Kerala High Court upholds employee’s right to raise safety concerns on private WhatsApp group

The Kerala High Court recently opined that there is nothing wrong in an employee sharing messages on a private WhatsApp about safety concerns at the company he is employed with [Sujith T V v Fertilisers and Chemicals Travancore Ltd]..In a June 18 ruling, Justice Satish Ninan highlighted that if such actions were to attract disciplinary action from employers, it would violate the employee's freedom of speech and expression under Article 19(1)(a) of the Constitution.The Court made the observation while setting aside one of two disciplinary charges framed against a technician of a government-run fertilizer company.The technician had shared some posts about safety concerns in the handling of ammonia at a company unit. These messages were shared on a private WhatsApp group."The ‘WhatsApp’ group was a private one, within the technicians of the Company. The mere expression of concern on safety cannot attract the charge in the nature as levelled against him. The petitioner is justified in his contention that his fundamental right of freedom of speech guaranteed under Article 19(1)(a) is infringed. (Disciplinary charge) levelled against the petitioner, could not be sustained," the Court said..The petitioner-technician was an employee of Fertilisers and Chemicals Travancore Ltd. (FACT).After he shared the contentious WhatsApp messages, he was suspended on July 31, 2019, on two charges, namely (i) spreading false information through the WhatsApp group and (ii) unauthorized entry into a restricted area.The company claimed that the petitioner's actions tarnished its reputation and violated safety protocols.The petitioner expressed regret and his apology was accepted by the company. However, he later learnt that the company issued a formal warning as punishment. Since this warning would be entered into his service books and could affect his career, he approached the Kerala High Court challenging his suspension and the order issuing him a warning. .The petitioner's counsel argued that there had been no formal inquiry before the disciplinary action was taken against him. FACT (the employer company) countered that the messages posted by the employee in the WhatsApp group suggested that the workplace was unsafe. It added that such messages could incite other workers against the company and that the punishment imposed on the petitioner was a minor one..The Court observed that although the petitioner had apologised and admitted to having sent the WhatsApp posts, it did not mean he had admitted to the charge that the messages were "objectionable." "The mere fact that he expressed apology by itself does not mean that he admitted the charge. It could not have been considered as an admission of the charge, thus waiving the necessity for a formal enquiry.", the Court added.In such circumstances, the Court opined that an inquiry ought to have been conducted before imposing a disciplinary punishment. The Court proceeded to hold that sharing such WhatsApp messages on a private group was within the employee's rights, before setting aside the disciplinary charge framed on this aspect. .The Court, however, declined to interfere with the FACT's decision to issue a warning for unauthorised entry into the ammonia handling section. The Court noted that such an entry violated safety rules and that the petitioner had admitted to having entered this restriction area. "Since the petitioner is guilty of one charge and the punishment imposed is of the lowest category, there is no need to interfere with the same," the Court said..The petitioner was represented by advocates Kaleeswaram Raj, Thulasi K Raj, Varun C Vijay, and Maitreyi Sachidananda Hegde.Advocates M Gopalakrishnan Nambiar, K John Mathai, Joson Manavalan, Kurian Thomas, Paulose C Abraham, and Raja Kannan represented FACT and its representatives..[Read Judgment]