Supreme Court of India
THE DEPOT MANAGER & ORS. versus SRI S. KRISHNA on 7 December 2018
THE DEPOT MANAGER & ORS.
v.
SRI S. KRISHNA
(Civil Appeal No.12244 of 2018)
DECEMBER 07, 2018
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Labour Laws:
Termination of service – Of contract employee Pursuant toholding departmental enquiry – Departmental appeal as well asreview dismissed – Industrial dispute dismissed – Writ petitionallowed by Single Judge of High Court relying on its earlierjudgment and directed the employer to re-engage the employee andextend benefit of continuity of service from the date of terminationtill the date of his re-engagement – The order of Single Judge wasaffirmed by Division Bench of High Court – On appeal, held: HighCourt mechanically issued directions without having regard to thefacts of individual case – The facts of the earlier case on which theHigh Court had relied was distinct – Grant of continuity of serviceby the High Court was misconceived.
Allowing the appeal, the Court
HELD: 1. Single Judge of High Court without havingregard to the facts of the individual cases, mechanically issuedthe directions exclusively relying on the earlier decision. TheSingle Judge and the Division Bench both have materially erredin not appreciating the facts that in the present case the workmanwas dismissed from service after holding the departmental enquiryand having all the charges of misconduct proved. The earlierdecision was passed on the ground of violation of the principlesof natural justice as therein termination order was passed withoutholding an enquiry. [Paras 5 and 6][1266-C-F]
2. Even otherwise such a direction cannot be issued by theSingle Judge without the termination being set aside. The groundof continuity was not sustainable for the simple reason that unless
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Athe order of termination is set aside, continuity cannot be granted.Continuity is granted when the order of termination is set asideto ensure there is no hiatus in service. [Para 7][1266-F-H]
3. The appellant had recruited personnel like the presentrespondent on contract after a regular process of selection.BEventually, 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 himon the same footing as other contractual employees who have arecord without blemish. Hence, once a fresh appointment wasgiven to the respondent and neither the termination nor the freshCengagement was placed in issue, the grant of continuity of serviceby the High Court was manifestly misconceived. [Para 8][1267-A-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12244of 2018.D
From the Judgment and Order dated 24.07.2013 of the High Courtof Judicature of Andhra Pradesh at Hyderabad in Writ Appeal No.1344 of 2013.
Gourab Banerji, Sr. Adv., Sriharsha Peechara, Arjun Krishnan,EAshish Tiwari, Ms. Manisha Singh, Ms. Raka, C.S.N. Mohan Rao,Tanmaya Agarwal, A.N. Arora, Raj Kishor Choudhary, Advs. for theappearing parties.
The Judgment of the Court was delivered by
M. R. SHAH, J.F
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1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 24.07.2013 passed by the Division Bench of the HighCourt of judicature of Andhra Pradesh at Hyderabad in Writ AppealNo.1344 of 2013 the original respondents–corporation–employer hasGpreferred the present appeal.
3. The facts leading to the present appeal in nutshell are as under:
a. That the respondent was appointed as a contract driver andwas working with the appellant corporation.
Hb. That he was subjected to departmental enquiry.
c. That following the report of the Enquiry Officer, his servicecame to be terminated.
d. That the departmental appeal also came to be rejected.
e. Review petition before the Regional Manager also came to berejected on merits.
f. Thereafter the original writ petitioner raised the industrial disputeand the same came to be dismissed by the Presiding Officer,Labour Court I, Hyderabad vide judgment and order in IndustrialDispute No.93 of 2010.
g. Thereafter the workman-original writ petitioner approachedthe High Court invoking jurisdiction of the High Court underArticle 226 of the Constitution of India by filing Writ PetitionNo.5632 of 2012.
h. That the learned Single Judge allowed the petition holding thatthe matter was not res-integra and was covered by the earlierjudgment of the learned Single Judge dated 29.02.2012 in WritPetition No.2786 of 2012. Though on behalf of the corporationan effort was made to distinguish the earlier decision on theground that in the present case a full-fledged enquiry has beenheld, this distinction did not find acceptance by the learnedSingle Judge and solely considering the decision of the learnedSingle Judge in Writ Petition No.2786 of 2012 and without evenconsidering the facts of the case, dispose of the writ petitionby directing the original respondents to re-engage the petitionerin service and extend the benefit of continuity of service tohim 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 directedto count only for regularization.
i.The above order of the learned Single Judge was affirmed bythe Division Bench in Writ Appeal.
4. Mr. Gourab Banerji, learned Senior Counsel appearing on behalfof the appellants has submitted that the Division Bench has materiallyerred in affirming the order passed by the learned Single Judge andwithout even considering the facts of the individual case and that theDivision Bench has not properly appreciated the fact that learned Single A
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AJudge has amicably and without proper application of the facts disposedof the writ petition solely relying upon the order passed by the learnedSingle Judge dated 29.02.2012 in Writ Petition No.2786 of 2012, whichwas not applicable at all. It is submitted in the present case as such theoriginal writ petitioner was dismissed from service after holdingdepartmental enquiry and after having held the charges and theBmisconduct proved in a departmental enquiry. It is submitted that themain judgment and order passed by the Division Bench affirming theorder passed by the learned Single Judge cannot be sustained and requiredto be quashed and set aside.
5. Having heard the learned counsel appearing on behalf of theCappellants herein and having considered the main judgment and orderpassed by the learned Division Bench as well as the order passed by thelearned Single Judge, it appears that the learned Single Judge withouthaving regard to the facts of the individual cases, mechanically issuedthe directions exclusively relying on the earlier decision dated 29.02.2012Din Writ Petition No.2786 of 2012. However, the learned Single Judgeand the Division Bench both have materially erred in not appreciatingthe facts that in the present case the workman was dismissed fromservice after holding the departmental enquiry and having all the chargesof misconduct proved, that was not the case in Writ Petition No.2786 of2012E
6. 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 afterholding an enquiry in others, though in violation of the principles of naturaljustice. It was in that view of the matter that the direction contained inFClause 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.
7. Even otherwise such a direction cannot be issued by the learnedSingle Judge without the termination being set aside. The ground ofGcontinuity was not sustainable for the simple reason that unless the orderof termination is set aside. As a matter of first principle, continuity cannotbe granted. Continuity is granted when the order of termination is setaside to ensure there is no hiatus in service.
8. 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 processof 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 inissue, the grant of continuity of service by the High Court was manifestlymisconceived.
9. 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.
10. For the above reason, we allow the present appeal andaccordingly set aside the impugned judgment and order dated 24.07.2013in Writ Appeal No.1344 of 2013 as well as the judgment and order passedby learned Single Judge in Writ Petition No.5632 of 2012. No costs.
Kalpana K. Tripathy
Appeal allowed.
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