HONOURABLE SRI JUSTICE M.

GANGA RAO

Writ Petition No.15696 of 2009

ORDER: a person who makes a formal application to a court for a writ, judicial action in a suit,
etc.
The petitioner is the Management and the 2nd

respondent is the Workman. The Management filed this writ

petition before this Court being aggrieved by the Award of the

Chairman cum Presiding Officer, Industrial Tribunal cum

Labour Court, Visakhapatnam, passed in I.D.No.9 of 2005

dated 05.01.2009, whereby the petitioner/Management is

directed to reinstate the Respondent/Workman into service

and directed the respondent/Workman to report duty within

30 days after publication of the Award at its Kakinada office

and after that it is open to the petitioner/Management to post

him at any territory of its choice including Davanagere and

within a reasonable time the petitioner/Management shall

initiate disciplinary proceedings against the

Respondent/Workman and after conducting domestic

enquiry, it has to decide whether the Respondent/Workman

is entitled for continuity of service or otherwise, as being

arbitrary, illegal contrary to the provisions of Industrial

Disputes Act.
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W.P.No.15696 of 2009

2. This Court, on 04.08.2009, while issuing rule nisi in the

main writ petition passed an interim order in WPMP.No.20614

of 2009 that there shall be interim suspension as prayed for

subject to compliance with Section 17B of the Industrial

Disputes Act, pending writ petition.

3. Brief facts of the case are that the 2nd respondent was

originally appointed in Hindustan Ciba Geigy Limited (CIBA)

at its Ongole Headquarters as Trainee on 10.11.1992 and on

successful completion of training he was employed as Medical

Representative from 09.11.1993 on probation for a period of

six months. Thereafter, his services were confirmed with

effect from 09.05.1994.

4. As per the Bombay High Court order dated 29.8.1997

approving the scheme of Amalgamation of Sandoz (India)

Limited (SIL) with Hindustan Ciba Geigy Limited (HCG), HCG

was renamed as Novartis India Limited on 21.10.1997. SIL

stands merged with Novartis India Limited on 27.10.1997. As

per the Court orders, the services were transferred to Novartis

India Limited with a continuation of existing terms and

conditions and without any break.

5. The 2nd respondent was transferred vide Letter dated

9.10.2001, transferring him from Kakinada to Davanagere

with effect from 15.10.2001. He was informed that after

closure of working hours on 14.10.2001, he would stand

relieved from Kakinada. By letter dated 23.10.2001, the 2nd

respondent requested the petitioner to retain him at Kakinada

to look after his aged parents. The 2nd respondent’s request

was declined and directed him to proceed to Davanagere and

report for duty with effect from 12.11.2001. Then, the 2nd

respondent applied for sick leave and he was referred to the

Civil Surgeon, Government Hospital for second opinion. The

Civil Surgeon Dr. Venkata Prasad examined the 2nd

respondent on 21.11.2001 and by a letter dated 23.11.2001

intimated to the petitioner that the 2nd respondent has a

healing abscess on the sole of the foot secondary to burns and

that he required 10 days for complete healing. The petitioner

granted 10 days sick leave vide its letter dated 26.11.2001

from 21.11.2001 to 30.11.2001 to the 2nd respondent. He

was directed to report for duty at Devaragere on 01.12.2001.

The 2nd respondent filed O.S.No.1511 of 2001 before the Ist

Additional Civil Judge, Kakinada and moved an injunction

application No.1561 of 2001 and the same was granted by the

Civil Judge on 18.2.2002. But on contest, the order passed in

I.A.No.1561 of 2001 was vacated on merits, by order dated

11.4.2002. Thereafter, the 2nd respondent did not report for

duty at Devanagere but sent a Telegram on 12.4.2002 asking

for privilege leave for unspecified period which was rejected by

the petitioner by way of Telegram and the 2nd respondent was

directed to report for duty to Sales Manager on 19.4.2002.

But, he did not do so. The petitioner by its final letter dated

25.4.2002 directed the 2nd respondent to report for duty at

Devanagere by 10.00 A.M on 04.05.2002 and if he failed to

report for duty, action will be taken. But the 2nd respondent

did not report for duty. The petitioner, by order dated

08.05.2002 terminated the services of the 2nd respondent. In

the mean time, C.M.A.No.22 of 2002 filed by the 2nd

respondent against the orders in I.A.No.1561 of 2001 was

dismissed on 13.11.2002.

6. Being aggrieved by the termination order dated

08.05.2002, the 2nd respondent moved application under

Section 2-A (2) of the Industrial Disputes Act before the

Industrial Tribunal cum Labour Court, which came to be

numbered as I.D.No.5 of 2005, mainly on the ground that the

termination order came to be passed without conducting any

enquiry, no charges are framed, no opportunity was given to

the 2nd respondent to put forth his case and against the

principles of natural justice. The Labour Court having

considered the evidence adduced on record passed Award on

05.01.2009 holding that no enquiry is conducted before

passing the termination order and even before the Tribunal no

evidence is placed in support of its termination by the

petitioner. No one was examined on behalf of the

petitioner/Management before the Labour Court, in spite of

opportunity given to the petitioner to prove its case before the

Labour Court. The Labour Court having considered all the

issues framed in the case, held that the 2nd respondent’s

service was put to an end without following the procedure.

The Labour Court following the decision in the case of State

of Punjab Vs. Desh Dandha1, wherein it is held that the

effect of non-compliance with Section 25-F of the Industrial

Disputes Act would be a direction for reinstatement only to

restore the Workman to the same status which they held

when their services were terminated. In the case of Novartis

India Vs. State of West Bengal2, it is held that an employee

refusing to join at new territory on transfer, it is a misconduct

1
(2006 (108) FLR 78)
2
(2008) SCC 475
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W.P.No.15696 of 2009

but the employer shall initiate disciplinary proceedings and

that a mere order of discharge is not a substitute for an order

of punishment. The Labour Court having followed the

Novartis case, held that there shall be a finding by the

authority that there is misconduct on the part of the employee

and the certified standing order, if any, empower the

management to impose a major punishment for such

misconduct. The punishment if once put to judicial review, it

should satisfy as to its proportionality to the misconduct. All

these tests could be applied only when there is employee and

a finding. If the management resolves to terminate the

services as a measure of punishment without following the

principles of natural justice, thereby avoid judicial scrutiny of

the administrative action, the only consequence is to order

reinstatement of the employees, which is a justifiable order

that can be passed in the opinion of the Labour Court. In

the case of Devinder Singh Vs. Municipal Council, Sanaur3,

the Apex Court held that termination of Workman who

worked for more than 240 days as required under Section 25-

B of Industrial Disputes Act, without holding enquiry as

required under the provisions of Section-F of Industrial

3
(2011) 6 SCC 584
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W.P.No.15696 of 2009

Disputes Act is illegal and Workman is entitled for

reinstatement.

7. Hence, the contra contention of the counsel for the

petitioner that no enquiry need to be conducted before his

termination as he himself absconded from duties, application

under Section 2-A2 of the Industrial Disputes Act is not

maintainable, holds no water as per the law laid down by the

Apex Court. The Labour Court after elaborately considering

the contentions of the parties passed well reasoned and

articulated Award. It does not suffer from any legal

infirmities.

8. This Court found that the impugned Award passed by

the Chairman cum Presiding Officer, Industrial Tribunal cum

Labour Court, Visakhapatnam, in I.D.No.9 of 2005 dated

05.01.2009 does not suffer from any error of fact and law

which warrants interference of this Court by exercising the

power of writ of certiorari jurisdiction under Article 226 of the

Constitution of India. In fact, notification publishing the

Award issued under Section 17 of the Industrial Disputes Act

is not challenged and mere challenge of Award in the writ

petition is not maintainable.

9. For the reasons stated above, the Writ Petition is devoid

of merits and is liable to be dismissed. Accordingly, the Writ

Petition is dismissed. No order as to costs.

As a sequel thereto, miscellaneous petitions, if any,

pending shall stand closed.

_____________________
M. GANGA RAO, J
Date: .04.2023

CSR
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W.P.No.15696 of 2009

HON’BLE SRI JUSTICE M. GANGA RAO

W.P.No.15696 OF 2009

DT: .04.2023

CSR