Full Judgment Text
NON-REPORTABLE
2024 INSC 638
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2024
(ARISING OUT OF S.L.P (C) NO.10546 OF 2019)
U.P. STATE ROAD TRANSPORT
CORPORATION & ORS. …APPELLANT(S)
VERSUS
BRIJESH KUMAR & ANR. …RESPONDENT(S)
J U D G M E N T
PANKAJ MITHAL, J.
1. Leave granted.
2. Under challenge in this appeal by the Uttar Pradesh State
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Road Transport Corporation is the order dated
12.09.2018 passed by the Division Bench of the
Allahabad High Court in Letters Patent Appeal arising
from a writ petition filed by the respondent wherein the
Signature Not Verified
Digitally signed by
Nirmala Negi
Date: 2024.08.29
17:41:19 IST
Reason:
learned Single Judge vide judgment and order dated
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In short ‘UPSRTC’
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12.01.2018 allowed the writ petition of the respondent
after setting aside the order dated 30.01.2016
terminating the services of the respondent passed by the
Assistant Regional Manager, Mathura, UPSRTC.
3. The father of the respondent Bal Krishna was a regular
conductor working with the appellant (UPSRTC) who died
on 18.10.2003 while in service. At that time, the
respondent was a minor. His mother moved an
application for his compassionate appointment but in
vain. The respondent attained the age of majority i.e. 18
years on 10.07.2008. He acquired the educational
qualification of high school and intermediate. His mother,
therefore, again moved an application seeking
compassionate appointment for him under the Uttar
Pradesh Recruitment of Dependants of Government
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Servants Dying in Harness Rules, 1974 .
4. There was no response to the above applications filed by
the mother of the respondent. However, subsequently
vide letter dated 19.10.2012, the appellant (UPSRTC)
informed the respondent that in connection with his
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Hereinafter referred to as ‘Dying in Harness Rules’
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application for compassionate appointment, the
corporation has decided to appoint him on preferential
basis as a contract conductor. Accordingly, he was
requested to report to the office and to deposit a security
amount of Rs.10,000/-. It appears that in pursuance
thereof the respondent submitted the security deposit
and entered into an agreement with the appellant
(UPSRTC) on 12.12.2012 to function as a contract
conductor. The respondent, thus, joined as contract
conductor.
5. During his service as contract conductor, he was found
guilty of carrying three passengers without ticket on two
occasions and on one occasion was found carrying
500 kg of extra luggage without booking. His services
were thus terminated on 30.01.2016 on the ground of
misconduct.
6. The respondent challenged the order dated 30.01.2016
terminating his services alleging that he was appointed
on compassionate basis and, therefore, was a permanent
employee whose services could not have been determined
without holding a disciplinary inquiry.
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7. The writ petition challenging the termination order was
allowed by the learned Single Judge vide judgment and
order dated 12.01.2018 and the same was upheld by the
Division bench by the order impugned herein dated
12.09.2018. The High Court concurrently held that the
appointment of the respondent was on compassionate
basis and as such he was a permanent employee whose
services could not have been terminated on account of
any misconduct without holding a disciplinary inquiry.
8. In the above background, the appellant (UPSRTC) has
come up in the present appeal.
9. Heard Smt. Garima Prashad, learned senior counsel for
the appellant and Shri Sudhir Kumar Saxena, learned
senior counsel for the respondent.
10. The submission of Smt. Garima Prashad, learned senior
counsel for the appellant (UPSRTC), is that the
respondent was never appointed on compassionate basis
under the Dying in Harness Rules. His appointment was
on contractual basis, independent of the Dying in
Harness Rules. Since his appointment was on
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contractual basis, his services have rightly been
determined on the alleged misconduct.
11. Shri Sudhir Kumar Saxena, learned senior counsel for
the respondent, on the other hand defended the orders of
the High Court contending that the compassionate
appointments are always of permanent nature and the
services of such employees cannot be terminated without
holding a disciplinary inquiry. Therefore, the High Court
has not committed any error of law in setting aside the
termination order and holding that the services of the
respondent are of permanent nature.
12. There is no dispute to the legal proposition that any
appointment made on compassionate basis is in the
nature of a permanent appointment and is not liable to
be treated as temporary or contractual. However, the fact
remains whether in the instant case, the appointment of
the respondent is under the Dying in Harness Rules or is
independent of it on contractual basis.
13. Undisputedly, the father of the respondent died on
18.10.2003 while working as a regular conductor with
the appellant (UPSRTC). The mother of the respondent
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had applied for his compassionate appointment but no
such appointment was offered to him as he was a minor
at that time. Even upon his attaining the age of majority
on 10.07.2008, the respondent was never offered any
compassionate appointment.
14. The record reveals that instead of offering compassionate
appointment to the respondent under the Dying in
Harness Rules, the respondent was extended the benefit
th
of the policy decision dated 09.08.2012 taken in the 188
meeting of the Board of Directors of the appellant
(UPSRTC). The said policy envisages to offer preferential
treatment in the matter of appointment on contractual
basis to the dependents of the deceased employees. The
scheme nowhere provides for compassionate appointment
to the dependents. Accordingly, appellant (UPSRTC) vide
letter dated 19.10.2012 offered contractual appointment
to respondent as conductor pursuant to his application
for compassionate appointment. He was called upon in
the office of the appellant (UPSRTC) with the relevant
documents and to deposit a security amount of
Rs.10,000/-. The respondent duly accepted the said offer
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and in response thereof submitted the security deposit
and entered into a written agreement on 12.12.2012
accepting the contractual appointment as conductor.
15.
A plain reading of the policy decision as contained in
letter dated 31.08.2012, the letter of offer dated
19.10.2012 and the agreement dated 12.12.2012, it is
crystal clear that the respondent was appointed as a
contract conductor on preferential basis being the son of
the deceased employee. He was not appointed on
compassionate basis. There is no reference of any
compassionate appointment in any document.
16. The mere fact that the respondent was appointed on
contract basis pursuant to the application for
compassionate appointment would not make his
appointment to be one under Dying in Harness Rules.
17. There appears to be no document on record to prove that
the appointment of the respondent was on compassionate
basis so as to treat him as a permanent employee of the
appellant (UPSRTC). Despite repeated queries, no specific
material was shown from the side of the respondent to
establish that the respondent in fact was appointed on
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compassionate basis. The respondent had accepted the
offer of contractual employment with his open eyes and
had even signed the agreement to that effect which is not
disputed. Thus, his appointment was simply on contract
basis and cannot be treated as permanent.
18. In view of the aforesaid facts and circumstances, we are
of the opinion that the learned Single Judge and the
Division Bench manifestly erred in law in holding that the
respondent was appointed under Dying in Harness Rules.
The High Court, erroneously on complete misreading of
the material on record, held that the appointment of the
respondent to be on compassionate basis and that he is
liable to be treated as a permanent employee. The High
Court has erred factually in treating the appointment of
the respondent under the Dying in Harness Rules,
though, it is not so.
19. The services of the respondent have been determined
solely on the ground of misconduct as alleged but
without holding any regular inquiry or affording any
opportunity of hearing to him. The termination order has
been passed on the basis of some report which probably
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was not even supplied to the respondent. No show cause
notice appears to have been issued to the respondent.
Therefore, the order of termination of his services, even if
on contractual basis, has been passed on account of
alleged misconduct without following the Principles of
Natural Justice. The termination order is apparently
stigmatic in nature which could not have been passed
without following the Principles of Natural Justice.
20. In the light of the above facts and discussion, we are of
the opinion that the order dated 30.01.2016 terminating
the services of the respondent is bad in law and cannot
be sustained. It has rightly been set aside though on a
different ground that the respondent is a permanent
employee having been appointed on compassionate basis.
The appointment of the respondent, in fact, is a
contractual appointment entitling him to continue as
such in service and to claim regularization if so advised
in accordance with law.
21. The judgments and orders of the High Court dated
12.01.2018 and 12.09.2018 are set aside to the extent
they hold the appointment to be on compassionate basis
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under the Dying in Harness Rules and that of a
permanent nature but quashing of the termination order
is maintained.
22.
The appeal is partly allowed as above.
....................………………………….. J.
(PAMIDIGHANTAM SRI NARASIMHA)
.............……………………………….. J.
(PANKAJ MITHAL)
NEW DELHI;
AUGUST 28, 2024
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