Kerala High Court
Biju P.A vs The Plantation Corporation Of Kerala ... on 12 November, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
2024:KER:83773
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 12TH DAY OF NOVEMBER 2024/21ST KARTHIKA, 1946
WP(C) NO. 8542 OF 2024
PETITIONER:
BIJU P.A.,
AGED 44 YEARS,
S/O P.A ANTHONY, PAINADATH HOUSE,
KALADY PLANTATION P.O., BLOCK 8,
KALLALA ESTATE, DIVISION- G, KALADY,
ERNAKULAM DISTRICT, PIN - 683581
BY ADVS.
K.R.PRATHISH
R.LAKSHMI NARAYAN
P.K.SREEVALSAKRISHNAN
S.UNNIKRISHNAN (NELLAD)
KRISHNA DAS
RESPONDENTS:
1 THE PLANTATION CORPORATION OF KERALA LTD.,
REGD. OFFICE AT KANJIKUZHI,
KOTTAYAM, PIN - 686004
REP. BY ITS MANAGING DIRECTOR.
2 DIRECTOR BOARD,
THE PLANTATION CORPORATION OF KERALA LTD.,
REGD. OFFICE AT KANJIKUZHI,
KOTTAYAM, PIN - 686004
REP. BY ITS CHAIRMAN.
3 THE MANAGER,
THE PLANTATION CORPORATION OF KERALA LTD.,
KALLALA ESTATE, KALADY PLANTATION P.O.,
KALADY, ERNAKULAM, PIN - 683581.
2024:KER:83773
W.P.(C) No.8542/2024
:2:
4 REGIONAL JOINT LABOUR COMMISSIONER
CIVIL STATION,KAKANAD,
THRIKKAKRA,
PIN - 682030
5 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADVS.
MANU GOVIND
K.S.ARUN KUMAR
AMRUTHA KP(K/000800/2019)
AMRUTHA PS(K/589/2019)
VIJAY SANKAR V.H.(K/1368/2020)
JERIN JOSEPH(K/2965/2022)
ARYA B. VENUGOPAL(K/003672/2022)
AYISHA RIFATH K.(K/637/2024)
AMRUTHA P.S.(K/001317/2024)
ELDHO BABY(K/583/2023)
ANIMA M., GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 13.08.2024, THE COURT ON 12.11.2024 DELIVERED
THE FOLLOWING:
2024:KER:83773
W.P.(C) No.8542/2024
:3:
N. NAGARESH, J.
`````````````````````````````````````````````````````````````
W.P.(C) No.8542 of 2024
`````````````````````````````````````````````````````````````
Dated this the 12th day of November, 2024
JUDGMENT
~~~~~~~~~
The petitioner is a worker of Division G of Plantation
Corporation of Kerala at Kallala Estate of Kalady Plantation.
The petitioner seeks to set aside Ext.P17 order passed by the
4th respondent-Regional Joint Labour Commissioner.
2. The petitioner states that he is a member of
AITUC Union and the 5th respondent is a member of CITU
Union in the Plantation. While the petitioner was the Senior
Tapper, he reported to the Management that the 5 th
respondent and certain other lady workers are not doing the
tapping work properly. Explanations were sought by the
Management from them.
2024:KER:83773
3. After the incident, due to animosity to the
petitioner, the 5th respondent preferred a false complaint,
Ext.P3. In Ext.P3 complaint, the 5th respondent alleged that
the petitioner is mentally torturing her unnecessarily. An
enquiry was conducted in this regard and the Estate Manager
reported that there was no mental harassment as alleged.
The 3rd respondent, however, issued Ext.P4 show-cause
notice requiring to show-cause why disciplinary proceedings
should not be taken against the petitioner. The petitioner
submitted Ext.P5 reply. The 3rd respondent accepted Ext.P5
reply.
4. The 5th respondent again filed another
complaint against the petitioner on 30.06.2022. The said
complaint also did not contain any allegation of sexual
harassment by the petitioner. The 3rd respondent-Estate
Manager again reported that the allegations in the complaint
will not come under the purview of the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal)
2024:KER:83773
Act, 2013 and hence the complaint was not forwarded to the
Internal Complaints Committee. In spite of Ext.P6 report, at
the instance of the Managing Director, the complaint was
forwarded to the Internal Complaints Committee.
5. The Internal Complaints Committee,
however, made Ext.P7 report to the effect that the petitioner
is guilty under the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013.
After drawing Ext.P7 report dated 28.09.2022, after a lapse of
more than six months, the petitioner was served with Ext.P8
proceedings stating that the petitioner is found guilty and
hence he is being transferred to Athirappilly Estate from
Kallala Estate.
6. The petitioner was never served with any
notice of the complaint and he had no opportunity to defend
the complaint. The petitioner therefore filed Ext.P9 appeal
before the 2nd respondent. As the appeal was not
considered, the petitioner filed W.P.(C) No.25644/2023
2024:KER:83773
before this Court. The learned Single Judge disposed of the
writ petition directing the 2nd respondent to consider Ext.P9
appeal. The 5th respondent challenged Ext.P10 judgment in
W.P.(C) No.25644/2023. A Division Bench of this Court
disposed of W.A. No.1723/2023 directing that the appeal
should be considered with notice to the 5th respondent.
7. The 2nd respondent who considered the
appeal, constituted a Sub Committee to study and report on
Ext.P7 report of the Internal Complaints Committee. The Sub
Committee submitted Ext.P12 report stating that Ext.P7 is not
in accordance with law and the findings against the petitioner
cannot be sustained. The 2nd respondent approved Ext.P12
report as per Ext.P13 proceedings.
8. In the meanwhile, the 5th respondent had
filed an appeal before the 4th respondent challenging Ext.P7
report and Ext.P8 order. The petitioner filed Ext.P15
objection to the appeal. The Plantation Corporation also filed
Ext.P16 statement. The 4th respondent passed Ext.P17 order
2024:KER:83773
allowing the appeal and imposing ₹50,000/- as fine to the
petitioner in addition to the transfer.
9. The petitioner states that Internal
Complaints Committee was only a fact finding Committee.
The Internal Complaints Committee conducted an enquiry
without complying any of the procedure mandated by law,
and in violation of the principles of natural justice. The 5 th
respondent had raised new allegations against the petitioner
before the ICC at the time of hearing. The said allegations
were not stated in Ext.P3 complaint. The report prepared by
the ICC is therefore unsustainable.
10. In fact, the 2nd respondent had submitted a
report that Ext.P7 is not in accordance with law and the
findings against the petitioner will not sustain. The petitioner
would urge that since the Sub Committee of the 2 nd
respondent had submitted a report that Ext.P7 is not in
accordance with law, the findings against the petitioner
cannot be sustained. Ext.P14 appeal is therefore not
2024:KER:83773
maintainable.
11. The 5th respondent filed counter affidavit.
The 5th respondent stated that respondents 1 to 3 were liable
to dispose of Ext.P3 complaint within 90 days. Respondents
1 to 3 failed to take immediate action. Even after complaining
of serious misconduct, the 5th respondent was permitted to
continue to work in the same workplace. Respondents 1 to 3
have been taking a soft approach towards the petitioner who
is a highly influential person.
12. The petitioner was transferred from Kallala
Estate to Athirappilly Estate when the Internal Complaints
Committee found him guilty. Ext.P8 proceedings of the
Committee, finding the petitioner guilty and transferring him to
another workplace as final punishment, goes against the
statute. The petitioner filed Ext.P9 appeal against Ext.P8
order. Ext.P9 appeal filed before the 2nd respondent is
against the statute. As per Section 18 of the PoSH Act, 2013,
the appellate authority for considering appeal is Regional
2024:KER:83773
Joint Labour Commissioner.
13. As the 5th respondent was aggrieved by the
non-speaking nature of ICC report, she filed Ext.P14 appeal
before the Regional Joint Labour Commissioner. While the
appeal of the 5th respondent was pending before the Regional
Joint Labour Commissioner, respondents 1 and 2 considered
Ext.P9 appeal filed by the petitioner and passed Ext.P13
order reappointing the writ petitioner to the same workplace
where the 5th respondent was working.
14. The 5th respondent stated that the entire
proceedings by respondents 1 and 2 is a gimmick and
mockery and is against natural justice. The writ petition is
therefore without any merit and it is liable to be dismissed.
15. I have heard the learned counsel for the
petitioner, the learned Standing Counsel appearing for
respondents 1 to 3, the learned Government Pleader
representing the 4th respondent and the learned counsel
appearing for the 5th respondent.
2024:KER:83773
16. The 5th respondent filed her original
complaint before the 3rd respondent-Manager on 20.04.2022
as per Ext.P3. The 3rd respondent-Manager conducted an
enquiry which revealed that there was no mental harassment
as alleged by the petitioner. On 30.06.2022, the 5 th
respondent filed another complaint to the Managing Director
stating that no action has been taken on Ext.P3 complaint.
Though the 3rd respondent informed the Managing Director
that the allegations in the subsequent complaint also will not
come under the purview of the Sexual Harassment of Women
at Workplace (Prevention, Prohibition and Redressal) Act,
2013, the Managing Director ordered to forward Ext.P3
complaint to the Internal Complaints Committee.
17. The Internal Complaints Committee
submitted Ext.P7 report holding that the petitioner is guilty
under the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013. On the
basis of Ext.P7, the petitioner was transferred to Athirappilly
2024:KER:83773
Estate from Kallala Estate as per Ext.P8. The petitioner filed
Ext.P9 appeal before the Board of Directors. On the
petitioner's appeal, the Managing Director passed Ext.P13
order transferring back the petitioner to Kallala Estate.
18. In the meanwhile, the 5th respondent filed
Ext.P14 appeal before the 4th respondent-Regional Joint
Labour Commissioner. The Regional Joint Labour
Commissioner passed Ext.P17 order allowing the appeal of
the 5th respondent and imposing ₹50,000/- as fine on the
petitioner in addition to the transfer. The petitioner is
challenging Ext.P17 order.
19. The grievance of the petitioner as well as
that of the 5th respondent arises from the consequential action
taken pursuant to the report of the Internal Complaints
Committee dated 28.09.2022. The petitioner, who is the
alleged delinquent, contends that pursuant to the report dated
28.09.2022 he was transferred from Kallala Estate to
Athirappilly Estate. Subsequently, the petitioner filed an
2024:KER:83773
appeal dated 27.07.2023 to the Board of Directors of the
Company. This Court, as per Ext.P10 judgment, directed the
Board of Directors to consider the appeal.
20. The Director Board, in compliance of the
judgment of this Court in W.P.(C) No.25644/2023, constituted
a Sub Committee and on the basis of the report of the Sub
Committee, transferred the petitioner back to Kallala Estate
finding that the earlier transfer is unjustified.
21. The 5th respondent was not a party to
W.P.(C) No.25644/2023. The 5th respondent filed W.A.
No.1723/2023. This Court closed the writ appeal holding that
any appeal from the order passed by the Internal Complaints
Committee preferred by the petitioner herein shall be
considered with notice to the 5th respondent. It was made
clear that if the 5th respondent is aggrieved by the order, the
5th respondent can also file an appeal which will also be
considered in accordance with law.
2024:KER:83773
22. The petitioner preferred appeal before the
Board of Directors of the Company, whereas the 5th
respondent filed appeal before the Regional Joint Labour
Commissioner. The Regional Joint Labour Commissioner
passed order dated 15.02.2024 imposing a fine of ₹50,000/-
on the 5th respondent. Thus, two different authorities have
considered the appeal arising from the report of the Internal
Complaints Committee and has passed two different orders.
Which of the two authorities are competent to consider
appeals, is the question arising in this writ petition.
23. Section 18 of the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013 provides for appeals and reads as follows:
18. Appeal
(1) Any person aggrieved from the
recommendations made under sub-section (2)
of section 13 or under clause (i) or clause (ii) of
sub-section (3) of section 13 or sub-section (1)
or sub-section (2) of section 14 or section 17 or
non-implementation of such recommendations
may prefer an appeal to the Court or tribunal in
accordance with the provisions of the service
rules applicable to the said person or where no
such service rules exist then, without prejudice
2024:KER:83773
to provisions contained in any other law for the
time being in force, the person aggrieved may
prefer an appeal in such manner as may be
prescribed.
(2) The appeal under sub-section (1)
shall be preferred within a period of ninety days
of the recommendations."
24. It is clear from Section 18 that if there is a
Court or Tribunal in accordance with the provision with the
Service Rules, the person aggrieved may prefer appeal to
that authority. Where no such Service Rules exist, the
person aggrieved may prefer an appeal in such manner as
may be prescribed. If there is no appeal provision in the
Service Rules, appeals lie to the Regional Joint Labour
Commissioner, who is the notified authority in the State of
Kerala.
25. Neither the petitioner nor the 5th respondent
has made available any Service Rules applying to the
employees of the Plantation Corporation of Kerala Limited.
However, when the issue was taken up by this Court in
W.P.(C) No.25644/2023, this Court passed Ext.P10 judgment
2024:KER:83773
wherein this Court directed the Director Board of the
Plantation Corporation of Kerala Limited to take up the appeal
filed by the petitioner and dispose of the same.
26. The 5th respondent was not a party to
Ext.P10 judgment. However, the 5th respondent preferred
W.A. No.1723/2023 wherein the Division Bench refused to
give any substantial relief to the 5th respondent. The Division
Bench also held that the appeal preferred by the petitioner
from the order passed by the Internal Complaints Committee
shall be considered with notice to the 5th respondent as well.
Ext.P11 judgment has become final and conclusive.
Therefore, it has to be presumed that the 5 th respondent has
conceded before this Court the jurisdiction of the Board of
Directors to consider the appeal arising from the report of the
Internal Complaints Committee.
27. In such circumstances, it was inappropriate
on the part of the 5th respondent to prefer an appeal before a
different appellate body. It is to be noted that the Division
2024:KER:83773
Bench delivered judgment in W.A. No.1723/2023 upholding
the direction given by the learned Single Judge to the Board
of Directors to consider the appeal preferred by the petitioner.
However, the 5th respondent preferred appeal before the
Regional Joint Labour Commissioner subsequent to the
Division Bench judgment and on 15.12.2023. When this
Court had directed the Board of Directors of the Company to
consider the appeal, it was not proper for the 5th respondent
to approach the Regional Joint Labour Commissioner with a
separate appeal. Under the circumstances, the appeal
preferred by the 5th respondent before the Regional Joint
Labour Commissioner has to be declared as unsustainable.
Consequently, this writ petition is allowed. Ext.P17
order dated 15.02.2024 of the Regional Joint Labour
Commissioner is set aside.
Sd/-
N. NAGARESH, JUDGE
aks/08.11.2024
2024:KER:83773
APPENDIX OF WP(C) 8542/2024
PETITIONER'S EXHIBITS:
Exhibit P2 TRUE COPY OF THE REPRESENTATION GIVEN
BY THE RAMANI V.K BEFORE THE
MANAGER/FILED EXECUTIVE AND THE
PETITIONER'S REPORT
Exhibit P5 TRUE COPY OF THE REPLY DATED
12.07.2022 OF PETITIONER TO NOTICE
ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER
Exhibit P8 TRUE COPY OF THE PROCEEDINGS DATED
03.07.2023 OF THE PLANTATION
CORPORATION
Exhibit P10 TRUE COPY OF THE JUDGMENT DATED
04.08.2023 IN WP(C) NO.25644 OF 2023
BEFORE THIS HON'BLE COURT
Exhibit P11 TRUE COPY OF THE JUDGMENT DATED
04.12.2023 IN WA NO.1723 OF 2023
BEFORE THIS HON'BLE COURT
Exhibit P12 TRUE COPY OF THE REPORT DATED
28.12.2023 SUBMITTED BEFORE THE 2ND
RESPONDENT BY THE SUBCOMMITTEE
Exhibit P13 TRUE COPY OF THE PROCEEDINGS DATED
16.01.2024 OF THE 2ND RESPONDENT
Exhibit P16 TRUE COPY OF THE STATEMENT FILED BY
THE PLANTATION CORPORATION DATED
08.02.2024
RESPONDENTS' EXHIBITS:
EXHIBIT-R5(A) A TRUE COPY OF THE GOVERNMENT ORDER
NO.66/2016 LBR PUBLISHED IN KERALA
GAZETTE DATED 07.04.2016.
2024:KER:83773
EXHIBIT-R5(B) A TRUE COPY OF THE INTERIM ORDER DATED
05.10.2023 IN W.A.NO.1723/2023
EXHIBIT-R5(C) A TRUE COPY OF THE INTERIM ORDER
PASSED BY THE REGIONAL JOINT LABOUR
COMMISSIONER, ERNAKULAM DATED
25.01.2024.
Exhibit R2(a) COPY OF THE RELEVANT PAGES OF THE
BOARD RESOLUTION NO.486/1 DATED
07.02.24 WHEREBY THE RESOLUTION NO.
485/OA-15 WAS APPROVED WITH
AMENDMENTS.
