Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.12244 OF 2018
(ARISING OUT OF SLP (CIVIL) NO.7811 OF 2014)
| THE DEPOT MANAGER & ORS.<br>Versus | .. APPELLANT(S) |
|---|---|
| SRI S. KRISHNA | ..RESPONDENT(S) |
M.R.SHAH, J.
Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 24.07.2013 passed by the Division Bench of the
High Court of judicature of Andhra Pradesh at Hyderabad in Writ
Appeal No.1344 of 2013 the original respondents–corporation–
Signature Not Verified
Digitally signed by R
NATARAJAN
Date: 2019.01.25
16:48:27 IST
Reason:
employer has preferred the present appeal.
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3. The facts leading to the present appeal in nutshell are as under :
a. That the respondent was appointed as a contract driver
and was working with the appellant corporation.
b. That he was subjected to departmental enquiry.
c. That following the report of the Enquiry Officer, his
service came to be terminated.
d.
That the departmental appeal also came to be rejected.
e. Review petition before the Regional Manager also came to
be rejected on merits.
f. Thereafter the original writ petitioner raised the
industrial dispute and the same came to be dismissed by
the Presiding Officer, Labour Court I, Hyderabad vide
judgment and order in Industrial Dispute No.93 of 2010.
g. Thereafter the workmanoriginal writ petitioner
approached the High Court invoking jurisdiction of the High
Court under Article 226 of the Constitution of India by filing
Writ Petition No.5632 of 2012.
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h. That the learned Single Judge allowed the petition
holding that the matter was not resintegra and was covered
by the earlier judgment of the 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 a
fullfledged enquiry has been held, this distinction did not
find acceptance by the learned Single Judge and solely
considering the decision of the learned Single Judge in Writ
Petition No.2786 of 2012 and without even considering the
facts of the case, dispose of the writ petition by directing the
original respondents to reengage the petitioner in service
and extend the benefit of continuity of service to him from
the date of termination till the date of his reengagement
except for the period during which he was absent. This was,
however, without monetary benefit and was directed to
count only for regularization.
i. The above order of the learned Single Judge was affirmed
by the Division Bench in Writ Appeal.
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4. Mr. Gourab Banerji, learned Senior Counsel appearing on behalf
of the appellants has submitted that the Division Bench has
materially erred in affirming the order passed by the learned Single
Judge and without even considering the facts of the individual case
and that the Division Bench has not properly appreciated the fact
that learned Single Judge has amicably and without proper
application of the facts disposed of the writ petition solely relying
upon the order passed by the learned Single Judge dated
29.02.2012 in Writ Petition No.2786 of 2012, which was not
applicable at all. It is submitted in the present case as such the
original writ petitioner was dismissed from service after holding
departmental enquiry and after having held the charges and the
misconduct proved in a departmental enquiry. It is submitted that
the main judgment and order passed by the Division Bench
affirming the order passed by the learned Single Judge cannot be
sustained and required to be quashed and set aside.
5. Having heard the learned counsel appearing on behalf of the
appellants herein and having considered the main judgment and
order passed by the learned Division Bench as well as the order
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passed by the learned Single Judge, it appears that the learned
Single Judge without having regard to the facts of the individual
cases, mechanically issued the directions exclusively relying on the
earlier decision dated 29.02.2012 in Writ Petition No.2786 of 2012.
However, the learned Single Judge and the Division Bench both
have materially erred in not appreciating the facts that in the
present case the workman was dismissed from service after holding
the departmental enquiry and having all the charges of misconduct
proved, that was not the case in Writ Petition No.2786 of 2012
6. 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.
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7. Even otherwise such a direction cannot be issued by the learned
Single Judge without the termination being set aside. The ground of
continuity was not sustainable for the simple reason that unless
the order of termination is set aside. As a matter of first principle,
continuity cannot be granted. Continuity is granted when the order
of termination is set aside to ensure there is no hiatus in service.
8. 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 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.
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9. 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
learned Single Judge as well as the Division Bench unfortunately
lost sight of the facts of each individual case.
10. For the above reason, we allow the present appeal and
accordingly set aside the impugned judgment and order dated
24.07.2013 in Writ Appeal No.1344 of 2013 as well as the judgment
and order passed by learned Single Judge in Writ Petition No.5632
of 2012. No costs.
……………………………..............................J.
(DR. DHANANJAYA Y. CHANDRACHUD)
.……….…………………….............................J.
( M.R. SHAH )
New Delhi,
December 07, 2018.
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