannot be enforced if it contradicts established legal boundaries. It underscores that employees have the right to negotiate with management and express grievances, even if critical, as long as these expressions fall within legal limits. The High Court highlighted the importance of preserving fundamental rights, even in the context of employment, and asserts that these rights remain intact for employees, despite their obligations under Conduct Rules. Therefore, the High Court ruled in favor of the Petitioner, protecting their right to freedom of speech and expression within the workplace. [para. 9]

The High Court remarked that “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).” While the High Court acknowledged that a government servant definitely could not claim the same extent of rights that a private citizen enjoyed and was governed by Conduct Rules, the Petitioner was entitled to freedom of speech and expression in the instant case. [para. 9]

Furthermore, the High Court emphasized the importance of the “right to vent,” acknowledging that in any organization, employees or members often have grievances against the management. The High Court acknowledged that such expression served a cathartic purpose, offering relief to individuals. The High Court acknowledged the natural tendency for employees to have issues with management and emphasized the importance of allowing complaints to be expressed and ventilated. It asserts that as long as these expressions do not harm the organization’s image, the management should not intervene. [para. 10]

The High Court drew a parallel between private conversations in one’s home, which are protected from regulatory frameworks, and discussions in encrypted virtual platforms with restricted access, arguing that such conversations deserve the same protection. The High Court underscored the concept of privacy as a fundamental right, both for individuals and groups, and distinguished between lawful discussions among group members and illegal activities like sharing child pornography or conspiring to commit crimes. The High Court criticized the idea of thought-policing, stating that private discussions on matters of common interest, even if expressed in ways considered distasteful, should not be targeted. The Court also raised concerns about potential intrusion into private conversations through advanced surveillance technology like Pegasus, asserting that charges cannot be based on information obtained through such means. However, the High Court emphasized that the content shared on encrypted communication platforms must still adhere to legal boundaries. The petitioner’s right to express opinions within a private WhatsApp group is thus protected by the court, reinforcing the importance of privacy and freedom of expression in the digital age. [para. 11]

The High Court referred to the case of Justice K. Puttaswamy (Retd.) v. Union of India, (2017), wherein the Supreme Court established the right to privacy as a fundamental right, to advocate for the concept of “group privacy.” The High Court emphasized that as long as a group’s activities remain lawful, their privacy should be upheld. The court noted that discussion on matters of common interest within a WhatsApp group should not be subject to scrutiny unless it involves illegal activities such as child pornography or conspiracies. The High Court cautioned against potential surveillance of private conversations and asserted that charges could not be based on information obtained through such means, even in an era of advanced technology like Pegasus. However, it stressed that the content shared on end-to-end encrypted platforms must still adhere to legal boundaries. [para. 12]

The High Court relied on Anil Kumar v Mahatma Gandhi, (2018);  Dr. Prasad v The Central University of Kerala, (2018); and Retheesh v Kerala State Electricity Board, (2021), to highlight the distinction between healthy criticism and misconduct, asserting that individuals, even if they were employees, should not be prevented from expressing their views in a democratic society. Furthermore, the High Court stressed that the mere act of posting on social media, even if it is denigratory, did not automatically constitute a disciplinary offense unless it was shown to be detrimental to the organization’s interests. [paras. 13-15] The High Court emphasized that while employees are required to show courtesy to their superiors, private discussions between colleagues can involve various forms of criticism. Whether such discussions occurred over a cup of tea at a shop or in a private WhatsApp group with restricted access, the context should not make a significant difference. [para. 16]

The High Court also cited the Lipika Paul v. State of Tripura, (2020), wherein a government employee faced disciplinary action for political activity on Facebook. The court, in that case, ruled that government servants have the right to free speech, subject to reasonable conduct rules, and the borders of such rules should not be unreasonably drawn. [para. 17] The High Court further referred to the decision in Anuradha Bhasin v. UOI, (2020), where the Supreme Court affirmed that freedom of speech and expression on the internet is an integral part of Article 19(1)(a) and subject to restrictions in accordance with Article 19(2) of the Constitution. [para. 18] Additionally, in Kaushal Kishor v. State of UP, (2023) the Supreme Court held that a person’s opinion, even if not in conformity with constitutional values, cannot be penalized unless it translates into actions resulting in harm or loss, and fundamental rights under Article 19 can be enforced against entities beyond the State and its instrumentalities. [para. 19]

In conclusion, the High Court quashed the charge memo, as the Petitioner’s act, involving the expression of opinions within a private WhatsApp group, does not amount to misconduct. The High Court held that the management failed to show how their interests were adversely affected, and the Petitioner had already apologized for the language used. Therefore, the High Court quashed the charge memo. [para. 20]