IMPORTANT POINT
The approving authority cannot question the proportionality of punishment if no mala fides are evident, and a proper domestic inquiry has been conducted.

JUDGMENT :

C. Kumarappan, J.

[PRAYER: Writ Appeal filed under Clause 15 of Letters Patent praying to set aside the impugned order of the learned Judge dated 24.10.2019 in W.P.No.17499 of 2008.]

The instant Writ Appeal has been filed assailing the order of the learned Single Judge dated 24.10.2019 made in WP.No.17499 of 2008, by and in which, the learned Single Judge has set aside the order of the first respondent in withholding the approval under Section 33(2)(b) of “The Industrial Disputes Act, 1947” [hereinafter shall be referred to as “ID Act”].

2. The brief facts which give rise to the instant writ appeal is that, the petitioner-Balaji Oil Industries (P) Limited is engaged in the manufacture of refined edible oil and vanaspati. The industry has installed two boilers and there were about 34 workers in their industry at the relevant point of time. The cadre of the workers are classified as operators, firemen and helpers. According to the petitioner, the 2nd respondent was a fireman and was working in VTA-10 thermic heater boiler and his job was to ensure replenishment of firewood, heating the boilers to maintain adequate generation of steam for production activity. While replenishing, the 2nd respondent was also required to remove the ashes to maintain the required heat and to avoid the possibility of damages to the machinery. It is the further case of the petitioner that on 03.08.2007, when the 2nd respondent was in the second shift in the thermic heater plant, in spite of his Superior's instruction to remove the ashes, the 2nd respondent refused to heed his instructions and left the shift without removing the ashes. In this regard, a complaint was given against the 2nd respondent/workman. Consequently, the petitioner-Management had initiated disciplinary proceedings, as the conduct of the 2nd respondent come within the definition of misconduct. The disciplinary proceedings was conducted in accordance with Rule 16(a) of the Tamil Nadu Model Standing Orders Act, 1947.

3. The 2nd respondent participated in the process of domestic enquiry and has also cross examined the Management witnesses. On behalf of the 2nd respondent, a co-worker was also examined and documents were marked. The Enquiry Officer, after enquiry, had found that the charge proved against the 2nd respondent and ultimately imposed the punishment of dismissal from service. While so, since there was an industrial dispute pending, which was not connected to the disciplinary proceedings, the petitioner-Management has sought for an approval of their action under Section 33(2)(b) of the ID Act. It was the further case of the petitioner that all the pre-conditions enumerated under Section 33(2)(b) of ID Act have been fulfilled.

4. It appears that the approving authority has withheld the approval on the ground that removal of ashes is not the duty of the 2nd respondent-workman and that the punishment was disproportionate to the gravity of the charges. Aggrieved with the same, when the Management preferred the writ petition, the learned Single Judge, after dealing with the various aspects of this case and precedents relied by either parties, has ultimately set aside the order of the authority and granted the approval. Not being satisfied with the order of the learned Single Judge, the appellant/workman has preferred the instant Writ Appeal.

5(a). The learned counsel for the appellant/workman would vehemently contend that the learned Single Judge has not gone into the aspect of perversity in the domestic enquiry report as the Enquiry Officer did not consider the documents submitted by the workman to establish that he was only a boiler attender and that he has no responsibility to remove the ashes. Therefore, the learned counsel for the appellant/workman contended that the domestic Enquiry report is perverse and that such perversity is amenable to the jurisdiction of the approving authority.

5(b). It is also contended by the learned counsel for the appellant that the finding rend