While reinstating the TISS Professor with 50% back wages, the Bombay High Court has held that mere creation of a WhatsApp group without the employer’s prior permission, without any proof that money was charged or consideration was diverted for personal benefit, does not justify the extreme penalty of compulsory retirement. The Court also cautioned that disciplinary punishment must be commensurate with the gravity of misconduct, and a penalty that is grossly disproportionate violates Article 14 of the Constitution.
The Division Bench comprising Justice M. S. Karnik and Justice Sandesh D. Patil after examining the WhatsApp communications on record, observed that there was no material to indicate that the Petitioner was charging money for any placement service or that any consideration was diverted for his personal benefit. The chat dated 23rd February 2016 was found to be merely a forward regarding a CSR opportunity in Godrej & Boyce, Mumbai, while the chat dated 24th February 2016 expressly clarified that the platform was exclusively for ‘TISSians career’ and that non-TISS members should be removed.
The Court noted that the registered alumni association, TISS Alums Association (TISSAA), which was registered on 11th March 2013, had not filed any complaint and was neither a witness nor a party to the proceedings. The Court further observed that the logo was initially used but was subsequently removed, and that the mere absence of permission to form the WhatsApp group could not, by itself, justify the extreme penalty imposed.
Briefly, Dr. Swapan Garain, a Professor at the Tata Institute of Social Sciences (TISS), Mumbai, was appointed on 13th July 1985 and had a long-standing career with the institute. On 29th March 2016, he was placed under suspension by the Disciplinary Authority (Respondent No. 3) following allegations that he had created a parallel WhatsApp group titled ‘TISSians Career Impact’ using the institute’s official logo, without obtaining permission.
The institute alleged that this amounted to running a parallel placement service for personal gain, violating Clause 21 of the Code of Conduct, engaging in trade or business while in service, infringing the institute’s intellectual property rights, and breaching confidentiality under Section 72 of the Information Technology Act, 2000. A charge memorandum was issued on 22nd April 2016, and a One Man Inquiry Committee headed by Prof. D.N. Sandanshiv was appointed. After the submission of the inquiry report, the Petitioner was punished with compulsory retirement.
