Supreme Court of India
THE DEPOT MANAGER versus SRI R. K. REDDY on 7 December 2018
1236 SUPREME COURT REPORTS [2018] 14 S.C.R.[2018] 14 S.C.R.1236
[2018] 14 S.C.R.1236
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THE DEPOT MANAGER
v.
SRI R. K. REDDY
(Civil Appeal No. 12245 of 2018)
BDECEMBER 07, 2018
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Labour Laws: Termination of service – Re-engagement andcontinuity of service – On facts, termination of employee on contract,Cafter charges of misconduct stood proved in a departmental enquiry– Said order upheld in departmental appeal, appeal before regionalmanager and the labour court – In writ petition by workman, theSingle Judge of the High Court relying on the order in earlier casedirected the employer-appellants to re-engage the employee inservice and extend the benefit of continuity of service from date ofDthe earlier termination until re-engagement – Said order upheld bythe Division Bench – On appeal, held: Single Judge without havingregard to the facts of the individual cases, mechanically issued the–directions exclusively relying on the earlier decision Single Judgeand the Division Bench materially erred in not appreciating thatEthe facts in the instant case and the decision relied upon were different– Even otherwise such a direction could not be issued by the Single–Judge without the termination being set aside Continuity can begranted when the order of termination is set aside to ensure there isno hiatus in service – Thus, the order passed by the Single Judge aswell as the Division Bench set aside.F
Allowing the appeal, the Court
HELD: 1.1 The Single Judge without having regard to thefacts of the individual cases, mechanically issued the directionsexclusively relying on the earlier decision. The Single Judge andthe Division Bench materially erred in not appreciating the factsGthat in the instant case the workman was dismissed from serviceafter holding the departmental enquiry and having all the chargesof misconduct proved, that was not so in the decision relied upon.Even otherwise such a direction cannot be issued by the SingleJudge without the termination being set aside. The ground ofHcontinuity was not sustainable for the simple reason that unless
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the order of termination is set aside, continuity cannot be granted.Continuity can be granted when the order of termination is setaside to ensure there is no hiatus in service. [Para 5, 7][1239-D-E; 1240-A]
1.2 The appellant has recruited personnel like the instantrespondent on contract after a regular process of selection.Eventually, the contract employees are to be regularised. Grantingcontinuity of service to a person such as the respondent, whowas found to have committed misconduct, would place him onthe 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. [Para 8]
[1240-A-C]
1.3 There is considerable degree of merit in the submissionthat in deciding the entire batch of cases by a common order, theSingle Judge as well as the Division Bench unfortunately lostsight of the facts of each individual case. The judgment and orderpassed by the Single Judge as well as the Division Bench is setaside. [Para 9][1240-C-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12245of 2018.
From the Judgment and Order dated 14.06.2013 of the High Courtof Judicature of Andhra Pradesh at Hyderabad in Writ Appeal No. 690of 2013.
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.
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1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 14.06.2013 passed by the Division Bench of the HighCourt of Judicature of Andhra Pradesh at Hyderabad in Writ AppealNo.690 of 2013 the original respondents – corporation – employer haspreferred the present appeal.
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1238 SUPREME COURT REPORTS [2018] 14 S.C.R.
A3. 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.
b.That he was subjected to departmental enquiry.
c.That following the report of the Enquiry Officer, his serviceBcame to be terminated.
d.That the departmental appeal also came to be rejected.
e.Appeal before the Regional Manager also came to be rejectedon merits.
f.That thereafter the original writ petitioner raised the industrialdispute and the same came to be dismissed by the PresidingOfficer, Labour Court I, Hyderabad vide judgment and orderin Industrial Dispute No.77 of 2011.
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g.That thereafter the workman-original writ petitionerapproached the High Court invoking jurisdiction of the HighDCourt under Article 226 of the Constitution of India by filingWrit Petition No.34192 of 2012.
h.That the learned Single Judge allowed the petition holdingthat the matter was not res-integra and was covered by theearlier judgment of the learned Single Judge dated 29.02.2012Ein Writ Petition No.2786 of 2012. Though on behalf of thecorporation an effort was made to distinguish the earlierdecision on the ground that in the present case a full-fledgedenquiry has been held, this distinction did not find acceptanceby the learned Single Judge and solely considering the decisionFof the learned Single Judge in Writ Petition No.2786 of 2012and without even considering the facts of the case, disposeof the writ petition by directing the original respondents to reengage the petitioner in service and extend the benefit ofcontinuity of service to him from the date of termination tillthe date of his re-engagement except for the period duringGwhich he was absent. This was, however, without monetarybenefit and was directed to count only for regularization.
i.The above order of the learned Single Judge was affirmed bythe Division Bench in Writ Appeal.
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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 SingleJudge 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 themisconduct 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 theappellants 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 29.02.2012in 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 of2012.
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 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.
7. Even otherwise such a direction cannot be issued by the learnedSingle Judge without the termination being set aside. The ground ofcontinuity was not sustainable for the simple reason that unless the orderof termination is set aside. As a matter of first principle, continuity cannot AB
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Abe granted. Continuity can be granted when the order of termination isset aside 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 processBof 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 inCissue, 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 SingleDJudge 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 14.06.2013in Writ Appeal No.690 of 2013 as well as the judgment and order passedEby learned Single Judge in Writ Petition No.34192 of 2012. No costs.
Nidhi Jain
Appeal allowed.
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