#management’smole

[seemabhatnagar]

Expressing Grievances in Messages Sent in a Private WhatsApp Group by employee!!

An employee is very much possessed of the right to vent provided the opinion is not expressed publicly. Here, it was it was shared among the members of a private WhatsApp group. The management failed to show as to how the bank's interest has been affected by private chat. Management can step in only if in the process, the image of the organization is affected, but not before that.

A Lakshminarayanan v. The Tamil Nadu Grama Bank, Hasthampatti Salem WP 9794 & 8689 of 2023 before Hon’ble High Court of Madras @ Madurai Judgement pronounced on 08.08.2023 by Hon’ble Mr. Justice G R Swaminathan Writ Petition was allowed and Charge Memo was quashed.

Petitioner A Lakshminarayanan filed Writ of Certiorari for quashing the charge sheet issued against him by the Respondent Bank. The petitioner was suspended 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 by the Hon’ble Court. Suspension order was revoked by the Bank, but Bank issued chargesheet against the petitioner.

Submission of the Bank’s Counsel

As per the conduct Rules and the instruction issued by the management, the act committed by the petitioner constitutes misconduct. A circular was issued by the Bank requiring the employees to comply with and obey the instructions and not to use social media platform for expressing about working of the Bank or its official. Since the petitioner has contravened the same, hence penalties for breach stands attracted.

Background of the case

The petitioner posted a message in a WhatsApp group “AIRBEATN and Puduvai According to him, it is a private group that exists to organize their union activities and to communicate among them.

Remarkable Observation by the Hon’ble Madras High Court, Madurai Bench

1. The Industrial Disputes Act, 1947 forbids unfair labor practices. 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, it amounts to unfair labor practice. 2. 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. 3. Article 19(1)(a) of the Constitution of India guarantees freedom of speech and expression subject to reasonable restrictions. 4. 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). 5. Every employee or a member of an organization will have some issue or the other with the management. 6. It is in the interest of the organization that the complaints find expression and ventilation. It will have a cathartic effect. 7. If in the process, the image of the organization is affected, then the management can step in but not till then. 8. The common law principle is “everyman's home is his castle”. 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. 9. What the Bank proposes amounts to thought-policing. 10. So long as the activities of a group do not fall foul of law, their privacy must be respected. 11. 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. 12. 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 this Court expressed the disapproval, the petitioner unconditionally apologized in writing. 13. 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. 14. In the coming days, powerful managements may be possessed with Pegasus-like technology providing them access to private conversations. 15. 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 16. 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. 17. If this had taken place over a cup of tea outside a shop, the management could not have taken note of it. 18. Merely because the same exchange took place among a group of employees on a virtual platform with restricted access, it cannot make a difference. 19. Hon’ble Madras High Court referred a recent Judgement of the Hon'ble Supreme Court of India “Kaushal Kishor v. State of UP” ……. 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 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.

Decision

The act committed by the petitioner doesn’t amount to misconduct and the chargesheet was quashed. Seema Bhatnagar