Kerala High Court rules in favour KSEB employee who was censured for defamatory posts against Chief Minister on Whatsapp Group

The Kerala High Court has ordered the Kerala State Electricity Board (KSEB), to regularise the period of suspension of an employee against whom an order of censure was passed for posting alleged defamatory content on a private WhatsApp group against the Chief Minister and the Government of Kerala (Retheesh PV v. KSEB)..A single-judge, Justice Devan Ramachandran ruled that even if the allegations against the petitioner of having posted such content were true, it would not be an infraction of discipline, merely because it had references against the government.."Even if these had been posted there, how this would amount to be an infraction of discipline, merely because it has references against the Government of Kerala or the Chief Minister in his personal capacity, especially when it is conceded that the KSEB is not a department of the Government but a Corporate entity, governed by its own Regulations," the judgment said. .The petitioner Retheesh PV, while working as a cashier at KSEB, was placed under suspension through an order dated September 29, 2016, on the ground that he had posted and was disseminating defamatory online posts against the Government of Kerala and its Chief Minister, on a private “Whatsapp” group by the name “Koombaram Boys”..A charge memo was issued later and the following three imputations were served on the petitioner:a) He had posted messages denigrating the Government of Kerala and defaming the Chief Minister personally;b) Such actions were in violation of the disciplinary standards of employees of the KSEB;c) It affected the image KSEB..The petitioner in his response to the charge sheet explained that “Koombaram Boys” was a private “Whatsapp” group and that what was posted was accessible only to the group members and not public. He also explained that the messages attributed to him were only re-posted by him, but was circulating in the said group at the instance of various others..This explanation was not accepted by the KSEB and disciplinary action was initiated against the petitioner, leading to an enquiry being conducted by the Assistant Executive Engineer of the Electrical Sub Division, Vellur..Based on the enquiry, the petitioner was awarded a punishment of “censure” and his period of suspension, between September 29, 2016 and December 19, 2016, was regularised only as eligible leave.He, therefore, approached the High Court seeking to set aside the KSEB order and to direct the board to regularise the period of his suspension as duty with all service benefits..The Court noted that from the documents available on record, what could be made out was that the petitioner was suspended based on an oral direction from the Deputy Chief Engineer, Electrical Section, Sreekandapuram, who in turn was guided by a report that appeared in the “Desabhimani Newspaper” on September 28, 2016. However, thereafter, when the Enquiry Officer was appointed by the Executive Engineer in November 2016, a mention was made therein regarding a complaint filed by one KV Gopinathan. In the said complaint, addressed to the Minister for Electricity, Government of Kerala, Gopinathan alleged that the petitioner posted “denigratory messages” against the Government and the Chief Minister in a private “Whatsapp” group called “Koombaram Boys”. Pertinently, this letter/ complaint was never marked in evidence, though it appeared to have greatly influenced the opinion of all the competent authorities in the hierarchy, who dealt with the disciplinary action of the petitioner, the Court observed. The Court also noted that the Deshabhimani newspaper based on which the order was passed was also not produced as evidence. .Regarding the messages itself, the Court said that alleged screenshots of the messages, said to have been posted by the petitioner in “Koombaram Boys,” are several in nature, dealing with various issues and in one or two of them, there are certain references to the Government of Kerala and the Chief Minister."However, what is crucial at this juncture is that, even the KSEB concedes that “Koombaram Boys” is a private “Whatsapp” group, to which the public have no access whatsoever; and therefore, it is rather inscrutable as to how a message posted in such a group should have spurred the KSEB to such extent, so as to place the petitioner under suspension for a fairly long period of time and then to find him guilty," the Court said not hiding its bewilderment. .The only incriminating evidence against the petitioner, the Court said, was the screenshots of the alleged messages posted by the petitioner."But nothing is available on record to show how the Presenting Officer – who produced it before the Enquiry Officer – obtained it and in what manner," the order said. This, the Court stated, is vitally relevant especially because the said document does not have any legally acceptable endorsement that it has been obtained or produced as per the provisions of the Information Technology Act, 2000."Therefore, merely because certain copies of the snapshots of messages in a private “Whatsapp” group had been produced before the Enquiry Officer, its veracity or genuineness could never have been gauged by the said Authority and this is singularly pertinent because no evidence was led by the KSEB to prove its forensic worth in any manner whatsoever," the Court ruled. Obviously, therefore, this is a classic case where there is absolutely no cogent or reliable evidence against the petitioner, nor have the imputations against him been proved in a manner acceptable in law, it added. .Moreover, even if the messages attributed to the petitioner were indeed posted by him, it should not have led to any enquiry, the Court held. This is because the messages were posted on a private Whatsapp group and would not amount to be an infraction of discipline, merely because it has references against the Government of Kerala or the Chief Minister more so because the KSEB is not a department of the government but a corporate entity, governed by its own regulations.."This certainly cannot be found favour with this Court in these times, when the right of free speech being affirmatively declared and celebrated as an imperative component of the right to meaningful life," the Court underscored. .Accordingly, the Court quashed the censure order with a consequential direction to the KSEB to regularise the period of suspension of the petitioner, treating it to be duty for all purposes.Advocates Thulasi K Raj, Kaleeswaram Raj, Varun C Vijay and Maitreyi S Hegde appeared for the petitioner while standing counsel MK Thankappan represented KSEB..[Read Order]