THE DEPOT MANAGER, APSRTC versus M. MARUTHI on 7 December 2018

SUPREME COURT REPORTS

[2018] 13 S.C.R.

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THE DEPOT MANAGER, APSRTC

v.

M. MARUTHI

(Civil Appeal No. 12241 of 2018)

DECEMBER 7, 2018

B[DR. DHANANJAYA Y CHANDRACHUD AND

M. R. SHAH, JJ.]

Labour Laws – Termination – Respondent appointed ascontract conductor – Departmental enquiry initiated against him –CFound guilty – Dismissed from service – Appeal preferred by therespondent before the First Appellate Authority, rejected –Respondent raised Industrial Dispute – Industrial Tribunal rejectedthe reference and confirmed the order of termination – Writ Petitionfiled by respondent – Allowed by Single Judge relying upon anearlier judgment dtd. 29.02.2012 passed by the Single Judge inDanother Writ Petition No. 2786 of 2012 – Writ Appeal filed by theappellant, dismissed by Division Bench – Appellant filed reviewpetition, which was dismissed – Held: Division Bench refused toreview and recall the order passed in appeal solely on the groundthat in the similar facts and circumstances the Division Bench hasEdismissed the appeals – However, the Division Bench did not at allconsider the distinguishing facts in Writ Petition No.2786 of 2012and the facts of the case on hand – When the attention of the DivisionBench was drawn to the distinguishing facts in both the cases, theDivision Bench ought to have reviewed and recalled its order,therefore, it erred in confirming the order passed by the Single JudgeF– Order passed by the Single Judge and the Division Bench quashed– Practice & Procedure.

Allowing the appeals, the Court

HELD: 1.1 The Division Bench refused to review and recallGthe order passed in appeal solely on the ground that in the similarfacts and circumstances the Division Bench has dismissed theappeals. However, the Division Bench did not at all consider thedistinguishing facts in Writ Petition No.2786 of 2012 and the factsof the case on hand. As such the Division Bench ought to haveconsidered the facts of individual case. The Single Judge allowedHthe petition, holding that the matter was not res integra and was covered by an earlier judgment of a Single Judge dated 29.02.2012in Writ Petition No.2786 of 2012. Though on behalf of theCorporation an effort was made to distinguish the earlier decisionon the ground that in the present case a full-fledged enquiry hasbeen held, this distinction did not find acceptance by the SingleJudge. [Para 6][1220-B-D]

1.2 In view of the aforesaid facts and circumstances andwhen the attention of the Division Bench was drawn to the factsof the case on hand and the distinguishing facts in both the cases,the Division Bench ought to have reviewed and recalled its order.However, unfortunately the Division Bench dismissed the reviewapplication and lost sight of the facts of the present case. Theearlier order passed by the Single Judge dated 29.02.2012 inWrit Petition No.2786 of 2012 upon which the reliance was placedby Single Judge while allowing the petition, in the present caseshall not be applicable at all. The Division Bench, therefore, erredin confirming the order passed by the Single Judge. Therefore,the order passed by the Single Judge and the Division Benchcannot be sustained and the same deserve to be quashed.[Paras 10, 11][1222-C-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12241of 2018.

From the Judgment and Order dated 31.07.2013 of the High Courtof Judicature of Andhra Pradesh at Hyderabad in Review Petition inW.A.M.P. No. 1858 of 2013 in W.A. No. 144 of 2013.

With

Civil Appeal No. 12240 of 2018.

Gourab Banerji, Sr. Adv., Sriharsha Peechara, Arjun Krishnan,Ashish 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. 1. Leave granted.

2. Being aggrieved and dissatisfied with the judgment and orderdated 31.07.2013 passed by the Division Bench of the High Court ofjudicature of Andhra Pradesh at Hyderabad passed in Review Petitionin W.A.M.P. No.1858 of 2013 in Writ Appeal No.144 of 2013 by whichthe Division Bench has dismissed the said application and has refused to A

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Areview and recall its judgment and order passed in Writ Appeal No.144of 2013, original applicant in review application has preferred the presentappeals, challenging the main order as well as the order passed in thereview application.

3. The facts leading to the present appeals in nutshell are as under:

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a. That the respondent herein was appointed as a contractconductor and was working in Cantonment Depot, Hyderabad.

b. That a departmental enquiry was initiated against him.

c. That in the departmental enquiry the respondent was foundguilty. Based on the Enquiry Officer’s report, the respondent wasCdismissed from service.

d. That the appeal preferred by the respondent before the FirstAppellate Authority came to be rejected on merits.

e. That thereafter the respondent raised an Industrial Dispute.The Industrial Tribunal rejected the reference and confirmed the orderDof termination.

f. That thereafter the original writ petitioner preferred the WritPetition No.4317 of 2012 before the learned Single Judge invoking thejurisdiction of the High Court under Article 226 of the Constitution ofIndia.E

g. By judgment and order dated 30.10.2012 the learned Singlejudge allowed the Writ Petition No.4317 of 2012 solely relying upon theearlier judgment and order passed by the learned Single Judge dated29.02.2012 passed in Writ Petition No.2786 of 2012 directing the petitionercorporation to re-engage the respondent herein in service and extendFthe benefits of continuity of service from the date of termination till thedate of his re-engagement, excepting during the period when he wasabsent and it would be without any monetary benefit and that it would becounted only for the purpose of regularization at a later date.

h. Aggrieved by judgment and order of the learned Single Judge,Gthe appellant herein preferred Writ Appeal No.144 of 2013. The DivisionBench dismissed the said appeal without considering the distinguishingfacts pointed out on behalf of the appellant.

i. That thereafter the appellant herein filed the Review Petitionbefore the Division Bench and requested to review and recall the orderpassed in Writ Appeal No.144 of 2013 submitting that the order passedHby the learned Single Judge dated 29.02.2012 in Writ Petition No.2786

of 2012 upon which the reliance was placed by the learned Single Judgewhile disposing of the main petition and which was affirmed by theDivision Bench vide order dated 25.04.2013 in Writ Appeal No.144 of2013, was not applicable on facts.

4. It was specifically contended and pointed out that in the casebefore the learned Single Judge in Writ Petition No.2786 of 2012, it wasfound that the service was terminated without holding an enquiry. It wassubmitted that so far as the present case is concerned, the employeewas dismissed from service after holding departmental enquiry and eventhe industrial dispute was dismissed despite the distinguishing facts pointedout to the Division Bench. By main order, the Division Bench hasdismissed the review application and has refused to review and recallthe order passed in Writ Appeal No.144 of 2013 by observing that in thesimilar set of facts and circumstances the appeals are dismissed by theDivision Bench. The above order passed by the Division Bench indismissing the writ appeal and review application are the subject matterof present appeals.

5. Mr. Gourab Banerji, learned Senior Counsel appearing on behalfof the appellant has submitted that in the facts and circumstances of thecase, both the learned Single judge as well as the Division Bench of theHigh Court have materially erred in relying upon the earlier decision ofthe learned Single Judge dated 29.02.2012 in Writ Petition No.2786 of2012. It is submitted that in the present case, a departmental enquirywas held against the workman. Following the report of the Enquiry Officer,his service came to be terminated, against which a departmental appealwas preferred which also came to be dismissed and an industrial disputeraised by the workman came to be dismissed and the order of terminationcame to be confirmed. It is submitted that despite above, the learnedSingle Judge, without even considering the legality and validity of thejudgment and award passed by the Labour Court/Industrial Tribunal,allowed the writ petition and directed the appellant to re-engage theworkman with the continuity of service. It is submitted that the DivisionBench mechanically confirmed the order passed by the learned SingleJudge without even considering the distinguishing facts pointed out. It issubmitted that thereafter when the review application was preferredspecifically pointing out the true and correct facts and the distinguishingfacts in the present case were pointed out, the Division Bench hasdismissed the review application again without considering the facts ofthe case on hand and solely on the ground that in the similar facts and A

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Acircumstances the Division Bench has dismissed the other appeals. It issubmitted that therefore the Division Bench ought to have allowed thereview application and ought to have reviewed and recalled its earlierorder and ought to have considered the distinguishing facts which werespecifically pointed out, more particularly the fact that in the presentcase the workman was dismissed after holding a departmental enquiryBand that his dismissal came to be confirmed by the Industrial Tribunalwhich facts were not there in Writ Petition No.2786 of 2012 upon whichthe reliance was placed by the learned Single Judge.

6. We have heard the learned counsel appearing for the respectiveparties. On perusal the main order passed by the Division Bench rejectingCthe review application, it appears that the Division Bench has refused toreview and recall the order passed in appeal solely on the ground that inthe similar facts and circumstances the Division Bench has dismissedthe appeals. However, the Division Bench has not at all considered thedistinguishing facts in Writ Petition No.2786 of 2012 and the facts of theDcase on hand. As such the Division Bench ought to have considered thefacts of individual case.

7. 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 toEdistinguish the earlier decision on the ground that in the present case afull-fledged enquiry has been held, this distinction did not find acceptanceby the learned Single Judge. On the contrary, it was held that in theprevious case, the learned Judge had found that the enquiry was not inkeeping with the principles of natural justice. Moreover, in the view ofFthe Single Judge, once the Corporation had granted a largesse in theform of a fresh employment, the workman should not be deprived of thebenefit of continuity of service for the limited purpose of regularisation.Hence, in terms of the direction in the earlier decision, the petition wasdisposed of by directing the Corporation to re-engage the workman withcontinuity of service to the workman from the date of termination untilGthe date of his re--engagement except for the period when he was absent.This was, however, without any monetary benefit and was directed tocount only for regularisation.

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

9. Since the order of the learned Single Judge in the present case,was exclusively based on the earlier decision dated 29.02.2012, a copyof 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 directionsin terms as agreed in that case:

“(1) In cases where the appellate/revisional authority has directedre-engagement of the contract employees as fresh employees,such employees shall be entitled to benefit of continuity of servicefrom the date of termination till the date of re-engagement, exceptfor the period during which they were absent, and the saidcontinuity of service granted to the employees shall be withoutany monetary benefit and shall be counted only for the purpose ofregularization 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 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 orbefore 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 reengagement as freshcontract 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/

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[2018] 13 S.C.R.

Arevisional 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 theBallegations of unauthorised absence of its employees from duty orother allegations of misconduct.”

10. In view of the aforesaid facts and circumstances and whenthe attention of the Division Bench was drawn to the facts of the caseon hand and the distinguishing facts in both the cases, the Division Benchought to have reviewed and recalled its order. However, unfortunatelyCthe Division Bench has dismissed the review application and unfortunatelylost sight of the facts of the present case.

11. As observed herein above, the earlier order passed by thelearned Single Judge dated 29.02.2012 in Writ Petition No.2786 of 2012upon which the reliance was placed by learned Single Judge whileDallowing the petition, in the present case shall not be applicable at all.The Division Bench, therefore, erred in confirming the order passed bythe learned Single Judge. That when the true and correct facts werespecifically pointed out and it was pointed out that the decision whichwas relied upon by the learned Single Judge, shall not be applicable toEthe facts of the case on hand and, therefore, the Division Bench erred inconfirming the order passed by learned Single Judge, the Division Benchought to have reviewed and recalled its earlier order. As observed hereinabove, the decision in Writ Petition No.2786 of 2012 upon which thereliance was placed by learned Single Judge, shall not be applicable atall. Therefore, the order passed by the learned Single Judge and theFDivision Bench cannot be sustained and the same deserve to be quashed.

12. In view of the reasons stated above, we allow these appealsand accordingly set aside order dated 31.07.2013 passed in W.A.M.P.No.1858 of 2013 in Writ Appeal No.144 of 2013 and the order passed bythe Division Bench in Writ Appeal No.144 of 2013 as well as the orderGpassed by the learned Single Judge in Writ Petition No.4317 of 2012.

13. The present appeals are allowed to the aforesaid extent. Nocosts.

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Divya Pandey