Court holds that posts in an end-to-end encrypted employee WhatsApp group are not public social media criticism and cannot, by themselves, justify dismissal.
The Himachal Pradesh High Court has set aside the termination of an HRTC conductor who was removed from service over two messages posted in a private WhatsApp group of conductors. Justice Jyotsna Rewal Dua held that the corporation had wrongly invoked contract clauses and social media guidelines to punish the employee for remarks made in a closed, end-to-end encrypted group that was not in the public domain.
The petitioner, Suneel Kumar, had been appointed as a conductor on contract basis after a selection process conducted through the Himachal Pradesh Staff Selection Commission. After joining service, HRTC issued social media guidelines on 21 August 2023, warning employees against posting or discussing government or corporation policy on social media platforms. Soon after, the petitioner was issued a show-cause notice over two messages posted on 4 September 2023 in a WhatsApp group called “Himachal Parichalak Ekta.”
The corporation alleged that the messages violated Clause 3 and Clause 8 of the contract agreement dated 7 December 2021, as well as the social media guidelines. The show-cause notice also stated that the undersigned had already concluded that the petitioner was “not a fit person to be retained in service.” After considering his reply, HRTC terminated his services on 10 October 2023.
The High Court found the action unsustainable. It noted that Clause 3 of the contract agreement applied only where the employee’s performance or conduct was not good, or where a regular incumbent had been appointed against the vacancy. Neither situation existed in this case. Clause 8, which deals with anti-management activities such as strikes, refusal to work, or exerting outside pressure, was also held to be inapplicable.
The Court further held that the social media guidelines could not be stretched to cover a private WhatsApp group. Relying on the reasoning in A. Lakshminarayanan v. Assistant General Manager, the Court observed that WhatsApp is primarily a communication platform and that employees have a right to vent grievances in a private group. Such conversations, unless made public or amounting to real misconduct, cannot be treated as misconduct warranting termination.
Justice Dua also criticized the manner in which the show-cause notice was issued, noting that it had already pre-judged the issue by declaring the petitioner unfit for continued service. This made the subsequent hearing a mere formality and rendered the termination order mechanical and arbitrary. The Court said HRTC had not even properly examined the content of the messages or the context in which they were shared.
Allowing the writ petition, the High Court quashed the termination order dated 10 October 2023 and directed that the petitioner be treated as continuously in service with all consequential benefits in accordance with law.
Bottom Line:
Service Law - Contract employee - Termination based on messages posted in a private WhatsApp group - Private end-to-end encrypted WhatsApp group of employees is not a public social media platform - Mere expression of views or venting of grievances in such private group, without criticism on public platform or falling within contractual misconduct clauses, cannot justify termination - Show cause notice issued after pre-judging employee's unfitness vitiates action.
Statutory provision(s): Article 226 of the Constitution of India, 1950, Clause 3 of Contract Agreement dated 07.12.2021, Clause 8 of Contract Agreement dated 07.12.2021, Social Media Guidelines issued by HRTC on 21.08.2023
