Kerala High Court
Jeevan Johny vs The Pharmaceutical Corporation ... on 1 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
WP(C) NO. 13689 OF 2021
PETITIONER:
JEEVAN JOHNY,
AGED 27 YEARS
S/O.JOHNY, T.C.44/418-1, J.J.HOUSE, ST.XAVIERS NAGAR,
VALIYATHURA, VALLAKKADAVU P.O., THIRUVANANTHAPURAM
DISTRICT - 695 008.
BY ADV LATHEESH SEBASTIAN
RESPONDENT/S:
1 THE PHARMACEUTICAL CORPORATION (GENERAL MEDICINES)
KERALA LTD
(OUSHADI), KUTTANELLOOR P.O., THRISSUR - 680 014
REPRESENTED BY ITS MANAGING DIRECTOR.
2 THE GENERAL MANAGER
THE PHARMACEUTICAL CORPORATION (GENERAL MEDICINES)
KERALA LTD. (OUSHADI), KUTTANELLOOR P.O., THRISSUR -
680 014.
3 THE MANAGER(PRODUCTIONS)
E5 SEAT, THE PHARMACEUTICAL CORPORATION (GENERAL
MEDICINES) KERALA LTD. (OUSHADI), MUTTATHARA PRODUCTION
UNIT, MUTTATHARA P.O., THIRUVANANTHAPURAM - 695 009.
4 THE ASSISTANT PRODUCTION MANAGER (APM)
THE PHARMACEUTICAL CORPORATION (GENERAL MEDICINES)
KERALA LTD., (OUSHADI), MUTTATHARA PRODUCTION UNIT,
MUTTATHARA P.O., THIRUVANANTHAPURAM - 695 009.
BY ADVS.
E.K.MADHAVAN
V.KRISHNA MENON
P.VIJAYAMMA
J.SURYA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.13689/2021 2
JUDGMENT
The petitioner was engaged as an apprentice in the Muttathara
production unit of the first respondent. He was appointed by virtue of Ext.P3, copy
of which with endorsement of the petitioner accepting the term and condition of
engagement, is produced as Annexure A along with the statement of the second
respondent. He was offered employment on 29/2/2016 by Ext.P1. By
communication dated 16/4/2021, his contractual employment was terminated. The
above termination is under challenge in the present writ petition.
2. A detailed statement was filed by the second respondent stating that,
appointment of the petitioner was purely contractual and the management retained
the power to terminate him, at any point of time, without assigning any reason
whatsoever, by virtue of 5th clause in Annexure A dated 26/2/2021. In the
statement filed by the second respondent, it was stated that petitioner was
terminated pursuant to a report dated 15/4/2021, sent to the first respondent by the
4th respondent-APM, Muttathara. A copy of the report with notings thereon was
produced as Annexure B. It was reported in Annexure B that local police came to
the factory at Muttathara, in search of the petitioner as he had been arrayed as
accused, in a criminal case filed against him. It was reported by the 4 th respondent
that on seeing the police, the petitioner, who was working in the factory premises,
went absconding and police could not apprehend him. The managing director of
the first respondent, on receipt of the report from the 4th respondent noted on
Annexure B that, , on the petitioner being arrested, his engagement would have to
be brought to an end , as permitting the police to enter the factory premises
frequently in search of the petitioner would not be in the best interest of the
company.
3. Vehemently, supporting the termination order, learned standing counsel for
the respondents contended that clause 5 of Ext.P1 enabled the management to
terminate the engagement of the petitioner at any time, without assigning any
reason whatsoever. The Hon'ble Supreme Court in Shreelekha Vadhyarthi v.
State of U.P.(1991)1 SCC 212) had held that 'without assigning any reason' does
not mean that there should not be any reason for termination, but it only means
that the reason need not be assigned or communicated to the workman/employee.
4. However, a close reference to Ext.P4, along with Annexure B and the
statement filed by the second respondent, clearly show that the cause, which led
to the termination of the petitioner, was the police came to the production unit,
enquired about the petitioner and informed that he was involved in a criminal case.
According to the management, the petitioner thereafter absconded from the
company. There is a reference in Annexure B that the petitioner was not found in
the plant at that point of time, though he was on duty. It was further reported that,
neighbours had seen one person scaling down the walls of the factory, who
according to the management, was the petitioner.
5. The above facts clearly indicate that cause for termination was that, as
disclosed from the records, the petitioner was involved in a criminal case, that the
police team came to his place of employment in search of him and that petitioner
had absconded from the place of employment. These facts clearly indicate that
termination could not be a case of termination simplicitor, but based on an
allegation of misconduct. If that be so, fairness demanded that the management
should have issued show cause notice to the petitioner giving him an opportunity
to explain and thereafter should have taken appropriate action.
6. Learned counsel for the management vehemently contended that such a
notice was not required in the facts of this case, wherein the facts stood
undisputed. According to the learned counsel for the management, in the
statement filed by the second respondent, these facts were specifically disclosed.
However, those factual allegations were not disputed by filing a reply affidavit.
Hence, even issuance of show cause notice preceeding the action was not
contemplated, it was contended.
7. I am not attracted by the above contention for two specific reasons. Firstly,
merely because a reply affidavit, after termination was not filed cannot be an
excuse for not giving an opportunity of showing cause before action was taken.
Secondly, the specific contention of the management was that termination was
by invoking clause 5 of Annexure A. As mentioned above, management proceeded
on a premise that facts remained undisputed. However, only later it was revealed
from Ext.P4 that termination was on the basis of report of APM, Muttathara, as well
as the direction given by the managing director to terminate the petitioner.
However, it is pertinent to note that the Managing Director had only noted on
Annexure B that, if the petitioner is arrested, necessarily his engagement has been
brought to an end.
8. Having considered the above, I am inclined to hold that Ext.P4 order
cannot be sustained. Accordingly, Ext.P4 is set aside. It is made clear that this will
not stand in the way of the management issuing show cause notice to the petitioner
and thereafter proceeding in accordance with law. It is also made clear that setting
aside of Ext.P4 is purely on a technical ground without entering into any findings
regarding the allegations levelled against the petitioner and the competence of the
management to invoke the provisions for termination.
Writ petition is allowed accordingly. Sd/-
SUNIL THOMAS
Judge
dpk
APPENDIX OF WP(C) 13689/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER AND TERM OF
APPOINTMENT OF THE PETITIONER DATED
29/02/2016 ISSUED BY THE 1ST RESPONDENT WITH
ENGLISH TRANSLATION.
Exhibit P2 TRUE COPY OF THE CERTIFICATE ISSUED BY THE
GENERAL MANAGER OF THE 1ST RESPONDENT DATED
26/11/2019 WITH ENGLISH TRANSLATION.
Exhibit P3 TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY
THE 1ST RESPONDENT DATED 26/02/2021 WITH
ENGLISH TRANSLATION.
Exhibit P4 TRUE COPY OF THE NOTE DATED 16/4/2021 ISSUED
BY THE 2ND RESPONDENT TO THE PETITIONER WITH
ENGLISH TRANSLATION.
ANNEXURE-A:- COPY OF THE DUPLICATE COPY OF EXT.P3 DATED 26/2/2021
CONTAINING THE ENDORSEMENT MADE BY THE PETITIONER.
ANNEXURE- B: COPY OF THE REPORT OF THE FOURTH RESPONDENT DATED
15/4/2021 CONTAINING THE ENDORSEMENT OF THE MANAGING DIRECTOR OF THE
1ST RESPONDENT.
