ALEXANDER KURIEN Vs. ANTHONY

JUDGEMENT

(1.) The petitioner is the proprietor and Manager of a coffee and pepper plantation, by name "Portland Estate" and respondents 1 to 4 are the workers in the said estate. The petitioner initiated disciplinary action against respondents 1 to 4, on two charges. The first charge/relates to the forcible burial of the dead body of one worker's mother, in the premises of the estate/without the consent of the petitioner. One Smt. 'Subbammar, the mother of a worker by name 'Ganesan', passed away on 09.09.2008. According to the petitioner, he offered to meet the expenses for the burial of the dead body, at the nearby burial ground or to have the body transported and buried at her native place in Tamil Nadu. But, respondents 1 to 4 refused to accept the said offer, and thereafter, they, with some other outsiders, on 10.09.2008 at about 2.30 p.m., in disobedience to the instructions of the petitioner, cut and removed certain yielding coffee plants forcibly and by threat buried the dead body of 'Subbamma P., in the estate premises, where there was no burial ground or no portion of land was set apart for burial of dead bodies. Ext. P1 charge sheet dated 18.09.2008 had been issued against respondents 1 to 4 on this count. Secondly, respondents 1 to 4 on 25.08.2008 at about 12 noon left their work unauthorisedly and obstructed the work of two other workers namely ' Jayakkodi' and 'Joy', abused them with filthy language, attempted to assault and threatened them. Ext. P2 charge sheet dated 15.10.2008 had been served on respondents 1 to 4 on this count. The domestic enquiry, on both the above changes, had been conducted by the Management and finally the Management came to the conclusion that the charge Nos. 1 and 2 above are of grave in nature and the workers should be dismissed from service and hence they ordered accordingly. Ext. P3 is the order of dismissal dated 28.09.2011 sent by registered post to the 1st respondent.

(2.) On the same day of issuance of Ext. P3, the petitioner had also submitted an application under S. 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act')} before the 5th respondent seeking approval of the action taken against respondents 1 to 4. Ext. P4 is the application, seeking approval for the dismissal of the 1st respondent. After considering the said application, the 5th respondent had passed Exts. P5 to P8 orders rejecting the application seeking approval of dismissal, in respect of respondents 1 to 4, on the ground that the dispute connected with the first charge, the forcible burial of the dead body of Ganesan's mother was pending before the Conciliation Officer and that S. 33(2)(b) of the Act permits the employer, to punish a workman, for a misconduct not connected with the dispute pending before the Conciliation Officer. Since the dispute relating to forcible burial of the dead body was pending before the Conciliation Officer, when the dismissal order was passed, the dismissal of respondents 1 to 4 does not fall under S. 33(2)(b) of the Act, and thereby, the approval cannot be granted to the said dismissal orders.

(3.) According to the petitioner, long after the commencement of the disciplinary action against respondents 1 to 4, he had been served with Ext. P9 letter dated 07.10.2010 alongwith a complaint sent by 17 workers of a Trade Union, by name 'P.T.T. Union', by the 5th respondent, seeking his explanation to the queries from the Office of the Chief Minister, on the said complaint made by the members of the Trade Union. Thereupon, the petitioner had submitted Ext. P10 detailed reply pointing out the falsity of the allegations. Thereafter, the petitioner had not received any intimation regarding any further steps taken on Ext. P9 complaint and to the knowledge of the petitioner Ext. P9 complaint had not culminated in any industrial dispute or conciliation proceedings. Therefore, the stand taken by the 5th respondent that the 'dispute' in connection with the first charge levelled against respondents 1 to 4, which culminated in dismissal, was pending before the Conciliation Officer, at the time when the dismissal order was passed, is absolutely wrong and unsustainable. It is with these averments the petitioner had filed this Writ Petition with a prayer to issue a writ of certiorari calling for Ext. P5 to P8 and quash the same and to issue a writ of mandamus directing the 5th respondent to grant approval to the punishment of dismissal imposed on respondents 1 to 4.