Employee Has "Right To Vent", Management Cannot Take Action For Messages Sent In Private WhatsApp Group: Madras High Court

“There is something called “right to vent”. 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,” the court observed.

Justice GR Swaminathan of the Madurai bench held that though an employee was to show courtesy to a superior officer while gossiping privately, the superior officer may come in for all kinds of criticism. The judge added that when the management cannot interfere with gossip that takes place over a cup of tea, it could also not interfere just because the same exchange took place on a virtual platform.

“Judged by the above standard, 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,” the court said.

In the present case, the petitioner, Lakshminarayanan, was working as Group B Office Assistant (Multipurpose) in Tamil Nadu Grama bank and was also a trade union activist. He had challenged the charge memo issued in a disciplinary proceeding against him for posting objectionable messages mocking the administrative process/decisions and belittling the higher authorities in a WhatsApp group on 29.07.2022.

The court also observed that though a Government servant cannot claim the same extent of right that a private citizen enjoys as he is governed by conduct rules, it does not take away his fundamental right of free speech and expression guaranteed under Article 19(1)(a) of the Constitution. The court added that when even prisoners have fundamental rights, it would be ridiculous to say that a moment a person becomes a government employee, his rights are taken away.

“Article 19(1)(a) of the Constitution of India guarantees freedom of speech and expression. It is of course subject to reasonable restrictions. A government servant definitely cannot claim the same extent of rights which a private citizen enjoys. He is governed by Conduct Rules. The petitioner is also placed likewise. 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). The fundamental right insofar as it applies to the petitioner might have lost a bit of sheen but its core would remain with all vigor,” the court said.

Private Chats Will Not Attract Management’s regulatory Framework

The court noted that the management’s regulatory framework will not be attracted when the employees are having private chat in one of their homes. With the world becoming a global village, the court noted that the principles applicable to a chat in a home will also be applicable to what takes place in an encrypted virtual platform that has restricted access. The court also noted that what the management was seeking to do was thought policing.

“The common law principle is “everyman's home is his castle”. If bar room gossip is published, that would definitely attract contempt of Court. But then, so long as it remains private, cognizance cannot be taken. 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. Such an approach alone will be in consonance with liberal democratic traditions. We are yet to enter into the worlds envisaged by Aldous Huxley in “Brave New World” and George Orwell in “1984”. What the respondent proposes amounts to thought-policing,” the court noted.

Group Privacy

Noting that like individual privacy, time has come to recognise the concept of “group privacy” and so long as the activities of a group do not fall foul of law, their privacy needed to be respected. The court noted that if the members of a WhatsApp group were to send messages with respect to committing a crime, certainly action could be taken but when the members were merely discussing matters of common interest, it could not be attacked. The court further added that just because the management got information of such messages through a mole, the person who had posted the messages could not be proceeded against.

“In the coming days, powerful managements may be possessed with Pegasus-like technology providing them access to private conversations. Courts may dread such scenario, but then would still firmly say that 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,” the court added.

Thus, noting that the Lakshminarayanan had merely expressed his right to vent and had also readily apologized when it was pointed out that his messages were in bad taste, the court quashed the charge memo and allowed the petition.

Justice Swaminathan referred to the judgments of the Justice Muhamed Mustaque of Kerala High Court in Anil Kumar AP vs Mahatma Gandhi University and Dr.Prasad Pannian vs Central University of Kerala and the judgment of Chief Justice Akil Kureshi of Tripura High Court in Lipika Pual v. State of Tripura & Ors.

Supreme Court judgments in Anuradha Bhasin vs Union of India and Kaushal Kishore vs Union of India were also cited.