APSRTC & ORS. versus SRI K. SATHAIAH on 7 December 2018

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 11.06.2013 passed by the Division Bench of the HighFCourt of Judicature of Andhra Pradesh at Hyderabad in Writ AppealNo.864 of 2013 by which the Division Bench dismissed the same appealand confirmed judgment passed by the learned Single Judge dated18.07.2012 in Writ Petition No.17541 of 2012 directing the appellantsherein–original respondents to extend the benefit of continuity of serviceGto the workman from the date of termination till the date of re-engagementexcept for the period when he was absent and that would be withoutmonetary benefit and that it would be granted only for the purpose ofregularization at a later date, the original respondents- Corporation-employer have preferred the present appeal.

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3. The facts leading to the present appeal are as under :

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3. The facts leading to the present appeal are as under :

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a.That the respondent herein-original writ petitioner wasappointed as a contract driver and working with the appellantcorporation.

b.That a departmental enquiry was initiated against him forremaining on unauthorized absence.

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c.Following the report of the Enquiry Officer, his services cameto be terminated.

d.After the dismissal of the departmental appeal, and in thecourse of the departmental review, the Divisional Managerissued an order for the re-engagement of the respondent onCcontract on 06.07.2012.

e.After the re-engagement, the respondent invoked thejurisdiction of the High Court under Article 226 of theConstitution of India and prayed for continuity of servicetogether consequential service benefit.

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4. The learned Single Judge allowed the petition, holding that thematter was not res integra and was covered by an earlier judgment ofa learned Single Judge dated 29.02.2012 in Writ Petition No.2786 of2012. Though on behalf of the Corporation an effort was made todistinguish the earlier decision on the ground that in the present caseafter full-fledged enquiry has been held, this distinction did not findacceptance by the learned Single Judge. On the contrary, it was heldthat in the previous case, the learned Judge had found that the enquirywas not in keeping with the principles of natural justice. Moreover, inthe view of the Single Judge, once the Corporation had granted a largessein the form of a fresh employment, the workman should not be deprivedof the benefit of continuity of service for the limited purpose ofregularisation. Hence, in terms of the direction in the earlier decision,the petition was disposed of by directing the Corporation to extend thebenefit of continuity of service to the workman from the date oftermination until the date of his re-engagement except for the periodwhen he was absent. This was, however, without any monetary benefitand was directed to count only for regularisation.

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5. It is the above order of the learned Single Judge which wasaffirmed by the Division Bench in a Writ Appeal.

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A6. Mr. Gourab Banerji, learned senior counsel appearing on behalfof the appellants submits that there was a manifest error on the part ofboth the learned Single Judge and the Division Bench. In the presentcase, a disciplinary enquiry was held against the workman after whichan initial decision was taken to terminate him from service. In adepartmental review, he was granted fresh appointment. Neither theBtermination nor the order granting him fresh appointment as a contractdriver were challenged. As a matter of fact, it has also been submittedthat in certain other cases, the workmen had taken recourse toproceedings before the Industrial Court but in the present case that wasnot done. Be that as it may, the learned Single Judge relied on the earlierCdecision and issued directions, to govern the entire batch of cases. Thisdirection was confirmed by the Division Bench without having regard tothe 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 copyDof that judgment has been placed on the record. The judgment of theSingle Judge indicates that the earlier case also dealt with persons whowere working as contract employees who were appointed after a regularselection. In some cases, termination orders were passed without anenquiry on allegations of misconduct while in other cases, an enquirywas conducted. The learned Single Judge, issued the following directionsEin terms as agreed in that case:

“(1) In cases where the appellate/revisional authority hasdirected re-engagement of the contract employees as freshemployees, such employees shall be entitled to benefit of continuityof service from the date of termination till the date ofFre-engagement, except for the period during which they wereabsent, and the said continuity of service granted to the employeesshall be without any monetary benefit and shall be counted onlyfor the purpose of regularization at a future date.

(2) The continuity of service so ordered in para (1) shall not,Ghowever, be counted for the purpose of seniority and shall not beallowed to affect the seniority of regularly working employees orfor other benefits, but shall be counted only for the purpose ofconsidering their cases for regularization.

(3) There are also cases where the orders of termination arechallenged, either before the appellate/revisional authorities or H

before this Court, after six or seven years of date of termination.In all such cases the benefit of continuity of service without anymonetary benefit and re-engagement so ordered in para (1) shallbe available to only to such of those employees who haveapproached the appellate/revisional authorities or this Court withinthree years from the date of termination.

(4) In cases where appeals/revisions or writ petitions are filedafter three years of the orders of termination, it is directed thatthe such petitioner/s shall be considered for re-engagement asfresh contract employee/s, subject to medical fitness and otherformalities, but he/they shall not be entitled to continuity of pastservice 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, preferablyon 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 theallegations of unauthorised absence of its employees from duty orother allegations of misconduct.”

8. In the present case, the workman did not choose to assail eitherthe termination of his services following the enquiry or the freshappointment. All that was sought was that he should have the benefit ofcontinuity of service from the date of the earlier termination untilre-engagement.

9. Such a direction could not have been issued by the learnedSingle Judge without the termination being put into question. The grantof continuity was not sustainable for the simple reason that unless theorder of termination and of the fresh appointment were challenged andadjudicated upon, seniority would necessarily have to count with effectfrom the date of the fresh appointment. As a matter of first principle,continuity can be granted when an order of termination is set aside, toensure that there is no hiatus in service.

10. There is another reason why the judgment of the High Courtcannot be sustained. It is common ground that the appellant has recruitedpersonnel like the present respondent on contract after a regular process A

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Aof selection. Eventually, the contract employees are to be regularised.Granting continuity of service to a person such as the respondent, whowas found to have committed misconduct, would place him on the samefooting as other contractual employees who have a record withoutblemish. Hence, once a fresh appointment was given to the respondentand neither the termination nor the fresh engagement was placed inBissue, the grant of continuity of service by the High Court was manifestlymisconceived.

11. We may also note that the earlier order of the learned SingleJudge dated 29.02.2012 was in a batch of cases, where terminationorders were issued without holding an enquiry in certain cases and afterCholding an enquiry in others, though in violation of the principles of naturaljustice. It was in that view of the matter that the direction contained inClause 6 of the operative order provided that in cases where no enquirywas conducted, the Corporation would be at liberty to conduct an enquiryin accordance with law, on the allegations of misconduct.

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12. We find a considerable degree of merit in the submission oflearned senior counsel appearing on behalf of the Corporation that indeciding the entire batch of cases by a common order, the learned SingleJudge as well as the Division Bench unfortunately lost sight of the factsof each individual case.

13. In view of the facts and circumstances of the case, we allowthis appeal and accordingly set aside the impugned judgment and orderdated 11.06.2013 of the Division Bench as well as the judgment andorder dated 18.07.2012 passed by the learned Single Judge.

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14. The seniority of the respondent workman shall be countedFwith effect from the date of his fresh appointment in the service of theCorporation.

15. The appeal is accordingly allowed to the aforesaid extent. Nocosts.

Kalpana K. TripathyG

Appeal allowed.

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