Such Acts Must Be Nipped In The Bud: Bombay High Court Upholds Termination Of Employee Over Provocative Facebook Posts

Justice Milind N Jadhav observed –

“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 allowed a writ petition filed by Hitachi Astemo Fie Pvt. Ltd. against an order dated May 31, 2023 of the Labour Court, Pune setting aside the charge-sheet and enquiry against the employee as illegal.

The employee had been working with Hitachi since 2003 and held a position in the assembly section. Wage settlement negotiations were going on between the company and the recognized union in 2017. It was alleged that being an office bearer of the union, the employee engaged in various forms of agitation, including a hunger strike.

Amid the negotiations, he posted two Facebook posts on February 20, 2017, which the petitioner company considered defamatory and intended to tarnish its image. The posts allegedly incited violence and invoked hatred and passion for committing offensive acts against the management/directors of the company.

A charge sheet was issued to the respondent, leading to a domestic inquiry, which ultimately resulted in the termination of his services on May 02, 2018.

The Labour Court, Pune, in its order dated May 31, 2023, held the charge-sheet and enquiry to be illegal. Dissatisfied with this decision, Hitachi filed the present writ petition.

It was alleged that the first Facebook post by the respondent expressed dissatisfaction with the company's management, highlighting the lack of salary increases for 18 months.

It allegedly warned of potential destruction if the management continued to neglect the workmen. The comments on this post included critiques of the government, and management, as well as suggestions of assaulting management personnel. The second post allegedly warned the management to improve the treatment of workmen, questioning their salary increases and competence.

The court examined the two Facebook posts and observed that the posts, written in Marathi, were defamatory and intended to incite hatred and passion against the management of the petitioner company.

“It is clearly seen that posting of such posts on the Facebook account and the comments received thereto are clearly an act of inciting hated and passion against the management… Next, 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, “atleast 2-3 persons from the management should be assaulted with swords””, the court said.

The court highlighted the lack of evidence supporting the claim that the employee's Facebook account was hacked and noted that the posts were indeed made by him. The court emphasized the sensitivity of the atmosphere due to ongoing wage negotiations and the potential for the posts to incite disorderly behaviour when read by any disgruntled workman.

It highlighted that a greater degree of restraint was required from office bearers of the recognized Unions as wage settlement talks were going on for several months.

“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”, the court opined.

The court concluded that the employee's conduct fell within the provisions of 'commission of misconduct' under clauses 24(d), 24(k), and 24(l) of the Model Standing Orders.

Accordingly, it set aside the Labour Court's order which deemed the misconduct to not have any adverse effect and quashed the charge sheet and enquiry.

The court upheld the fairness of the enquiry and the findings of the Enquiry Officer.

It directed the Labour Court, Pune, to complete the hearing on the remaining issues in the case within eight months from the date of the judgment.

Case no. – Writ Petition No. 13192 of 2023

Case Title – Hitachi Astemo Fie Pvt. Ltd. v. Nirajkumar Prabhakarrao Kadu