Disciplinary actions must be substantiated by credible evidence, and the right to free speech can limit the scope of employer disciplinary mechanisms based on private communications.

JUDGMENT

Dated this the 26th day of March 2021 The petitioner, while working as a Cashier in “Mathamangalam” Electrical Section, under the Kerala State Electricity Board Ltd. (KSEB), was placed under suspension through an order dated 29.09.2016, alleging that he had posted and was disseminating defamatory online posts against the Government of Kerala and its Chief Minister, in a private “Whatsapp” group by name “Koombaram Boys”.

2. Subsequent to this, a charge memo was issued to the petitioner on 26-10-2016, with three imputations, namely:

a) He had posted messages denigrating the Government of Kerala and defaming the Chief Minister personally.

b) That afore actions are contrary to the disciplinary standards of employees of the KSEB and c) That his action, as afore, has caused the good name of the KSEB to be dented.

3. The petitioner filed his response to the charge sheet explaining that “Koombaram Boys” was a private “Whatsapp” group and that what was posted therein had absolutely no privy or access to the public. He also explained that the massages that are attributed to him were only re-posted by him, but was circulating in the said group at the instance of various others.

4. However, 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. The petitioner says that the enquiry was a virtual farce, since only two witnesses were examined; one of them – who is a Sub Engineer of the KSEB – testifying that he had absolutely no information about the allegations; while the second person – who was stated to be a member of the “Koombaram Boys” group – affirming that certain massages were posted by the petitioner to defame the Government of Kerala and the Chief Minister.

5. The petitioner says that based on the afore, he has now been awarded a punishment of “censure” and that his period of suspension, between 29.09.2016 and 19.12.2016, has been regularised only as eligible leave. He, therefore, prays that Exts. P1, P2, P4, P7, P9, P11 and P14 be set aside and the KSEB be directed to regularise the period of his suspension as duty for all service benefits.

6. I have heard Smt.Thulasi. K. Raj – learned counsel for the petitioner and Sri.M. K. Thankappan – learned Standing Counsel for the KSEB.

7. The documents available on record, particularly those which have been produced by Sri.M.K. Thankappan along with his memo dated 18.03.2021, would show that the petitioner was suspended based on an oral direction from the Deputy Chief Engineer, Electrical Section, Sreekandapuram, who appears to have been guided by a report that appeared in the “Desabhimani Newspaper” on 28.09.2016. However, thereafter, when the Enquiry Officer was appointed by the Executive Engineer, through his order dated 29.11.2016, a mention is seen made therein regarding the complaint of a certain person by name Sri. K.V. Gopinathan and the said document is available as document Nos.1 and 7, produced along with the afore memo of Sri.M.K.Thankappan. In the said letter – which is seen addressed to the Minister for Electricity, Government of Kerala - the aforementioned Sri.K.V. Gopinathan alleges that the petitioner is posting “denigratory messages” against the Government and the Chief Minister in a private “Whatsapp” group called “Koombaram Boys”. Pertinently, this letter has never been marked in evidence, though it appears to greatly influenced the opinion of all the competent Authorities in the hierarchy, who dealt with the disciplinary action of the petitioner.

8. More importantly, even though as said above, the order of suspension refers to a report in the “Desabhimani Newspaper”, the same had, admittedly, never been produced before the Enquiry Officer; and going by the Enquiry Report, there are only two documents produced and marked, namely, the copies of the screenshots of the alleged messages sent by the petitione