Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.12247 OF 2018
(ARISING OUT OF SLP (CIVIL) NO.7809 OF 2014)
| APSRTC & ORS.<br>Versus | .. APPELLANT(S) |
|---|---|
| SRI A. SANJEEV REDDY | ..RESPONDENT(S) |
J U D G M E N T
M.R.SHAH, J.
Leave granted.
2. Feeling aggrieved and dissatisfied with the judgment and order
Signature Not Verified
dated 25.04.2013 passed by the Division Bench of the High Court of
Digitally signed by R
NATARAJAN
Date: 2019.01.25
16:48:26 IST
Reason:
Judicature of Andhra Pradesh at Hyderabad in Writ Appeal No.169
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of 2013 by which Division Bench has affirmed the judgment and
order passed by the learned Single Judge passed in Writ Petition
No.27412 of 2012 by which the learned Single Judge solely relied
upon the directions issued by the learned Single Judge in the order
dated 29.02.2012 in Writ petition No.2786 of 2012 and directed the
appellantcorporation to extend the benefit of continuity of service
from the date of termination till the date of his reengagement
except for the period during which he was absent, however, without
any monetary benefit and shall be counted only for regularization,
the original respondentsemployercorporation has preferred the
present appeal.
3. The facts leading to the present appeal in nutshell are as under :
a. The respondent was appointed as a contract conductor and was
working in Kamareddy Depot, Nizamabad District of the appellant
corporation.
b. That a departmental enquiry was initiated against him by the
appellant herein.
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c. Following the report of the Enquiry Officer, his service came to be
terminated.
d. That the respondent herein preferred a departmental appeal
against the order of termination.
e. That the Departmental appeal came to be dismissed. However, in
the course of the departmental review the Regional Manager issued
an order for the reengagement of the respondent on contract on
21.02.2011.
f. After his 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 with consequential service
benefits.
g. 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 a fullfledged enquiry has been held, this distinction did not
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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 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.
h. The above order of the learned Single Judge was affirmed by the
Division Bench in a Writ Appeal.
4. 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
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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 Division Bench without having
regard to the facts of individual cases.
5. 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
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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 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
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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,
st
preferably on or before 31 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.”
6. 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.
7. 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/or the fresh appointment were
challenged and adjudicated upon, seniority would necessarily have
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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.
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.
9. 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
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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.
10. 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.
11. For the above reasons, we allow this appeal and accordingly, set
aside the impugned judgment and order dated 25.04.2013 in Writ
Appeal No.169 of 2013 passed by the Division Bench as well as the
judgment and order passed by the learned Single Judge in Writ
Petition No.27412 of 2012. The seniority of the respondent
workman shall be counted with effect from the date of his fresh
appointment in the service of the Corporation.
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12. The appeal is, accordingly, disposed of in the above terms. No
costs.
……………………………..............................J.
(DR. DHANANJAYA Y. CHANDRACHUD)
.……….…………………….............................J.
( M.R. SHAH )
New Delhi,
December 07, 2018.
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