Madhya Pradesh High Court
I.D. Makrani vs The State Of Madhya Pradesh on 28 February, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 28 th OF FEBRUARY, 2024
WRIT PETITION No. 8370 of 2023
BETWEEN:-
I.D. MAKRANI S/O JALAL UD DIN MAKRANI, AGED
ABOUT 55 YEARS, OCCUPATION: SERVICE R/O
MAKRANI COMPOUND ALIRAJPUR DISTT. ALIRAJPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRIABHISHEK SHARDA, ADVOCATE.)
AND
1. THE STATE OF MADHYA PRADESH SECRETARY
VINDHYACHAL BHAWAN DISTRICT BHOPAL
(MADHYA PRADESH)
2. THE COMMISSIONER, INDORE DIVISION
COMMISSIONER, OFFICE, DISTRICT INDORE
(MADHYA PRADESH)
3. THE COLLECTOR. DISTRICT ALIRAJPUR
COLLECTOR OFFICE, ALIRAJPUR (MADHYA
PRADESH)
4. THE CHIEF EXECUTIVE OFFICER, ZILA
PANCHAYAT ALIRAJPUR ZILA PANCHAYAT
OFFICE, ALIRAJPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SUDHANSHU VYAS, PANEL LAWYER.)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
01. The petitioner has filed the present petition being aggrieved by order
of suspension dated 06.02.2023 passed by Commissioner Indore solely on the
ground that he forwarded objectionable political message in the Whatsapp
group of employees / OPS Union Alirajpur.
02. The petitioner was served with the show-cause notice dated by the
Chief Executive Officer, Zila Panchayat, Alirajpur that he has forwarded
objectionable message in Whatsapp group of employees. The petitioner
submitted a reply that his six years old daughter was operating with the mobile
and inadvertently she forwarded the message in the group, therefore, that was
not intentional and bona fide mistake and submitting apology. Since the reply
was not found satisfactory, as a result, he was suspended by the Commissioner
Indore vide order dated 06.02.2023 and now the charge-sheet dated 09.03.2023
(Annexure P/6) has been issued to the petitioner under Rule 3 of Civil Services
(Conduct) Rules, 1965 (for brevity ''Rules of 1965''). The petitioner has also
challenged the charge-sheet on the ground that he has not made any derogatory
remarks in public and this group is only confined to the members of the group.
The forwarded message is not his personal opinion, it was only a message
which came in his mobile from other group which he forwarded without any
intention to defame any political party or person or religion.
03. After notice, respondents have filed the reply by submitting that being
a Government employee it is not expected from the petitioner to forward such
political message even in the Whatsapp group. He must show absolute integrity
towards the Government. Therefore, he has rightly been subjected to
suspension and disciplinary enquiry. It is further submitted that the petitioner
has come up with the wrong plea that this message was inadvertently forwarded
by his daughter but in service book there is no such disclosure about his
daughter. He has only three sons, therefore, he took a false plea in the defence
hence, same is liable to be rejected.
I have heard learned counsel for the parties and perused the
record.
04. The petitioner has taken out the print of the online service book in
which name and date of birth of his daughter is mentioned, he has also filed the
birth certificate of his daughter. It appears that he has not got his service book
updated about the birth of daughter. The daughter's name is also mentioned in
the Family Samagra ID of the petitioner which is filed as Annexure P/7.
Therefore, petitioner has not taken a false plea that his daughter forwarded the
message by mistake.
05. Even otherwise, forwarding any message in a Whatsapp group does
not comes in any of the provision of Rule 3(1)(i) and (iii) of Rules of 1965. If
any member forwards a message in the Whatsapp group which does not mean
that it is his personal opinion. Any message in the form of text, photo or video
sent in Whatsapp group is confined to the members of the said group. It cannot
be said that message had been made public. The Whatsapp group is always
formed by the friends and like minded people amongst the contact list. Without
the prior permission, third person cannot be added in the group. If any member
of the group is not willing to continue, he may exit or delete the group from his
mobile. Therefore, it is personal and private group which has nothing to do with
office work of the Government. The Government has not issued any circular or
made statutory provision for Government employee / office to create Whatsapp
group, therefore, any activity of Government employee in the group cannot be
linked with serious disciplinary rules.
06. Similar issue came up for consideration before the High Court of
Madras in case of A. Lakshminarayanan V/s Assistant General Manager
[2023 SCC OnLine Mad 5314] in which following observation has been
made. The details are as under:
12. Let us assume that a group of employees are having a chat in one of their
homes. So long as it is a private chat, it cannot attract the regulatory frame work of
the management. 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.
13. The concept of privacy is now a recognized fundamental right [(2017) 10
SCC 1: AIR 2017 SC 4161 (Justice K. Puttaswamy (Retd.) v. Union of
India)]. Not only individuals but even groups have privacy rights. Time has come
to recognize the concept of "group privacy". So long as the activities of a group do
not fall foul of law, their privacy must be respected. If the members of a WhatsApp
group share child pornographic content, it is a crime and a punishable activity. 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. 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 I expressed my
disapproval, the petitioner unconditionally apologized in writing. 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. 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.
14. The Hon'ble High Court of Kerala (The Hon'ble Mr. Justice A. Muhamed
Mustaque) observed in WP(C) No. 27355 of 2018 dated 28.09.2018 (Anil
Kumar A.P v. Mahatma Gandhi University) as follows:
''4. Emotional outburst of a disgruntled, through social media in a louder voice is
part of his right of free speech......
5...
6. Servitude is an outlook of an individual and not a governing norm in a public
Institution. Discipline is a norm. Discipline and servitude are to be distinguished. If
an employee speaks out in the social media in a general perspective which is not
inconsistent with the collective interest of the Institution, that is part of his right of
free speech. No authority should expect one to be silent. Survival of public
Institution depends upon how it accounts for democratic values. Free expression is
the corner stone of democratic value. Every functionary of public power therefore,
must command liberty to their constituents."
15. The Hon'ble Judge in WP(C) No. 31703 of 2018 dated 05.12.2018 (Dr.
Prasad Pannian v. Central University of Kerala) observed as follows:
''5. Posting in a Face Book or social media has become a matter of concern for
public authorities. It is a matter of formulation of opinion of others. As pointed out
by this Court in several judgments, in the absence of any social media guidelines,
such post has to be viewed to find out whether it would be detrimental to the
collective interest of the University. The expression of opinion of a teacher in
regard to an action cannot be considered as a criticism. On a glance of the Face
Book posting, it can be seen that the petitioner was sympathising a student who
has to undergo such pain and trauma of criminalisation of his act. What would
constitute a misconduct would depend upon the nature of criticism or comment.
One cannot be prevented from expressing his views merely because he is an
employee. In a democratic society, every institution is governed by democratic
norms. Healthy criticism is a better way to govern a public institution."
16. The Hon'ble High Court of Kerala in WP(C) No. 21994 of 2020 dated
26.03.2021 (Retheesh P.V V. Kerala State Electricity Board Ltd.) Sustained
the contention of the petitioner's counsel that the posts made a private WhatsApp
group without any access to the public even if denigratory cannot ipso facto be
construed as a disciplinary infraction by an employee.
17. 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.
18. The Hon'ble High Court of Tripura (Hon'ble The Chief Justice Mr. Akil
Kureshi) in WP(C) No. 1363 of 2019 dated 09.01.2020 (Lipika Pual v. State of
Tripura) was concerned with the case of disciplinary action initiated against a
government employee who allegedly participated in a political rally and canvassed
for a political party in Facebook. While setting aside the charge sheet, it was held
that a government servant is not devoid of her right of free speech, a fundamental
right which can be curtailed only by a valid law. She was entitled to hold her own
beliefs and express them in the manner desired, of course, subject to not crossing
the borders laid down in the conduct rules. Even while respectfully agreeing with
what has been stated above, I would add that the borders cannot be unreasonably
drawn.
19. The Hon'ble Apex Court in Anuradha Bhasin v. UOI, (2020) 3 SCC 637
held that the freedom of speech and expression through the medium of internet is
an integral part of Article 19(1)(a) and accordingly, any restriction on the same
must be in accordance with Article 19(2) of the Constitution.
20. The Hon'ble Supreme Court of India in Kaushal Kishor v. State of UP,
(2023) 4 SCC 1 observed that 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 into 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 instrumentalities. or
its
21. It is well settled that a charge memo can be quashed if assuming that all the
acts attributed to the delinquent are taken to be true, still, it would not be amount
to act of misconduct. As already held, the petitioner is very much possessed of the
right to vent. The opinion was not expressed publicly. It was shared among the
members of a private WhatsApp group. The management has not disclosed as to
how they became aware of the post. It has not been shown as to how the bank's
interest has been affected. There are some political leaders who make statements
that are in bad taste and yet refuse to apologize. When I indicated that while the
petitioner can criticise the management, the language also matters, he readily
apologized. In these circumstances, the act committed by the petitioner cannot
amount to misconduct. The impugned charge memo is quashed.
22. This writ petition is allowed. No costs. Connected miscellaneous petitions are
closed.
07. In view of the above, Writ Petition is allowed. Order of suspension
dated 06.02.2023 passed by Commissioner Indore and charge-sheet dated
09.03.2023 are hereby quashed.
No order as to cost.
(VIVEK RUSIA)
JUDGE
Divyansh
