APSRTC REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR MUSHIRABAD AND OTHERS versus A.U.M. RAO on 7 December 2018

APSRTC REP. BY ITS CHAIRMAN AND MANAGINGDIRECTOR MUSHIRABAD AND OTHERS

A.U.M. RAO

(Civil Appeal No. 12011 of 2018 etc.)DECEMBER 07, 2018

[DR. DHANANJAYA Y CHANDRACHUD AND

M. R. SHAH, JJ.]

Labour Laws:

Continuity of service – Grant of – Propriety – Termination ofservice of workman, after holding disciplinary proceedings – Indepartmental review order for re-engagement/re-employment of theworkman – Thereafter workman filed writ petition before High Courtseeking continuity of his service – Petition allowed by Single Judgeof High Court directing continuity of service from the date oftermination till the date of re-employment – Division Bench of Highcourt affirmed the order of Single Judge – On appeal, held: Oncefresh appointment was given and neither the termination order northe fresh employment was challenged, grant of continuity of serviceby the High Court was manifestly misconceived – Seniority of theworkman shall be counted with effect from the date of his freshappointment.

Disposing of the appeals, the Court

HELD: 1. In the present case, the workman did not chooseto assail either the termination of his services following theenquiry or the fresh appointment. Continuity can be granted whenan order of termination is set aside, to ensure that there is nohiatus in service. All that was sought was that he should have thebenefit of continuity of service from the date of the earliertermination until re-engagement. Unless the order of terminationand of the fresh appointment were challenged and adjudicatedupon, seniority would necessarily have to count with effect fromthe date of the fresh appointment. [Para 10, 11][1221-B-D]]

2. The appellant has recruited personnel like the presentrespondent 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,

1217

A

B

C

DE

FGH

Awho 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 freshengagement was placed in issue, the grant of continuity of serviceby the High Court was manifestly misconceived. The seniority ofBthe respondent workman shall be counted with effect from thedate of his fresh appointment in the service of the Corporation.[Paras 12 and 15][1221-D-F; 1222-B-C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12011of 2018.C

From the Judgment and Order dated 25.04.2013 of the High Courtof Judicature of Andhra Pradesh at Hyderabad in Writ Appeal No. 1665of 2012

With

DCivil Appeal No. 12012 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.

EThe Judgment of the Court was delivered byDR. DHANANJAYA Y CHANDRACHUD, J.Civil Appeal No.12011 of 2018

Leave granted.1. This appeal arises from a judgment and order dated 25 AprilF2013 of the Division Bench of the High Court of Judicature of AndhraPradesh in Writ Appeal No.1665 of 2012.

2. By its judgment, the Division Bench affirmed the correctnessof an order dated 04 September 2012 of a learned Single Judge.

3. The facts lie in a narrow compass.

G

4. In February, 2007, the respondent was appointed as a driver oncontract, after undergoing a process of selection. He was working inthe Waltair Depot in the district of Visakhapatnam with the appellant.

5. A disciplinary enquiry was held against the workman. Followingthe report of the Enquiry Officer, his services came to be terminated.HAfter the dismissal of a departmental appeal, and in the course of a

departmental review, the Regional Manager issued an order for the re-engagement of the respondent on contract on 3 February 2012. Afterhis re-engagement, the respondent invoked the jurisdiction of the HighCourt under Article 226 of the Constitution of India and prayed forcontinuity of service together with consequential service benefits.

6. The learned Single Judge allowed the petition, holding that thematter was not res integra and was covered by an earlier judgment of alearned Single Judge dated 29 February 2012 in Writ Petition No.2786of 2012. Though on behalf of the Corporation an effort was made todistinguish 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 ofthe 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 extend the benefit of continuityof service to the workman from the date of termination until the date ofhis re-engagement except for the period when he was absent. This was,however, without any monetary benefit and was directed to count onlyfor regularisation.

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

8. 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 thetermination 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 earlierdecision 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.

A

B

C

D

E

F

G

H

A

A9. Since the order of the learned Single Judge in the present case,was exclusively based on the earlier decision dated 29 February 2012, acopy of that judgment has been placed on the record. The judgment ofthe Single Judge indicates that the earlier case also dealt with personswho were working as contract employees who were appointed after aregular selection. In some cases, termination orders were passed withoutBan enquiry 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 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 of re-engagement, except for the period during which they were absent,and the said continuity of service granted to the employees shallbe without any monetary benefit and shall be counted only thepurpose of regularization at a future date.

C

D

(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.

E

(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 beneifit of continuity of service without anymonetary benefit and re-engagement so ordered in para (1) shallFbe available to only to such of these 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 continutiy of pastservice as under para-(1) above.

G

(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/

H

revisions in the light of the directions referred to above, preferablyon or before 31[st] 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.”

10. In the present case, the workman did not choose to assaileither the 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 until re-engagement.

11. 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.

12. 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.

13. We may also note that the earlier order of the learned SingleJudge dated 29 February 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 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.

A

B

C

D

E

F

G

H

A

14. 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.

15. For the above reasons, we allow this appeal and accordingly,set aside the impugned judgment and order dated 25 April 2013 of theDivision Bench. The seniority of the respondent workman shall becounted with effect from the date of his fresh appointment in the serviceof the Corporation.

B

16. The appeal is, accordingly, disposed of in the above terms.CNo costs.

Civil Appeal No.12012 of 2018

Leave granted.

This appeal is also disposed of in terms of the directions in CivilDAppeal No.12011 of 2018(@ SLP (CIVIL) NO.18047/2013).

Kalpana K. Tripathy

Appeals disposed of.

E

F

G

H