New Delhi: Asserting that such acts should be “nipped in the bud”, the Bombay high court Tuesday upheld the termination of an Hitachi Astemo Fie Pvt. Ltd. employee for sharing provocative Facebook posts against the company in 2017. Hitachi Astemo Fie is an auto parts manufacturing company.
“Freedom of speech and expression cannot be allowed to be transgressed beyond reasonableness. If that is allowed, it could lead to disastrous consequences. In a given case, one cannot and should not wait for the consequences to occur,” observed Justice Milind N. Jadhav.
The court added: “Such acts itself are required to be nipped in the bud. Otherwise it would convey a wrong signal to the society at large.”
The court was hearing an appeal filed by Hitachi, objecting to an order passed in May this year by a labour court in Pune, which had found that the chargesheet issued to the employee and the “domestic enquiry” conducted was illegal.
However, the high court did not agree. It opined that the “seriousness of the two Facebook posts clearly incited and provoked the reader against the Petitioner-Company”.
The employee in question was terminated in May 2018, after an enquiry found him guilty of misconduct, because he shared two posts on Facebook against the company, when he was an active office bearer of the union in the company. The posts were made when the company was in a dispute with the union over revision in wages and service conditions.
According to a translation of the two posts in the judgment, they warned the management to not “play with the patience of the workers or else…the management shall be destroyed”, and to not exploit the workmen, “since if the workmen erupt then they shall destroy the management”.
Considering the fact that the post was made at the time when wage settlement talks were going on, the court said that “a much greater degree of restraint is called upon to be exercised by the office bearers of the recognized Union who hold active parleys with the Petitioner–Company”.
“However if the same office bearers of the recognized Union themselves do not practice restraint and have faith in the statutory provisions of law and commit such an act by posting posts which invoke hatred and are by itself provocatory, such acts cannot/should not be pardoned,” the high court observed, adding, “A strong message needs to be sent out against such acts.”
Overturning the labour court’s finding, Justice Jadhav instead concluded that the enquiry conducted against the employee was “absolutely fair and proper and the findings returned by the Enquiry Officer are upheld as being proper”.
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The termination
The employee in the case was appointed to work in the assembly section of the company in 2003, but he was terminated in May 2018. As an employee, he was one of the office bearers of the union in the company. In 2017, there was a dispute over wage settlement, because of which “the atmosphere in the company became tensed”, according to the judgment.
The verdict notes that at the time, the office bearers of the union resorted to various agitations including hunger strike, to pressurise the company.
Ultimately, a settlement was reached between the parties regarding revision of wages and other service conditions after almost 20 months.
However, according to the judgment, during this time the employee shared two posts in Marathi on his Facebook account. The company alleged that these posts were defamatory, and were intended to tarnish the image and reputation of the company and the management in the eyes of the public at large. It alleged that the posts were made with an intention to instigate and incite the workmen during the pendency of the wage settlement.
The company told the court that the post received several likes and comments, with one comment reading, “The workmen should adopt a militant approach with weapons and assault the officials of the Company/Management and only then the settlement would be concluded”.
The company therefore issued a chargesheet to the employee for the two posts in February 2017, alleging ‘misconduct’. He was found guilty of misconduct in April 2018, and he was consequently terminated in May 2018.
The employee then challenged his termination before the labour court in Pune in 2019. This court framed five issues for adjudication of the reference, of which issue number one, regarding fairness of enquiry, and issue number two, regarding findings of the enquiry officer, were decided to be framed as preliminary issues.
After hearing the parties on the two preliminary issues, the labour court, in May this year, concluded that the chargesheet issued to the employee and the enquiry conducted was illegal, and the findings of the enquiry officer were perverse. The company then challenged this order in the high court.
‘Discipline hallmark of an employee’
In its judgment, the high court noted that the petitioner is an international company employing about 1,000 workers on different posts engaged in manufacture of carburetors for two- wheelers.
The first post by the employee, as noted in the judgment, spoke of how there was no increase in salary by the company in 18 months. He also posted that the management is not thinking about the workmen, that the “management should not play with the patience of the workers or else on the command given by the leadership, the management shall be destroyed”.
The court noted that the comment on this post said that, “workmen should take swords in their hands and cut (assault) 2 to 3 management persons”.
The next Facebook post warned the management that they should not mess with the life of the workmen, or else the workmen shall take it personally and shall teach the management a lesson. According to the judgment, the post spoke of how certain “management persons who were drawing salary of Rs 1-2 lakh were incompetent and had been looting the company like leeches and the workmen who were working for the company were given a raw deal”.
Taking note of the translations of the posts, the court asserted that the sharing of such posts on Facebook and the comments received on them “are clearly an act of inciting hatred and passion against the management”.
The court asserted that “discipline is the hallmark of any employee/workman when he is required to conduct himself as a workman”. It rejected the argument that the employee cannot be held liable for indiscipline on the premises of the establishment because the employee had not made the posts from the establishment.
“Regulation of behavior of workman is essential for peaceful conduct of industrial activity in the vicinity of the establishment as also within the premises of the establishment. In today’s technologically advanced world mobile phone is carried 24X7 by every person,” the court observed.
‘Absolutely fair and proper’
The employee had also contended that the two Facebook posts were not posted by him. However, the high court felt that the “evidence on record is to the contrary”.
The labour court had found that though the employee had committed misconduct, but it has not had any adverse effect on the peaceful working of the company. However, the high court did not agree with this finding. It noted that negotiations were going on at the time, and the “entire atmosphere in the Petitioner-Company was sensitive”.
“That there was complete restlessness amongst the workmen. In such a scenario and background, the aforesaid two Facebook posts were posted and therefore considering their natural meaning and the effect of such posts it can be clearly deduced that it could have led to any disorderly act,” it observed.
The court added: “Both the Facebook posts were in Marathi language and clearly invoked hatred and passion to commit an overt act”.
The court, therefore, quashed the labour court’s order and set it aside.
“As a consequence it is held that the enquiry conducted against Respondent-workman was absolutely fair and proper and the findings returned by the Enquiry Officer are upheld as being proper,” the court observed.
It also directed the labour court in Pune to complete the hearing on the employee’s plea on the remaining issues within a period of eight months.
(Edited by Poulomi Banerjee)
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