Sharing CM’s news clipping not misconduct, says Punjab and Haryana High Court

The Punjab and Haryana High Court has ruled that sharing or tagging of a newspaper clipping concerning the Chief Minister on social media does not fall within the definition of "misconduct" under the service conduct rules. The ruling came in a case where a government employee was terminated after being accused of posting material against the Chief Minister on Facebook.

The employee was issued show-cause notice for allegedly uploading comments critical of the Chief Minister, followed by a termination order dated February 18, 2020. Justice Vinod S Bhardwaj asserted the petitioner allegedly shared an “uploaded document in nature of a newspaper report” already available in public domain. The act of sharing was not accompanied by any remark, commentary or annotation attributable to the petitioner.

“The petitioner’s Facebook page served merely as a conduit through which the said report was disseminated further. In such circumstances, to impute to the petitioner an intention to criticise the government would be stretching the meaning of 'criticism' beyond its permissible limits under the Conduct Rules," Justice Bhardwaj asserted.

The court added that the petitioner, represented by counsel Sanchit Punia, neither generated the content nor expressed any opinion of his own. “Since the essential element of ‘misconduct’ under Rule 13 (of the Haryana Civil Services Government Employees’ Conduct Rules, 2016) requires an active act of criticism or expression of disapproval against the government by the government servant, a mere passive sharing of content created by a third party, without any independent endorsement, alteration or comment, does not satisfy the requirement of ‘indulging’ in criticism.”

Clarifying the constitutional position, Justice Bhardwaj observed: "I am compelled to clarify, as a matter of constitutional doctrine, that the Chief Minister, though occupying a position of primacy in the political and administrative framework of the state, is not in law synonymous with the ‘Government of the State.’ This distinction, far from being a matter of mere semantics, flows directly from the text and scheme of the Constitution of India."

Justice Bhardwaj asserted that the synonymous use of “government” and “Chief Minister” might exist in common parlance but could not be adopted in law. “The Chief Minister, though the head of the Council of Ministers and the visible face of the executive in a parliamentary system, does not, in his individual capacity, embody the entirety of the government.”

Justice Bhardwaj added the distinction carried “concrete consequences.” Causes of action arising from official acts or omissions were against the state, not the Chief Minister personally, writs and civil proceedings concerning governmental action were framed against the state, not political office-holders and “criticism of the government” under service jurisprudence referred to the institutional executive, not every statement, reportage or reproduction concerning the Chief Minister in his political or personal capacity.

Holding that disciplinary action rooted in conflating the Chief Minister with the government was legally unsustainable, Justice Bhardwaj concluded: "What, in truth, is no more than the dissemination of an existing report of a public functionary’s speech has been treated as misconduct against the government itself. This approach collapses persona into polity and imposes liability without any foundation in law. Such disciplinary action, being rooted in a misapprehension of the constitutional distinction between the state and its functionaries, cannot be sustained and deserves to be set aside."