Creating WhatsApp Group Without Employer's Permission Can't Be Ground To Compulsorily Retire An Employee: Bombay High Court
Merely creating a WhatsApp group by an employee without permission of the employer is not a ground to remove a person from his or her job, the Bombay High Court held on Wednesday (September 16) while quashing a voluntarily retirement order passed against a Professor, working with Tata Institute of Social Sciences (TISS), who was punished for creating a 'parallel' WhatsApp group. A division...
Merely creating a WhatsApp group by an employee without permission of the employer is not a ground to remove a person from his or her job, the Bombay High Court held on Wednesday (September 16) while quashing a voluntarily retirement order passed against a Professor, working with Tata Institute of Social Sciences (TISS), who was punished for creating a 'parallel' WhatsApp group.
A division bench of Justice Makarand Karnik and Justice Sandesh Patil noted that the petitioner Dr. Swapan Garain was given a 'compulsory retirement' punishment for creating a WhatsApp group allegedly providing placement for some financial considerations.
"There is no finding that, the funds which were allegedly tried to be raised were used for the benefit of the Petitioner. Although it is true that there was nothing on record to show that permission from TISS was obtained for formation of such group. Merely because permission was not obtained from TISS would not be cogent ground for imposing such excessive punishment upon the Petitioner. The finding that there was a parallel placement service is totally perverse. There is nothing to suggest that the placement services were offered for consideration and further the said consideration was diverted for the benefit of the Petitioner. As a matter of fact, the members of the WhatsApp group merely shared the placement offers in the industry on the WhatsApp Group," the bench noted.
Admittedly, the logo was initially used and was thereafter removed, the bench said, while highlighting that WhatsApp being a social media platform, merely starting a WhatsApp group and being member of the WhatsApp group without there being further finding of any personal gain diverted to the benefit of the Petitioner, in our view, the punishment of 'voluntarily retirement' is grossly disproportionate.
"In the words of Lord Diplock 'you cannot use a sledge-hammer to crack a nut.' In this case, although it is true that the permission of TISS was not taken for the purpose of starting the WhatsApp group, this itself would in our respectful opinion, not be sufficient for imposing such a disproportionate punishment. The Petitioner was a guide to many PhD students who were taking education under him. The Petitioner is a man of repute. In these circumstances, we hold that the punishment of compulsory retirement was quite disproportionate and therefore we are inclined to interfere with the said punishment imposed upon the Petitioner. The findings of the Inquiry Officer are perverse. The said punishment is so strikingly excessive that it cannot be allowed to be remained uncorrected while exercising the powers of judicial review. Merely starting a WhatsApp group by an employee without the permission of the organisation itself is not sufficient to put an end to long standing accomplished the career of a person," the bench held.
According to TISS authorities the Petitioner had created a parallel WhatsApp group styled as “TISSians Career Impact2” without the permission of the Institution and that too with the institute's official logo. This was a clear violation of Clause No.21 of the Code of conduct applicable to the TISS employees.
It was further alleged that the Petitioner by creating the parallel group for placement services, therefore, breached his service conditions. The WhatsApp group created by the Petitioner was nothing but virtually a placement service, soliciting students and alumni for his personal gains. The institute contended that this also amounted to engaging in business of placement services, which he being a full-time, permanent faculty of the Institute was prohibited from doing under the Service Rules. Apart from this, using the logo of the Institute, was also an infringement of intellectual rights of the Institute.
Therefore, from March 29, 2016 placed him under suspension under the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
However, the judges noted after perusing the WhatsApp group, that there is nothing to indicate that the Petitioner was charging money for the placement services. The judges noted from the chat dated February 23, 2016 which indicated that there was only for those persons who were looking for CSR opportunity in Mumbai.
"The chat makes it clear that the person sending the chat does not want to apply but it could be useful for any other person/member of the WhatsApp group. There is information regarding online services offered by the Government of India. This group was exclusively for the 'TISSians' from all streams. As a matter of fact, the chat dated February 24, 2016 clearly records that the platform was exclusively for 'TISSians career'. They made it clear that the members of the chat who were not 'TISSians' should be removed. This itself shows that there was no personal gain for the Petitioner in any manner," the judges noted.
With these observations, the bench quashed and set aside the punishment imposed on the petitioner and ordered the TISS authorities to reinstate him and pay 50 per cent back wages from March 2016 till the date he became eligible for retirement.
Appearance:
Advocate Jaiprakash Sawant appeared for the Petitioner.
Advocates Dhruva Gandhi and Dheer Sampat instructed by MV Kini & Co. represented TISS.
Case Title: Dr. Swapan Garain vs Tata Institute of Social Sciences (Writ Petition 1487 of 2018)