Can you be fired for posting allegations on social media against your employer? Delhi High Court answers

Petitioner filed PIL in 2017

• The petitioner joined CEL as a senior technical assistant and was promoted to senior manager (public relations) in January 2011.
• However, he faced various disciplinary proceedings, including in 2012, 2016 and 2017.
• It was placed on record that the Comptroller and Auditor General of India (CAG), in its report for the period of 2014-2016, made observations concerning administrative and financial irregularities in the employee’s organisation.

• He filed a Public Interest Litigation (PIL) before this court in January 2017 seeking an inquiry into the affairs of the said organisation in the light of the CAG report.
• Subsequently, in July 2017, the chairman-cum-managing director of the organisation issued a chargesheet and show-cause notice to the petitioner, which had various allegations against Kumar.
• Later, he was dismissed from service following the disciplinary proceedings in October 2018.
• The petitioner approached the court in 2018, but his plea was dismissed.
• Kumar later preferred a statutory appeal in November 2018.
• The appellate authority upheld the findings of misconduct but modified the penalty from “dismissal from service” to “removal from service”.

‘Removal from service, no justification’

The Delhi High Court made the following key observations while examining the actions of the employee concerned and the disciplinary actions taken by the organisation concerned:

• The petitioner publicly amplified allegations against the organisation through tweets and retweets.
• He pursued representations beyond the internal framework of the organisation concerned and was found to have attempted to mobilise external pressure.
• Such conduct can attract disciplinary actions and warrants a serious response, the court observed.
• Where the extreme penalty of removal or dismissal for service is imposed, one would expect the disciplinary order to reflect some calibration as to why such a measure was considered necessary and why lesser major penalties were regarded as inadequate to maintain institutional discipline.
• The orders of dismissal, which were later modified to removal of service, stand on the reputational harm and institutional threat, but do not articulate why penalties short of termination (within the major penalty range) would not sufficiently serve the objectives of discipline and deterrence in the present case.
• The petitioner had provided long service to the organisation concerned. This circumstance does not excuse misconduct, but it remains a legitimate factor in deciding where the action required the harshest consequence for the employee.
• The matter suggests an imbalance between the misconduct proved and the penalty imposed on the petitioner.
• The interference is confined strictly to the quantum of penalty and does not disturb the findings on misconduct.
• The previous orders are set aside to the limited extent that they impose the penalty of removal from service.
• The matter is remitted to the competent authority concerned to reconsider the penalty afresh.

‘Authenticity of disciplinary proceedings’

The Delhi High Court extensively looked into the disciplinary proceedings and penalties imposed on the petitioner to decide the matter. It observed:

• The disciplinary proceedings followed the usual procedure: a reply, an enquiry, written submissions, an enquiry report, a representation to the report, and a reasoned disciplinary order.
• The mere circumstance that the petitioner had earlier raised complaints, or had instituted a PIL in relation to the organisation, does not, without more, establish that the disciplinary process was colourable.
• A disciplinary authority does not lose its power or become disqualified just because the employee has criticised the management.
• The appellate authority independently examined the record, upheld the findings of guilt, and modified the penalty from dismissal to removal.
• The petitioner’s act and intent of posting allegations on Twitter (now X) against the organisation concerned, claiming that he did so for public interest, does not change the nature of the act.
• His subsequent deletion of the tweets does not weigh down his acts. It may only be considered to be a mitigating circumstance to be weighed at the stage of penalty.
• The petitioner’s reliance on the CAG observations and the pendency of the PIL is also insufficient to make the disciplinary findings erroneous or perverse.
• A CAG report may provide background to a grievance, but it does not, by itself, authorise an employee to adopt a mode of public communication that his organisation’s rules prohibit.

What petitioner’s counsel argued

One of the petitioner’s counsels, advocate Avadh Bihari Kaushik, argued that the disciplinary proceedings are vitiated by bias and malafides and are in violation of the principles of natural justice. He put forward various key arguments supporting his client:

• Tweeting or re-tweeting matters of public concern falls within the ambit of the fundamental right to freedom of speech and expression and, in the absence of any criminality or moral turpitude, cannot form the basis for disciplinary action.
• Communications or representations addressed to higher authorities cannot be treated as bringing “outside influence”, particularly when the grievances were against departmental authorities themselves.
• Even if the actions are assumed to constitute misconduct, the imposition of the major penalty of dismissal or removal from service is grossly disproportionate, arbitrary, and shocks the conscience of the court since the allegations do not involve corruption, moral turpitude, or any criminal offence.
• Letters or emails written by the petitioner’s wife, who has an independent legal identity, cannot be attributed to the petitioner as misconduct.
• The entire proceedings were initiated, conducted, and concluded under the authority and influence of the said organisation, against whom the petitioner had raised allegations of corruption.
• The charges against the petitioner essentially arise from tweeting and re-tweeting information that was already in the public domain.
• Such conduct cannot constitute misconduct, deliberate spreading of false information, or an act prejudicial to the interests or image of the said organisation.
• The petitioner had merely raised concerns about alleged corruption and financial irregularities in the Respondent organisation, which were also reflected in a CAG report.
• The petitioner immediately removed all the tweets upon receiving an objection from the said organisation; therefore, no continuing cause of action survived.

‘Tweets tarnished organisation’s image’

On the contrary, representing the employer, advocate Kunal Sharma submitted that the scope of judicial review in disciplinary matters is limited. He raised various other key arguments opposing Kumar’s plea:

• In the absence of any jurisdictional error, perversity, or manifest arbitrariness, the court should not interfere with the findings of misconduct or the punishment imposed.
• The petitioner was provided a full opportunity to defend himself in the disciplinary proceedings, and no violation of principles of natural justice has been established.
• The petitioner’s conduct amounts to serious and gross misconduct as he was found guilty of acting in a manner prejudicial to the interests of the said organisation.
• The petitioner spread false information, attempting to bring outside influence, and making representations bypassing prescribed channels.

• The findings of guilt returned in the departmental enquiry are supported by material on record.
• Although the disciplinary authority concerned initially imposed the penalty of “dismissal from service”, the appellate authority, while upholding the findings of misconduct, modified the penalty to “removal from service” so as not to permanently bar the petitioner from future government employment.
• The petitioner has admitted to having made the tweets and representations that form the basis of the charges.
• As an employee of the organisation concerned, the petitioner was bound by their rules, and the act of tweeting and re-tweeting defamatory material constitutes misconduct under the applicable rules.
• The organisation concerned operates in a commercial environment, and public dissemination of such material has a direct and adverse impact on its reputation and business interests.
• The petitioner had circulated news articles that had material affecting the reputation of the organisation concerned and were found to be prima facie defamatory by this court in civil proceedings.
• The petitioner’s public endorsement of such content amounts to deliberate tarnishing of the image of the organisation concerned.