Allowed

Jeevan Johny v. the Pharmaceutical Corporation (General Medicines) Kerala Ltd.

Kerala HC1 Sept 2021WP(C)/13689/2021

Case brief

AI extract

What is this about?

In a writ petition challenging the termination of a contractual employee, the court held that since termination was based on an allegation of misconduct involving police enquiry and alleged absconding, fairness required a show-cause notice. The termination order was set aside purely on technical grounds without adjudicating the misconduct allegations.

What did the court decide?

Ext.P4 termination order set aside; management directed to issue show cause notice before proceeding.

Jeevan Johny Vs the Pharmaceutical Corporation… — Service and Employment | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SUNIL THOMAS

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WEDNESDAY, THE 1^ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943

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WP(C) NO. 13689 OF 2021

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PETITIONER:

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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.

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BY ADV LATHEESH SEBASTIAN

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RESPONDENT/S:

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1 THE PHARMACEUTICAL CORPORATION (GENERAL MEDICINES) KERALA LTD (OUSHADI), KUTTANELLOOR P.O., THRISSUR - 680 014 REPRESENTED BY ITS MANAGING DIRECTOR.

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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.

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BY ADVS. E.K.MADHAVAN V.KRISHNA MENON P.VIJAYAMMA J.SURYA

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.13689/2021

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JUDGMENT

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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.

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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 5^th 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 4^th 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

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W.P.(C) No.13689/2021

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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.

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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.

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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.

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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

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W.P.(C) No.13689/2021

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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.

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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.

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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.

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Having considered the above, I am inclined to hold that Ext.P4 order

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W.P.(C) No.13689/2021

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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.

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Writ petition is allowed accordingly.

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Sd/-

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SUNIL THOMAS Judge

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dpk

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W.P.(C) No.13689/2021

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APPENDIX OF WP(C) 13689/2021

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PETITIONER EXHIBITS

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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.

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ANNEXURE-A:- COPY OF THE DUPLICATE COPY OF EXT.P3 DATED 26/2/2021 CONTAINING THE ENDORSEMENT MADE BY THE PETITIONER.

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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.

Jeevan Johny v. the Pharmaceutical Corporation (General Medicines) Kerala Ltd.

Case brief

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Jeevan Johny v. the Pharmaceutical Corporation (General Medicines) Kerala Ltd.

Case brief

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