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2021 DIGILAW 358 (KER)

Retheesh v. Kerala State Electricity Board Ltd.

2021-03-26

DEVAN RAMACHANDRAN

body2021
JUDGMENT : 1. 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 K.S.E.B. 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 messages 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 K.S.E.B. 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 K.S.E.B. – 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 K.S.E.B. 7. 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 K.S.E.B. 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 petitioner, as Ext.P1; and the disciplinary Regulations applicable to the K.S.E.B., as Ext.P2. These documents have also been made available to this Court by the learned Standing Counsel for the K.S.E.B. and I have examined them very carefully. 9. The 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. 10. 9. The 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. 10. However, what is crucial at this juncture is that, even the K.S.E.B. 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 K.S.E.B. to such extent, so as to place the petitioner under suspension for a fairly long period of time and then to find him guilty, thus slapping the punishment of censure on him. The only alleged “incriminating” evidence against the petitioner before the Enquiry Officer is Exhibit P1 series, which are the copies of the screenshots of the alleged messages posted by the petitioner; but nothing is available on record to show how the Presenting Officer – who concededly produced it before the Enquiry Officer – obtained it and in what manner. This becomes vitally relevant especially because the said document does not have any legally acceptable endorsement that is has been obtained or produced as per the provisions of the Information Technology Act, 2000. 11. 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 K.S.E.B. to prove its forensic worth in any manner whatsoever. 12. Crucially, even though the K.S.E.B. relies upon a letter issued by the aforementioned Sri.Gopinathan, the said person was not summoned or examined as a witness; nor, as I have already said above, the competent Authority of the newspaper – which allegedly published a report against the petitioner – been called or his statement recorded in the proceedings. 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. 13. That said, I must also deal with the adscititious submissions of Smt.Thulasi. 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. 13. That said, I must also deal with the adscititious submissions of Smt.Thulasi. K. Raj, that though her client did not post any of the messages that are attributed to him, even if it be assumed so, it should not have led to any enquiry against him at the instance of the K.S.E.B., because: for one, the posts were made admittedly in a private “Whatsapp” group, without any access to the public; and for the second, because, even if there was any denigratory content in it against the Government or against the Chief Minister, it cannot ipso facto be construed as a disciplinary infraction by an employee of the K.S.E.B. She added to her submissions by saying that, like every citizen of this country, the petitioner also has the right of free speech and that this has been sought to be stifled by the K.S.E.B., acting in terrorem, by first suspending him and then censuring him. I find the afore submissions of Smt.Thulasi. K. Raj to be on terra firma because, it is not comprehendible from the records as to how the Presenting Officer obtained the copies of the snapshots of the alleged posts in the private “Whatsapp” group “Koombaram Boys”; and 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 by Sri.M.K. Thankappan that the K.S.E.B. 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 – with only the well recognised restrictions circumscribing it – being affirmatively declared and celebrated as an imperative component of the right to meaningful life. In the afore circumstances, I have no hesitation in allowing this Writ Petition and to thus quash the impugned orders herein; with a consequential direction to the K.S.E.B. to regularise the period of suspension of the petitioner, treating it to be duty for all purposes. This Writ Petition is thus ordered.