Supreme Court of India
APSRTC & ORS. versus G. KONDAL RAO on 7 December 2018
316 SUPREME COURT REPORTS [2018] 14 S.C.R.[2018] 14 S.C.R. 316
[2018] 14 S.C.R. 316
A
APSRTC & ORS.
v.
G. KONDAL RAO
(Civil Appeal No. 12243 of 2018)
DECEMBER 07, 2018
B[DR. DHANANJAYA Y CHANDRACHUD ANDM. R. SHAH, JJ.]
Service Law – Termination – Re-engagement and continuityin service – Respondent was appointed as a contract conductorand was working with the appellant-corporation – He was subjectedCto a departmental enquiry, after which he was terminated –Departmental appeal and Review petition preferred by him wererejected – Writ petition by the respondent – Single Judge of theHigh Court considering the earlier decision dated 29.02.2012 inWrit Petition No.2786 of 2012, disposed of the writ petition filed byDthe respondent and directed the appellant to re-engage therespondent in service and extend the benefit of continuity of serviceto him from the date of termination till the date of his re-engagementexcept for the period during which he was absent – Same was upheldby the Division Bench of the High Court – On appeal, held: SingleJudge of the High Court without having regard to the facts of theEcase, mechanically issued directions exclusively relying on the earlierdecision dated 29.02.2012 in Writ Petition No.2786 of 2012 – BothSingle Judge and the Division Bench of the High Court erred in notappreciating the facts of the instant case – In the instant case, theworkman was dismissed from service after the departmental enquiryFand when the charges of misconduct were proved, that was not thecase in Writ Petition No.2786 of 2012 – Furthermore, benefit ofcontinuity of service ordered by the Single Judge was not sustainableunless the order of termination is set aside – Continuity is grantedwhen the order of termination is set aside to ensure there is no hiatusin service – Thus, order of the Single Judge and the Division BenchGof the High Court set aside.
Allowing the appeal, the Court
HELD: 1. The Single Judge of the High Court withouthaving regard to the facts of the individual cases, mechanically H
issued the directions exclusively relying on the earlier decisiondated 29.02.2012 in Writ Petition No.2786 of 2012. However,the Single Judge and the Division Bench of the High Court bothhave materially erred in not appreciating the facts that in thepresent case the workman was dismissed from service afterholding the departmental enquiry and having all the charges ofmisconduct proved, that was not the case in Writ PetitionNo. 2786 of 2012. [Para 5][319-F-H]
2. The earlier order of the Single Judge dated 29.02.2012was in a batch of cases, where termination orders were issuedwithout holding an enquiry in certain cases and after holding anenquiry in others, though in violation of the principles of naturaljustice. It was in that view of the matter that the directioncontained in Clause 6 of the operative order provided that incases where no enquiry was conducted, the Corporation wouldbe at liberty to conduct an enquiry in accordance with law, on theallegations of misconduct. [Para 6][320-A-B]
3. 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 unlessthe order of termination is set aside, as a matter of first principle,continuity cannot be granted. Continuity is granted when the orderof termination is set aside to ensure there is no hiatus in service.[Para 7][320-C]
4. There is another reason why the judgment of the HighCourt cannot be sustained. It is common ground that the appellanthas recruited personnel like the present respondent on contractafter a regular process of selection. Eventually, the contractemployees are to be regularised. Granting continuity of serviceto a person such as the respondent, who was found to havecommitted misconduct, would place him on the same footing asother contractual employees who have a record without blemish.Hence, once a fresh appointment was given to the respondentand neither the termination nor the fresh engagement was placedin issue, the grant of continuity of service by the High Court wasmanifestly misconceived. [Para 8][320-D-E]
AB
C
D
E
FG
318 SUPREME COURT REPORTS [2018] 14 S.C.R.
ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 12243of 2018
From the Judgment and Order dated 26.04.2013 of the High Courtof Judicature at Andhra Pradesh at Hyderabad in Writ Appeal No. 246of 2013.BGourab 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 CM. R. SHAH, J.
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1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 26.04.2013 passed by the Division Bench of the HighCourt of judicature of Andhra Pradesh at Hyderabad in Writ Appeal No.D246 of 2013 the original respondents–corporation–employer has preferredthe present appeal.
3. The facts leading to the present appeal in nutshell are as under:
a. That the respondent was appointed as a contract conductorand was working with the appellant corporation.
Eb. That he was subjected to departmental enquiry.
c. That following the report of the Enquiry Officer, his servicescame to be terminated.
d. That the departmental appeal also came to be rejected.
e. Review petition before the Regional Manager also came to beFrejected on merits.
f. That thereafter straightway and without recourse to remediesavailable under the Industrial Disputes Act, the workmanoriginal writ petitioner approached the High Court invokingjurisdiction of the High Court under Article 226 of theGConstitution of India by filing Writ Petition No.25970 of 2012.
g.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 theHground that in the present case a full-fledged enquiry has been held, 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 withouteven considering the facts of the case, dispose of the writpetition by directing the original respondents to re-engage thepetitioner in service and extend the benefit of continuity ofservice to him from the date of termination till the date of hisre-engagement except for the period during which he wasabsent. This was, however, without monetary benefit and wasdirected to count only for regularization.
h. 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 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.2786of 2012
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320 SUPREME COURT REPORTS [2018] 14 S.C.R.
A
A6. 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 enquiryBwas 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 orderCof 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 recruitedDpersonnel 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 withoutEblemish. 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 ofFlearned 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 andGaccordingly set aside the impugned judgment and order dated 26.04.2013in Writ Appeal No.246 of 2013 as well as the judgment and order passedby learned Single Judge in Writ Petition No.25970 of 2012. No costs.
Ankit Gyan
H