Andhra Pradesh High Court – Amravati
N?Annt Reg.Office Sandoz Estate vs Mansoor on 7 May, 2025
IN THE HIGH COURT OF ANDHRA PRADESH :::: AMARAVATI
SEVENTH DAY OF MAY
TWO THOUSAND AND TWENTY FIVE
PRESENT
the honourable SRI JUSTICE
AN D
NINALA JAYASURYA
THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT APPEAL NO: 1269 OF 709^
Writ Appeal under clause 15 of the Letters Patent against the Order
dated 03.04.2023 in W.P.No.15696 of 2009 on the file of the High Court.
Between:
n?Annt Reg.Office Sandoz Estate,
Dr.Annie Besant Road, Worli, Mumbai 400 018, Rep. by its General Country
Counsel Sanjeev Shrivastav.
...APPELLANT/WRIT PETITIONER
AND
1. The Chairman Cum Presiding Officer Industrial Tribunal cum Labour
Court, Visakhapatnam.
Nani;' Representative,
Pradesh. ' '^^Sar, Kakinada-3, East Godavari District, Andhra
...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
passed by the Hon'ble High Court of Andhra
Pradesh, at Amaravati, pending disposal of the 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 Dr. Annie Besant
Road, Worli, Mumbai-400 018, a company registered under
Companies Act, for brevity and understanding herein after called
as “Company “.
2. The 2’^’^ respondent by name Madhavabhaktula Rajkumar
M.B. Raj Kumar (for facility purpose called as “employee”) joined
as Medical Representative in Hindustan CIBA-GEIGY Limited.
Latter CIBA and SANDOZ companies merged and formed as
Novartis India Limited. The 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 , Andhra
Pradesh to Davanagere, Karnataka State w.e.f., 15.10.2001 vide
2
proceedings dated 09.10.2001 and as per the transfer policy the
employee is entitled to all the benefits.
4. The employee assailed the transfer order dated 09.10.2001
of the company, and filed suit O.S. No. 1511 of 2001 on the file of
1 Addl. Junior Civil Judge Court at Kakinada for cancellation of the
transfer order and also filed an Interlocutory Application i.e. l.A.
No. 1561 of 2001 under Order 39 Rule 1 and 2 r/w Section 151 of
CPC to grant temporary injunction restraining the company from
affecting the transfer order on the grounds that it cause prejudice
to the employee and language 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
transfer was affected. Initially the trial Court has granted ad-
interim injunction restraining the transfer of the 2- respondent.
Latter, the l.A. No. 1561 of 2001 was dismissed on merits vide
order dated 11.04.2002 on the ground that the Court has no
Suit for the relief claimed by the
jurisdiction to entertain the
employee and he has to approach the Industrial Tribunal
5. Against the said order in l.A. No.1561 of 2001, the
Civil Miscellaneous Appeal and the
employee has preferred the
same was dismissed confirming the order dated 11.04.2002 of
3
the learned Junior Civil Judge Kakinada. However, the O.S.
No.1511 of 2001 on the file of Junior Civil Judge instituted by the
employee was rendered infructuous.
6. Indisputably, the employee has availed himself of all
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.
3. 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
twhether the 2nd respondent (petitioner in i.D.)is entitled to
continuity of service or otherwise.
4.
That on such reinstatement, the employee (petitioner in
I.D.) is not entitled for back wages.
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, asestablished 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
5accordance 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 beenshown 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 incases pertaining to government service, failure to hold an
enquiry before dismissing a workman for misconduct does
not vitiate or invalidate the termination, vide Workmen ofthe 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
g) That the learned Industrial Tribunal erred in ignoring or
overlooking the judgment of the Hon’ble Supreme Court in
Kamal Kishore Lakshman Vs. Pan American World Airways
(AIR 1987 SC 229), ip
in which the court highlighted the
law, and held
difference between industrial law and service
would not
that in industrial matters, failure to hold an inquiry
manner invalidate the termination/dismissal.
in any
Similarly, the learned judge failed to notice the judgments in
United Planters Association of Southern India Vs. K. G.
United Bank of
Sangameswaran (1997 4 see 741) and in
India Vs. T.N. Banks Deposit Collectors Union (2007
12
see 585), wherein the above legal position has been
reiterated by the Supreme Court.
h) That the reliance of the learned Industrial Tribunal on three
judgments referred to in paragraph 18 is totally misplaced,
It is submitted that the judgment of the Supreme Court ,n
State of Punjab Vs. Desh Dandha (2006 (108) FLR 78) and
that of the Bombay High Court inin Executive Engineer, B&C
Department Vs. Riyaj Naseer Daryawad 2006 (109) FLR
547 are clearly inapplicable, as they pertain to non-punitive
25-F of the Industrial
terminations which violated Section
Disputes Act. Since, the definition of “retrenchment” in
Section 2(oo) of that Act expressly excludes termination
Section
which is effected as a measure of punishment
of the respondent.
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 lawwhich 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”.
10. The company filed the intra Court appeal assailing the
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 onthe 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 oftermination by the Appellant.
11) At the outset, it is emphatically argued that under Section
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
10see 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
an 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
were 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
[(1972) 4 SCO 304] was an instance where an enquiry
was
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 or Tribunal for
adjudication of the dispute referred to therein after the
expiry of forty-five days from the date he has made the
application to the Conciliation Officer of the appropriate
Government for conciliation of the dispute, and in receipt of
such application the Labour Court or Tribunal shall have
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 appropriate Government.
(3) The application referred to in sub-section (2) shall be
made to the Labour Court or Tribunal before the expiry of
three years from the date of discharge, dismissal
retrenchment or otherwise termination of service as
specified in sub-section (1).] [New sub-sections added by
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 even if we
consider the arguments presented by the company to be valid
the Company has remained 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 the
delinquent employee was required to be afforded
an opportunity
of hearing before taking punitive action against him. However , in
view of the finding of the Tribunal that discharging an employee
simpliciter stigmatizes his whole career, he was required to be
afford an opportunity of hearing before terminating his services.
18) In the
case of ‘State of Uttarakhand & others Vs.
Sureshwati‘ reported i
in (2021) 3 see 108′, the Hon’ble Supreme
Court had referred ,to various of its decisions including the
decisions in’Workmen Vs. Motipur Sugar Factory (P) Ltd’
reported in ‘AIR 1965 Se 1803
Delhi eioth & General Mills eo.
Vs. Ludh Budh Singh reported in ‘(1972) 1 see 595’
and ‘Workmen Vs. Firestone Tyre & Rubber Co. of India (P) Ltd.,’
reported in ‘(1973) 1 see 813
and held inter alia that before
imposing a punishment, an employer is expected to conduct a
proper inquiry in accordance with the
provisions of the Standing
Orders, if applicable, and principles of natural justice and that the
inquiry should not be an empty formality.
19) The only thing is to be seen whether there ISi some legal
evidence to
support the finding that the disengagement 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 in
this appeal shall stand dismissed.
Sd/- K. TATA RAO
//TRUE COPY// DEPUTY REGISTRAR
To, SECrnON OFFICER
1.
One CC to Sri P. Roy Reddy, Advocate [OPUC]
2.
Two CCs to GP for Services III, High Court of Andhra Pradesh. [OUT]
3.
One CC to Sri M.B. Raj Kumar, Advocate (OPUC)
4. Three C.D. Copies.
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