The Bombay High Court (“HC“) vide its judgement dated December 12, 2023, in the matter of Hitachi Astemo Fie Private Limited v. Nirajkumar Prabhakarrao Kadu [2023 SCC OnLine Bom 2652], while upholding the termination of an employee on account of inciting hate against the company, has held that the freedom of speech and expression cannot be allowed to be transgressed beyond reasonableness.

Facts

Hitachi Astemo Fie Private Limited (“Petitioner” / “Company”) had appointed Mr. Nirajkumar Prabhakarrao Kadu (“Respondent”) to work in the assembly section of the Company in 2003. The Respondent was an office bearer of a recognized union (“Union”) in the Company. In 2017, a dispute arose between the Union and the Company regarding wage settlement and the office bearers of the Union resorted to hunger strikes and rallies to pressurize the Petitioner. A settlement was arrived at between the parties after approximately twenty months. However, before the settlement, the Respondent posted two posts on his Facebook account (“Posts”), wherein he warned the management to not exploit the workmen, failing which the workmen will destroy the Company and its management. The Posts were alleged by the Petitioner to be defamatory towards the Petitioner and its management and were posted with the intention to incite the workmen during the dispute.

A charge-sheet was issued against the Respondent for uploading the Posts, alleging an act of ‘misconduct’ against him under Clauses 24(d) (Theft, fraud or dishonesty), 24(k) (Drunkenness, riotous disorderly or indecent behaviour) and 24(l) (Act subversive of discipline or good behaviour) of the Model Standing Orders (“Charge Sheet”). A domestic enquiry was conducted against the Respondent and he was found guilty of misconduct which led to termination of his services.

Respondent raised an industrial dispute to challenge his termination and dismissal which was referred to the 1st Labour Court, Pune (“Labour Court”). The Labour Court, after hearing the parties to the dispute on the two preliminary issues, concluded that the Charge Sheet and the enquiry conducted was illegal and not proper and the findings of the enquiry officer were perverse. Petitioner challenged the order of the Labour Court in the present writ petition.

Issues

• Whether the enquiry conducted against the Respondent is proper, legal and in accordance with the principles of natural justice.
• Whether the finding of enquiry officer is based on acceptable evidence.

Arguments

Contentions of the Petitioner:

The Petitioner submitted that the findings of Labour Court were incorrect since the Respondent had participated in the entire domestic enquiry with the assistance of an advocate, without raising any grievance regarding the procedure of the enquiry. The Petitioner stated that the Labour Court committed a gross error while holding that the Posts were not of a violent nature and did not amount to indecent behaviour.

It was contended by the Petitioner that the Posts, if read verbatim, incited and invoked hatred for committing offensive acts against the management of the Petitioner during the tense period of negotiations between the parties. The Petitioner submitted that no workman enjoys immunity from committing an act which is offensive and goes beyond reasonableness and therefore the findings of the Labour Court that the Posts were in the realm of freedom of speech and expression is a perverse finding.

It was contended that the findings of the Labour Court, that the act committed by the Respondent was not committed on the premises of the Company or in its vicinity and therefore charges levelled in the Charge Sheet could not be applied to the Respondent’s act, is completely erroneous since the Respondent had incited and invoked hatred which could have led to disastrous consequences against the management of the Petitioner, which would have been irreversible in nature.

The Petitioner also submitted that the Respondent had initially denied having published the Posts and took the defence that his Facebook account may have been hacked but failed to produce any evidence of his Facebook account having been hacked so as to disown the publishing of the Posts.

The Petitioner therefore submitted that the act committed by the Respondent squarely fell within the provisions of ‘commission of misconduct’ under Clauses 24(d), 24(k) and 24(l) of the Model Standing Orders.

Contentions of the Respondent:

The Respondent submitted that the Petitioner, in order to pressurize and harass the active members of the Union, has issued the Charge Sheet and suspension letter to the Respondent. He further argued that his act led to no disorderly conduct or violent atmosphere or any other act that could be classified as an imminent result of the Posts, thereby disturbing the peace in the Company.

The Respondent contended that the Posts were uploaded from outside the premises of the Petitioner and therefore the Respondent did not commit an act subversive of discipline or good behaviour on the premises of the Company which would attract the applicability of Clauses 24(d), 24(k) and 24(l) of the Model Standing Orders.

The Respondent also submitted that the Posts were in light of his fundamental right of freedom of speech and expression under the Constitution of India. The Respondent stated that passion for violence incited after reading the Posts cannot be equated with any violent act or any riotous or disorderly behaviour when in fact no such act or incident has occurred which was admitted by the witness of the management of Petitioner. The Posts were just a form of demonstration or agitation.

Observations of the HC

The HC observed that the Respondent failed to produce any evidence to the effect that his Facebook account was hacked and that he was not the author of the Posts. In that background, the HC held that it was an admitted position that the Posts were uploaded by the Respondent. The HC stated that the evidence clearly pointed out to the fact that the entire atmosphere in the Company was sensitive and agitations were being held against the Company in different forms. The Union was planning to fast until death and rally across the city. Therefore, the Posts uploaded in such a scenario could have led to any disorderly act.

The HC noted that discipline is the hallmark of any employee and regulation of behaviour of an employee is essential for the peaceful conduct of industrial activity. The HC observed that a Facebook account can be more conveniently accessed through a mobile phone and hence the submissions made by the Respondent that Respondent did not have a computer for uploading the Posts nor he was on the premises of the establishment is not proved.

The HC held that the Posts clearly amounted to misconduct when the aforementioned clauses of the Model Standing Orders are broadly interpreted. To a certain extent, commission of an act that may lead to a disorderly or riotous incident is covered by Clause 24(k) of the Model Standing Orders. Similarly, Clause 24(l) of the Model Standing Orders clearly covers the act of Respondent for having uploaded the Posts. The HC also observed that while Clause 24(d) of the Model Standing Orders may not apply to the act committed by Respondent, the word ‘dishonesty’ in Clause 24(d) of the Model Standing Orders has a wide connotation with respect to the employer’s business/property. The HC stated that in the present case, merely because no untoward incident took place, it cannot be a ground for discharging the act of posting the defamatory and provocative Posts. The Posts were directed against the Petitioner with a clear intent to incite hatred and were provocative. Further, the provocation was immediately seen in the form of likes and comments on the Posts and one such comment incited the passion to such an extent that it threatened to physically assault the management.

The HC also held that freedom of speech and expression cannot be allowed to be transgressed beyond reasonableness as it can lead to disastrous consequences. The HC noted that one cannot and should not wait for the consequences to occur in such cases.

Decision of the HC

The HC held that the adjudication on the two preliminary issues as concluded by the Labour Court cannot be accepted merely because the act of misconduct has not had any adverse effect on the peaceful working of the Company.

The HC held that the enquiry conducted and the findings returned by the enquiry officer against Respondent were absolutely fair and proper. The act committed by the Respondent stands squarely covered by Clauses 24(d), 24(k) and 24(l) of the Model Standing Orders. Therefore, the impugned order passed by the Labour Court was quashed and set aside by the HC.

VA View:

The present judgement by the HC strikes a balance between the employees’ right to freedom of speech and expression and their responsibilities towards the company. The HC has rightly upheld that freedom of speech and expression cannot be allowed to be transgressed beyond reasonableness and acts that are directed towards tarnishing the image of a company or inciting hate against a company should be nipped in the bud. The present ruling will also have a deterrent effect against misconduct by employees which unduly hampers the functioning of a company and its management.

For any query, please write to Mr. Bomi Daruwala at [email protected]

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