Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.12242 OF 2018
(ARISING OUT OF SLP (CIVIL) NO.7807 OF 2014)
| APSRTC & ORS.<br>Versus | .. APPELLANT(S) |
|---|---|
| SRI K. SATHAIAH | ..RESPONDENT(S) |
J U D G M E N T
M.R.SHAH, J.
Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 11.06.2013 passed by the Division Bench of the
High Court of Judicature of Andhra Pradesh at Hyderabad in
Writ Appeal No.864 of 2013 by which the Division Bench
dismissed the same appeal and confirmed judgment passed by
Signature Not Verified
Digitally signed by R
NATARAJAN
Date: 2019.01.25
16:48:29 IST
Reason:
the learned Single Judge dated 18.07.2012 in Writ Petition
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No.17541 of 2012 directing the appellants herein–original
respondents to extend the benefit of continuity of service to the
workman from the date of termination till the date of re
engagement except for the period when he was absent and that
would be without monetary benefit and that it would be granted
only for the purpose of regularization at a later date, the original
respondents Corporationemployer have preferred the present
appeal.
3. The facts leading to the present appeal are as under :
a. That the respondent hereinoriginal writ petitioner was
appointed as a contract driver and working with the
appellant corporation.
b.
That a departmental enquiry was initiated against him
for remaining on unauthorized absence.
c. Following the report of the Enquiry Officer, his services
came to be terminated.
d. After the dismissal of the departmental appeal, and in
the course of the departmental review, the Divisional
Manager issued an order for the reengagement of the
respondent on contract on 06.07.2012.
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e. After the reengagement, the respondent invoked the
jurisdiction of the High Court under Article 226 of the
Constitution of India and prayed for continuity of service
together consequential service benefit.
4. The learned Single Judge allowed the petition, holding that the
matter was not res integra and was covered by an earlier
judgment of a learned Single Judge dated 29.02.2012 in Writ
Petition No.2786 of 2012. Though on behalf of the Corporation
an effort was made to distinguish the earlier decision on the
ground that in the present case after fullfledged enquiry has
been held, this distinction did not find acceptance by the learned
Single Judge. On the contrary, it was held that in the previous
case, the learned Judge had found that the enquiry was not in
keeping with the principles of natural justice. Moreover, in the
view of the Single Judge, once the Corporation had granted a
largesse in the form of a fresh employment, the workman should
not be deprived of the benefit of continuity of service for the
limited purpose of regularisation. Hence, in terms of the
direction in the earlier decision, the petition was disposed of by
directing the Corporation to extend the benefit of continuity of
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service to the workman from the date of termination until the
date of his reengagement except for the period when he was
absent. This was, however, without any monetary benefit and
was directed to count only for regularisation.
5. It is the above order of the learned Single Judge which was
affirmed by the Division Bench in a Writ Appeal.
6. Mr. Gourab Banerji, learned senior counsel appearing on
behalf of the appellants submits that there was a manifest error
on the part of both the learned Single Judge and the Division
Bench. In the present case, a disciplinary enquiry was held
against the workman after which an initial decision was taken to
terminate him from service. In a departmental review, he was
granted fresh appointment. Neither the termination nor the order
granting him fresh appointment as a contract driver were
challenged. As a matter of fact, it has also been submitted that
in certain other cases, the workmen had taken recourse to
proceedings before the Industrial Court but in the present case
that was not done. Be that as it may, the learned Single Judge
relied on the earlier decision and issued directions, to govern the
entire batch of cases. This direction was confirmed by the
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Division Bench without having regard to the facts of individual
cases.
7. Since the order of the learned Single Judge in the present
case, was exclusively based on the earlier decision dated
29.02.2012, a copy of that judgment has been placed on the
record. The judgment of the Single Judge indicates that the
earlier case also dealt with persons who were working as contract
employees who were appointed after a regular selection. In some
cases, termination orders were passed without an enquiry on
allegations of misconduct while in other cases, an enquiry was
conducted. The learned Single Judge, issued the following
directions in terms as agreed in that case:
“(1) In cases where the appellate/revisional
authority has directed reengagement of the
contract employees as fresh employees, such
employees shall be entitled to benefit of continuity
of service from the date of termination till the date
of reengagement, except for the period during
which they were absent, and the said continuity of
service granted to the employees shall be without
any monetary benefit and shall be counted only
for the purpose of regularization at a future date.
(2) The continuity of service so ordered in para (1)
shall not, however, be counted for the purpose of
seniority and shall not be allowed to affect the
seniority of regularly working employees or for
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other benefits, but shall be counted only for the
purpose of considering their cases for
regularization.
(3) There are also cases where the orders of
termination are challenged, either before the
appellate/revisional authorities or before this
Court, after six or seven years of date of
termination. In all such cases the benefit of
continuity of service without any monetary benefit
and reengagement so ordered in para (1) shall be
available to only to such of those employees who
have approached the appellate/revisional
authorities or this Court within three years from
the date of termination.
(4) In cases where appeals/revisions or writ
petitions are filed after three years of the orders of
termination, it is directed that the such
petitioner/s shall be considered for reengagement
as fresh contract employee/s, subject to medical
fitness and other formalities, but he/they shall not
be entitled to continuity of past service as under
para(1) above.
(5) In cases where contract employees have
preferred appeals/revisions, but no orders have
been passed therein, the appellate/revisional
authorities shall entertain and dispose of those
appeals/revisions in the light of the directions
referred to above, preferably on or before 31st
March, 2012.
(6) In cases where no enquiry was conducted, the
respondent Corporation shall be free to conduct
enquiry as per law into the allegations of
unauthorised absence of its employees from duty
or other allegations of misconduct.”
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8. In the present case, the workman did not choose to assail
either the termination of his services following the enquiry or the
fresh appointment. All that was sought was that he should have
the benefit of continuity of service from the date of the earlier
termination until reengagement.
9. Such a direction could not have been issued by the learned
Single Judge without the termination being put into question.
The grant of continuity was not sustainable for the simple reason
that unless the order of termination and of the fresh appointment
were challenged and adjudicated upon, seniority would
necessarily have to count with effect from the date of the fresh
appointment. As a matter of first principle, continuity can be
granted when an order of termination is set aside, to ensure that
there is no hiatus in service.
10. There is another reason why the judgment of the High Court
cannot be sustained. It is common ground that the appellant
has recruited personnel like the present respondent on contract
after a regular process of selection. Eventually, the contract
employees are to be regularised. Granting continuity of service
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to a person such as the respondent, who was found to have
committed misconduct, would place him on the same footing as
other contractual employees who have a record without blemish.
Hence, once a fresh appointment was given to the respondent
and neither the termination nor the fresh engagement was
placed in issue, the grant of continuity of service by the High
Court was manifestly misconceived.
11. We may also note that the earlier order of the learned Single
Judge dated 29.02.2012 was in a batch of cases, where
termination orders were issued without holding an enquiry in
certain cases and after holding an enquiry in others, though in
violation of the principles of natural justice. It was in that view of
the matter that the direction contained in Clause 6 of the
operative order provided that in cases where no enquiry was
conducted, the Corporation would be at liberty to conduct an
enquiry in accordance with law, on the allegations of misconduct.
12. We find a considerable degree of merit in the submission of
learned senior counsel appearing on behalf of the Corporation
that in deciding the entire batch of cases by a common order, the
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learned Single Judge as well as the Division Bench unfortunately
lost sight of the facts of each individual case.
13. In view of the facts and circumstances of the case, we allow
this appeal and accordingly set aside the impugned judgment
and order dated 11.06.2013 of the Division Bench as well as the
judgment and order dated 18.07.2012 passed by the learned
Single Judge.
14. The seniority of the respondent workman shall be counted
with effect from the date of his fresh appointment in the service of
the Corporation.
15. The appeal is accordingly allowed to the aforesaid extent. No
costs.
..…………………………..............................J.
(DR. DHANANJAYA Y. CHANDRACHUD)
…………….……………….............................J.
( M.R. SHAH )
New Delhi,
December 07, 2018.
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