APSRTC & ORS. versus SRI A. SANJEEV REDDY on 7 December 2018

614

[2018] 13 S.C.R. 614

SUPREME COURT REPORTS

[2018] 13 S.C.R.

A

APSRTC & ORS.

v.

SRI A. SANJEEV REDDY

(Civil Appeal No. 12247 of 2018)

BDECEMBER 07, 2018[DR. DHANANJAYA Y CHANDRACHUD AND

M. R. SHAH, JJ.]

Service Law – Termination – Plea of continuity of servicewith consequential benefits – Respondent was appointed as aCcontract conductor in the appellant-corporation – He was subjectedto a departmental enquiry, after which he was terminated –Respondent preferred departmental appeal, which was dismissed –However in departmental review, order for the re-engagement ofthe respondent on contract was issued – After his re-engagement,respondent filed writ petition and pleaded for continuity of serviceDwith consequential service benefits – Single Judge of the High Courtconsidering the earlier decision dated 29.02.2012 in Writ PetitionNo.2786 of 2012, disposed of the writ petition filed by therespondent and directed the appellant to extend the benefit ofcontinuity of service to him from the date of termination until theEdate of his re-engagement except for the period during which hewas absent – Direction was confirmed by the Division Bench of theHigh Court – On appeal, held: In instant case, respondent did notassail either the termination of his services following the enquiryor the fresh appointment – He only sought benefit of continuity ofservice from the date of the earlier termination until the date of hisFre-engagement – Grant of continuity by the Single Judge was notsustainable unless the order of termination and/or the freshappointment were challenged and adjudicated upon, seniority wouldnecessarily have to count with effect from the date of the freshappointment – As a matter of principle, continuity can be grantedGwhen an order of termination is set aside, to ensure that there is nohiatus in service – Thus, grant of continuity of service by the HighCourt was manifestly misconceived.

Disposing of the appeal, the Court

HELD: 1. The order of the Single Judge of the High CourtHin the present case, was exclusively based on the earlier decision614

dated 29.02.2012 in writ petition no.2786 of 2012, the judgmentof the Single Judge indicates that the earlier case also dealt withpersons who were working as contract employees who wereappointed after a regular selection. In some cases, terminationorders were passed without an enquiry on allegations ofmisconduct while in other cases, an enquiry was conducted.[Para 5] [618-C-D]

2. In the present case, the workman did not choose toassail either the termination of his services following the enquiryor the fresh appointment. All that was sought was that he shouldhave the benefit of continuity of service from the date of the earliertermination until re-engagement. [Para 6] [619-E]

3. Such a direction could not have been issued by the SingleJudge without the termination being put into question. The grantof continuity was not sustainable for the simple reason that unlessthe order of termination and/or the fresh appointment werechallenged and adjudicated upon, seniority would necessarily haveto count with effect from the date of the fresh appointment. As amatter of first principle, continuity can be granted when an orderof termination is set aside, to ensure that there is no hiatus inservice. [Para 7] [619-F]

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] [619-G-H; 620-A]

5. 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 direction AB

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Acontained 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 9] [620-B-C]

6. There is a considerable degree of merit in the submissionBof the Corporation that in deciding the entire batch of cases by acommon order, the Single Judge as well as the Division Bench ofthe High Court unfortunately lost sight of the facts of eachindividual case. [Para 10] [620-D-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12247of 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. 169of 2013.

Gourab Banerji, Sr. Adv., Sriharsha Peechara, Arjun Krishnan,DAshish 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.E

E2. Feeling aggrieved and dissatisfied with the judgment and orderdated 25.04.2013 passed by the Division Bench of the High Court ofJudicature of Andhra Pradesh at Hyderabad in Writ Appeal No.169 of2013 by which Division Bench has affirmed the judgment and orderpassed by the learned Single Judge passed in Writ Petition No.27412 of2012 by which the learned Single Judge solely relied upon the directionsFissued by the learned Single Judge in the order dated 29.02.2012 in Writpetition No.2786 of 2012 and directed the appellant-corporation to extendthe benefit of continuity of service from the date of termination till thedate of his re-engagement except for the period during which he wasabsent, however, without any monetary benefit and shall be countedGonly for regularization, the original respondents-employer-corporation haspreferred the present appeal.

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

a. The respondent was appointed as a contract conductor andwas working in Kamareddy Depot, Nizamabad District of the appellantHcorporation.

b. That a departmental enquiry was initiated against him by theappellant herein.

c. Following the report of the Enquiry Officer, his service came tobe terminated.

d. That the respondent herein preferred a departmental appealagainst the order of termination.

e. That the Departmental appeal came to be dismissed. However,in the course of the departmental review the Regional Manager issuedan order for the re-engagement of the respondent on contract on21.02.2011.

f. After his re-engagement the respondent invoked the jurisdictionof the High Court under Article 226 of the Constitution of India andprayed for continuity of service together with consequential servicebenefits.

g. 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 29.02.2012 in Writ Petition No.2786 of 2012.Though on behalf of the Corporation an effort was made to distinguishthe earlier decision on the ground that in the present case a full-fledgedenquiry has been held, this distinction did not find acceptance by thelearned Single Judge. On the contrary, it was held that in the previouscase, the learned Judge had found that the enquiry was not in keepingwith the principles of natural justice. Moreover, in the view of the SingleJudge, once the Corporation had granted a largesse in the form of afresh employment, the workman should not be deprived of the benefit ofcontinuity of service for the limited purpose of regularisation. Hence, interms of the direction in the earlier decision, the petition was disposed ofby directing the Corporation to extend the benefit of continuity of serviceto the workman from the date of termination until the date of hisre-engagement except for the period when he was absent. This was,however, without any monetary benefit and was directed to count onlyfor regularisation.

h. The above order of the learned Single Judge was affirmed bythe Division Bench in a Writ Appeal.

4. 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 present A

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Acase, 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 toBproceedings 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.C

5. 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 regularDselection. 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,Esuch 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 ofFregularization 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 ofGconsidering 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) shall H

be 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 re-engagement asfresh contract 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/revisional authorities shall entertain and dispose of those appeals/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.”

6. In the present case, the workman did not choose to assail eitherthe 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 untilre-engagement.

7. 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/or 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.

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 without A

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Ablemish. 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 may also note that the earlier order of the learned SingleBJudge 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 enquiryCin accordance with law, on the allegations of misconduct.

10. 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 factsDof each individual case.

11. For the above reasons, we allow this appeal and accordingly,set aside the impugned judgment and order dated 25.04.2013 in WritAppeal No.169 of 2013 passed by the Division Bench as well as thejudgment and order passed by the learned Single Judge in Writ PetitionENo.27412 of 2012. The seniority of the respondent workman shall becounted with effect from the date of his fresh appointment in the serviceof the Corporation.

12. The appeal is, accordingly, disposed of in the above terms. Nocosts.

F

Ankit Gyan

Appeal disposed of.

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