HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No: 3490 of 2008 Dated 8-11-2010 Between: K.V.Raj Sekhar Reddy. ..... PETITIONER. And: The Regional Manager, Express Publications (Madurai) Limited, Hyderabad and others. ....RESPONDENTS. HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No: 3490 of 2008 ORDER: Aggrieved by the NIL award dated 4-5-2007 passed by the Labour Court, Guntur in I.D.No.59 of 2002, the unsuccessful petitioner therein is before this Court. The petitioner was appointed as a Proof Reader in the year 1992 in Andhra Prabha Proof Reading Department under the control of Express Publications Limited, Vijayawada. As he absented himself from duty from 2-8-2001, the Andhra Prabha Limited, Vijayawada by proceedings dated 19-9-2001 informed him that he had lost the lien on his appointment in view of his unauthorized absence. Aggrieved by his removal from service in this fashion, the petitioner approached the Labour Court by way of the subject I.D. The finding of the Labour Court that it had no jurisdiction to try the issue is incorrect. The impugned proceedings dated 19-9- 2001 were admittedly served upon the petitioner at Vijayawada. Cause of action arises out of a bundle of facts. The situs of the employment would be only one of such facts and would not, by itself, be solely indicative or exhaustive as to the place of suing. As the petitioner received the impugned proceedings within the jurisdiction of the Labour Court, Guntur, part of the cause of action is deemed to have arisen there. In that view of the matter, the Labour Court ought not to have held that it had no territorial jurisdiction over the dispute. In so far as the merits are concerned, the Labour Court relied upon Standing Order 11 (e) applicable to the Indian Express Publications which states to the effect that a working Journalist who remained absent unauthorisedly for 8 days or more would lose his lien on appointment. On the basis of this standing order, the respondent-Management dispensed with the services of the petitioner under proceedings dated 19-9-2001. Sri M.Pitchaiah learned counsel for the petitioner, stated that this aspect is squarely covered, placing reliance on the judgments of the Supreme Court in D.K. YADAV vs. J.M.A. INDUSTRIES LTD, ([1]) and UPTRON INDIA LTD., vs. SHAMMI BHAN & ANOTHER ([2]). The Supreme Court in D.K. YADAV vs. J.M.A. INDUSTRIES LTD observed that the order of termination of the service of an employee/workman visits him with civil consequences jeoporadising not only his/her livelihood but also his career and the livelihood of dependents. Therefore, the Supreme Court opined that before taking any action putting an end to the tenure of an employee/workman, fair play requires that a reasonable opportunity to put forth his case be given. I n D.T.C. v. D.T.C. MAZDOOR CONGRESS ([3]), a Constitution Bench of the Supreme Court, per majority, held that termination of the service of a workman giving one month’s notice or pay in lieu thereof without enquiry offended Art.14 of the Constitution. In UPTRON INDIA LTD., vs. SHAMMI BHAN & ANOTHER, the Supreme Court was dealing with a similar Standing Order whereby the services of a workman who overstayed leave for more than seven days stood automatically terminated. The Supreme Court held that notwithstanding such a certified Standing Order, a permanent employee’s services could not be terminated abruptly and arbitrarily. Further, the Supreme Court read into the Standing Order the requirement of complying with the principles of natural justice. The observations of the Supreme Court in this regard are apposite: “This provision, therefore, confers a discretion upon the management to terminate or not to terminate the services of an employee who overstays the leave. It is obvious that this discretion cannot be exercised, or permitted to be exercised, capriciously. The discretion has to be based on an objective consideration of all the circumstances and material which may be available on record. What are the circumstances which compelled the employee to proceed on leave; why he overstayed the leave; was there any just and reasonable cause for overstaying the leave; whether he gave any further application for extension of leave; whether any medical certificate was sent if he had, in the meantime, fallen ill? These are questions which would naturally arise while deciding to terminate the services of the employee for overstaying the leave. Who would answer these questions and who would furnish the material to enable the management to decide whether to terminate or not to terminate the services are again questions which have an answer inherent in the provision itself, namely, that the employee against whom action on the basis of this provision is proposed to be taken must be given an opportunity of hearing. The principles of natural justice, which have to be read into the offending clause, must be complied with and the employee must be informed of the grounds for which action was proposed to be taken against him for overstaying the leave.” In the light of the aforesaid judgment, it is clear that the action of the respondent-Management in terminating the petitioner from service, on the ground that he lost the lien on his appointment without further ado, cannot be countenanced. No opportunity to the petitioner whatsoever, much less an enquiry, was resorted to by the respondent-Management prior to taking the said step. It is contended by the respondent-Management that the petitioner, during the pendency of the proceedings before the Labour Court, opted for a Family Pension Scheme, thereby indicating his lack of interest in continuing in service. It is relevant to note that this option was exercised in the year 2005 but was not brought to the notice of the Labour Court. The award under challenge was rendered only in the year 2007. In exercise of certiorari jurisdiction, this Court is not inclined to entertain a new plea at this stage. All the more so, when the mere option for a Pension Scheme would not have the effect of nullifying the illegality committed by the respondent- Management in unilaterally dispensing with the services of the petitioner. In that view of the matter, the termination of the petitioner from service by proceedings dated 19.9.2001 is held to be illegal. Relevant to note, the petitioner in his claim statement before the Labour Court specifically mentioned that he tried for alternative employment but in spite of his best efforts, he could not secure any job. Going by the parameters adopted by the Supreme Court in D.K. YADAV vs. J.M.A. INDUSTRIES LTD and considering the fact that the petitioner was unlawfully denied employment during this period not only to his detriment but also his dependents, he would be entitled to 50% back wages. The award of the Labour Court is accordingly set aside. The respondents 1 and 2 are directed to reinstate the petitioner in service as a Proof Reader with 50% back wages, continuity of service and attendant benefits. The writ petition is allowed. In the circumstances of the case, there shall be no order as to costs. ________________________________ Justice SANJAY KUMAR Dated 8-11-2010. Dvs HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No: 3490 of 2008 Dated 8-11-2010 [1] 1993 II LLJ 696 [2] 1998 I LLJ 1165 [3] AIR 1991 SC 101