IN THE HIGH COURT OF ANDHRA PRADESH :: SEVENTH DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT the honourable SRI JUSTICE NINALA JAYASURYA AN D THE HONOURABLE SRI JUSTICE TARLADA WRIT APPEAL NO: 1269 OF 709^ Writ Appeal under clause 15 of the Letters dated 03.04.2023 in W.P.No.15696 of 2009 Between: n?Annt Reg.Office Sandoz Dr.Annie Besant Road, Worli, Mumbai 400 Counsel Sanjeev Shrivastav. :: AMARAVATI RAJASEKHAR RAO Patent against the Order on the file of the High Court. Estate, 018, Rep. by its General Country ...APPELLANT/WRIT PETITIONER AND 1. The Chairman Cum Presiding Officer Court, Visakhapatnam. Nani;' Representative, Pradesh. ’ '^^Sar, Kakinada-3, East Godavari District, Andhra Industrial Tribunal cum Labour ...RESPONDENTS/RESPONDENTS in WP lA NO: 2 OF 709? Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay the operation of the order dated 03 04 2023 in W.P.No.15696 of 2009 Pradesh, at Amaravati, pending disposal of the passed by the Hon’ble High Court of Andhra main Writ Appeal. Counsel for the Appellant: SRI P. ROY REDDY Counsel for the Respondent No.1 : GP FOR SERVICES III Counsel for the Respondent No.2 : SRI M.B. RAjSr The Court made the following: JUDGMENT THE HON’BLE SRI JUSTICE NINALA JAYASURYA AND THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO WRIT APPEAL No. 1269 of 2023 JUDGMENT: [Per Hon’ble Sri Justice Tarlada Rajasekhar Rao) Writ petitioner is Novartis India Limited having Registered Office at Sandro House, Shiv Sagar Estate Road, Worli, Mumbai-400 018, Dr. Annie Besant a company registered under Companies Act, for brevity and understanding herein after called as “Company ”. 2. The 2'^'^ respondent by name Madhavabhaktula M.B. Raj Kumar (for facility purpose called Rajkumar as “employee”) joined as Medical Representative in Hindustan CIBA-GEIGY Limited. Latter CIBA and SANDOZ Novartis India Limited. The companies merged and formed as employee joined as Medical Representative on 29.12.1993 and his services were reguiarized w.e.f. 09.05.1994 and he was placed at Kakinada in Andhra Pradesh. 3. Due to the marketing strategies arising out of the need of business, the employee being transferred from Kakinada Pradesh to Davanagere, Karnataka State , Andhra w.e.f., 15.10.2001 vide 2 dated 09.10.2001 and as per the transfer policy the proceedings employee is entitled to all the benefits. transfer order dated 09.10.2001 The employee assailed the and filed suit O.S. No. 1511 of 2001 on the file of 4. of the company, 1 Addl. Junior Civil Judge transfer order and also filed an No. 1561 of 2001 under CPC to grant temporary injunction affecting the transfer order on to the employee and language Court at Kakinada for cancellation of the Interlocutory Application i.e. l.A. Order 39 Rule 1 and 2 r/w Section 151 of restraining the company from the grounds that it cause prejudice problem and communication the company and further problem and it is no way benefit to stated that with the malafide intention in an unjustifiable manner the trial Court has granted ad- affected. Initially interim injunction restraining the transfer of the 2- respondent. transfer was dismissed on merits vide the ground that the Court has no Suit for the relief claimed by the the l.A. No. 1561 of 2001 was order dated 11.04.2002 on Latter, jurisdiction to entertain the employee and he has to approach the Industrial Tribunal the said order in l.A. No.1561 of 2001, the Civil Miscellaneous Appeal and the the order dated 11.04.2002 of Against employee has preferred the dismissed confirming 5. same was 3 However, the O.S. the learned Junior Civil Judge Kakinada. No.1511 of 2001 on the file of Junior Civil Judge instituted by the employee was rendered infructuous. Indisputably, the employee has availed himself of all 6. possible leaves to which he is entitled. Despite the transfer order dated 9.10.2001, the employee has not reported for duty at Davangere. As a result, the company has terminated the employee's service, providing one month's salary of Rs. 12,388/- (Rupees twelve thousand three hundred and eighty eight), in accordance with rules. 7. Assailing the determination of the service order dated 08.05.2002, employee filed I.D. No.9 of 2005 before the Industrial Tribunal-cum-Labour Court at Visakhapatnam, invoking the provision under Section 2A of the Industrial Tribunal Act, 1947. The Tribunal has allowed the dispute noting that no inquiry had been conducted prior to the determination of the employee's service, in its order dated 05.01.2009, and issued the following directives: 1. The termination of the service of the employee (petitioner in I.D.) is illegal and invalid. 4 2. The employee (petitioner in I.D.) shall report to duty within 30 days after publication of the award at its Kakinada Office and after that it is open to the respondent management to post him at any territory of its choice including Davangere. Within reasonable time, the management shall initiate disciplinary proceedings against the employee (petitioner in I.D.) and after conducting domestic enquiry, it has to decide t whether the 2nd respondent (petitioner in i.D.)is entitled to continuity of service or otherwise. That on such reinstatement, the employee (petitioner in I.D.) is not entitled for back wages. 3. 4. 7. The order in I.D. No. 9 of 2005 dated 05.01.2009 of the Industrial Tribunal was challenged in W.P. No. 15696 of 2009 before the erstwhile High Court of ‘Andhra Pradesh, inter alia on the following grounds: e) The similarly the learned Industrial Tribunal gravely erred in ignoring or overlooking the settled legal position, established by the Hon’ble Supreme Court in the above judgment in Viveka Nand Seth and also in a catena of judgments including K.L. Tripathi v. State Bank of India (AIR 1984 SC 273), Aligarh Muslim University Vs. Mansoor Ali Khan (2000 7 SCC 529) and Ashok Kumar Sonakar Vs. Union of India (2007) 4 SCC 54, that natural justice is not to be observed in any rigid or pre-ordained manner, nor in as 5 accordance with any strait-jacket formula and that it is only where real and actual prejudice has been caused on account of the alleged breach of natural justice, that the courts should interfere. In other words, if an employee is unable to show the court what prejudice was caused to him by the failure to hold an enquiry, or.in other words if the evidence on record does not furnish any acceptable justification for the acts of misconduct which have been shown to have been committed, then such employee cannot claim the protection of “denial of natural justice” merely because no enquiry was held. f) That the learned Industrial Tribunal failed to appreciate the equally settled proposition that in industrial law, unlike in cases pertaining to government service, failure to hold an enquiry before dismissing a workman for misconduct does not vitiate or invalidate the termination, vide Workmen of the Motipur Sugar Factory Vs. The Motipur Sugar Factory, (AIR 1965, SC 1803), Workmen Vs‘. Firestone Tyre and Rubber Company of India, (AIR 1973 SC 1227), 1973 1 see 833 and numerous judgments which have followed, wherein the Hon’ble Supreme Court has consistently held that so long as an employer justifies the dismissal before the Court by adducing materials which sufficiently prove the acts of misconduct upon which termination/dismissal was founded, the termination cannot be set aside or otherwise interfered with. 6 -r Industrial Tribunal erred in ignoring or of the Hon’ble Supreme Court in g) That the learned overlooking the judgment Lakshman Vs. Pan American World Airways in which the court highlighted the Kamal Kishore (AIR 1987 SC 229), ip between industrial law and service law, and held difference that in industrial matters, failure to hold an inquiry would not termination/dismissal. invalidate the learned judge failed to notice the judgments in of Southern India Vs. K. G. manner in any Similarly, the United Planters Association Sangameswaran (1997 4 see 741) and in United Bank of India Vs. T.N. Banks Deposit Collectors Union (2007 12 above legal position has been see 585), wherein the reiterated by the Supreme Court. of the learned Industrial Tribunal on three judgments referred to in paragraph 18 is totally misplaced, submitted that the judgment of the Supreme Court ,n Dandha (2006 (108) FLR 78) and in Executive Engineer, B&C Daryawad 2006 (109) FLR h) That the reliance It is State of Punjab Vs. Desh that of the Bombay High Court in Department Vs. Riyaj Naseer clearly inapplicable, as they pertain to non-punitive 25-F of the Industrial 547 are terminations which violated Section of “retrenchment” in Since, the definition Act expressly excludes termination Section Disputes Act. Section 2(oo) of that measure of punishment of the respondent. which is effected as a 25-F is not applicable in the case Likewise, the case of Novartis India Vs. State of West Bengal (2008 SCC 475), which pertained to termination of 7 some other medical representatives by the petitioner company, is also inapplicable. A perusal of the said judgment will show that in that case the Calcutta High Court (both Single Judge and Division bench) had held that the employer had neither asked for an opportunity to justify the charges before the Court, nor had the employer in fact justified its actions, and therefore the Court held on merits that the termination was vitiated. 8. Learned counsel for the company has stated that the employee received a benefit under Section 17 B of the Industrial Disputes Act 1947. 9. A learned single judge of this Court vide order dated 03.04.2023 has dismissed the writ petition with the following observation as extracted hereunder: “Hence, the contra contention of the counsel for the petitioner that no enquiry needs 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. This Court found that the impugned Award passed by the Chairman-cum-Presiding Officer, Industrial Tribunal-cum- 8 H 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”. The company filed the intra Court appeal assailing the 10. order in W.P. No. 15696 of 2009 dated 03.04.2023 inter alia on the following grounds: h) The Hon’ble Single Judge failed to see that the Labour Court set aside the termination letter dated 08.05.2002 on the sole ground that no reasonable opportunity has been given to the employee and therefore the order or termination is illegal and invalid. The Hon’ble Single Judge ought to have seen that it had jurisdiction to consider the evidence placed before it in justification of the action taken even if no enquiry has been held by the employer. The Hon’ble Single Judge ignored the legal position settled by the Hon’ble Supreme Court in State of Uttarakhand and Others v. Sureshwati (2021) 3 SCC 108, Workmen V. Motipur Sugar Factory (P) Ltd AIR 1965 SC 1803, Delhi Cloth & General Mills Co. Vs. Ludh Budh Singh (1972) 1 SCC 595, Workmen Firestone Tyre & Rubber Co. of India (P)Ltd (1973) 1 SCC 813. 9 j) The Hon’ble Single Judge due to misapprehension of the legal position, came to a totally erroneous conclusion that the impugned award dated 05.01.20Q9 of the Respondent No.1 (Company) does not suffer from any error of fact and law and therefore does not warrant any interference by this Hon’ble Court by exercising Writ of Certiorari jurisdiction under Article 226 of the Constitution of India. k) The Hon’ble Single Judge out to have seen that there was no malafides in the impugned transfer order and therefore there was reason in law to set aside the order of termination by the Appellant. At the outset, it is emphatically argued that under Section 11) 2A of the Industrial Disputes Act, 1947 if no domestic enquiry was held by the management and it does not rely upon any domestic enquiry that may have been held by it, the company can straightaway adduce evidence before the Industrial Tribunal justifying its action and this aspect has not been considered by the learned judge hence prayed to allow the writ petition by setting aside the order in writ petition. This Court relies on the judgment of the Apex Court in Karnataka State Road Transport Corpn vs Smt. Lakshmidevamma & Another reported in 2001 (5) SCC 433 relying on the on the Judgment of Delhi Cloth & General Mills Co. vs. Ludh Budh Singh [(1973) 3 10 see 189] and after referring to most of the earlier cases on the point laid down the following principle ; When a domestic inquiry has been held by the management and the management relies on it. the management may request the Tribunal to try the validity of the domestic inquiry as a preliminary issue and also ask for opportunity to adduce evidence before the Tribunal if the finding on the preliminary issue is against the management. In such a case if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to adduce additional evidence and also give a similar opportunity to the employee to lead evidence contra. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of before the proceedings closed, the employer can make no grievance that the Tribunal did not provide for such an opportunity. 12) In State Bank Of India vs R. K. Jain & Ors reported in was an were [(1972) 4 SCO 304] was an instance where an enquiry conducted by the management, but it was held to be defective by the Tribunal and in consequence the order terminating the services of the workmen was set aside. No permission to adduce evidence before the Tribunal justifying its action was asked for by the management. The grievance of the management before the 11 this (apex) Court, that the Tribunal should have given such an opportunity suo moto was not accepted, in the circumstances of that case. 13) Per contra, the party in-person has argued that in-order to determine the petitioner from service with malafide intention, the Company has transferred him and supported the reasons assigned in the I.D. No. 9 of 2005 on the file Industrial Tribunal- cum-Labour Court, Visakhapatnam and the order of the learned single Judge in W.P. No. 15696 of 2009. Hence, prayed to dismiss the Writ Appeal. 14) For the contention raised by the counsel for the appellant the court thought it is appropriate to reproduce Section 2A of I.D. Act 1947 for the facility purpose. 2A. [ Dismissal, etc., of an individual workman to be deemed to be an industrial dispute. [ Inserted by Act 35 of 1965, Section 3 (w.e.f. 1.12.1965).] (1) Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, of arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no 12 other workman nor any union of workmen is a party to the dispute. ] (2) [ Notwithstanding anything contained in section 10, any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has application to the Conciliation Officer of the Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have or Tribunal for made the appropriate powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriateGovernment. (3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the three years from the date retrenchment or otherwise termination specified in sub-section (1).] [New sub-sections Act 24 of 2010 (w.e.f. 18.8.2010)]. 15) On careful examination of the order in I.D. No. 9 of 2005 of the Industrial Tribunal-cum-Labour at Visakhapatnam consider the arguments presented by the the Company has remained expiry of of discharge, dismissal of service as added by even if we company to be valid unrepresented and the Tribunal has 13 noted at para no-5 in its award, that the workman provided testimony as VWV-I and marked Exs W1 to W 14 and the management only presented Exhibits Ml to M5 during the cross- examination of WW-1 by consent, without offering any oral evidence. 16) The Supreme Court in Shankar Chaudhary v. Britania Biscuits Co. Ltd.^ in paragraph 30, held that “the Labour Court or the Industrial Tribunal have all the trappings of a Court. In paragraph 31, it held that any party appearing before a Labour Court or Industrial Tribunal 'Must' make claim or demur the claim of the other side and when there is a burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead evidence. The obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. 17) While reviewing the award of the Industrial Court, the Writ Court cannot go into the question of sufficiency or adequacy of the evidence, on the basis of which the findings are recorded. It is i settled that discharge simpliciter does not warrant enquiry, but when the discharge is stigmatic, then order of discharge cannot be passed unless adequate opportunity of being heard to the 1979 (3) SCO 371 14 concerned employee is given. The Tribunal held that delinquent employee of hearing before taking punitive view of the finding of the Tribunal that simpliciter stigmatizes his whole afford an opportunity of hearing before 18) In the Sureshwati' reported i the was required to be afforded an opportunity action against him. However discharging an employee career, he was required to be terminating his services. , in case of 'State of Uttarakhand & others Vs. in (2021) 3 see 108', the Hon'ble Supreme Court had referred ,to various of its decisions including decisions in'Workmen Vs. Motipur Sugar the Factory (P) Ltd' Delhi eioth & General Mills eo. reported in 'AIR 1965 Se 1803 Vs. Ludh Budh Singh reported in '(1972) 1 see and 'Workmen Vs. Firestone Tyre & Rubber 595' Co. of India (P) Ltd.,' and held inter alia that before reported in '(1973) 1 see 813 imposing a punishment, proper inquiry in accordance with the Orders, if applicable, and principles inquiry should not be an empty formality. 19) The only thing is to be seen whether there i an employer is expected to conduct a provisions of the Standing of natural justice and that the IS some legal support the finding that the disengagement evidence to of petitioner was in any manner stigmatic. In this case, it cannot be 15 said that the finding of misconduct recorded against the employee is not supported by any legal evidence. The findings of the industrial Tribunal which is confirmed in Writ Petition do not suffer from the vice of perversity. 20) Hence, the Writ Appeal is dismissed. However no costs. As a sequel, interlocutory applications, if any pending i this appeal shall stand dismissed. in Sd/- K. TATA RAO DEPUTY REGISTRAR //TRUE COPY// SECrnON OFFICER To, 1. One CC to Sri P. Roy Reddy, Advocate [OPUC] Two CCs to GP for Services III, High Court of Andhra Pradesh. [OUT] One CC to Sri M.B. Raj Kumar, Advocate (OPUC) Three C.D. Copies. 2. 3. 4. Cnr . S' HIGH COURT DATED;07/05/2025 JUDGMENT WA.No.1269 of 2023 I 2 9 MAY 2025 1 DISMISSING THE WRIT APPEAL WITHOUT COSTS