THE DIVISIONAL MANAGER APSRTC & ANR. versus B. VENKATAIAH on 7 December 2018

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the judgment and orderdated 30.12.2013 passed by the Division Bench of High Court of judicatureof Andhra Pradesh at Hyderabad in Writ Appeal No.1959 of 2013 bywhich the Division Bench has affirmed the judgment and order passedby the learned Single Judge dated 01.08.2012 passed in Writ PetitionNo. 23552 of 2012, the original respondent-appellants herein-corporationhave preferred the present appeal.

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

a. That the respondent herein was appointed as driver on contract,after undergoing a process of selection. He was working in Mushirabad-I Depot, Hyderabad.

b. That a departmental enquiry was initiated against the workman.

c. That following the report of the Enquiry Officer his servicecame to be terminated.

d. After the dismissal of the departmental appeal and in the courseof the departmental review, the Divisional Manager issued an order forthe re-engagement of the respondent on contract on 27.04.2011.

e. After his re-engagement the respondent initiated the jurisdictionof the High Court under article 226 of the Constitution of India andprayed to consider the order/proceedings dated 27.04.2011 and prayedfor the continuity of service appointment benefits and all consequentialbenefits including regularization.

4. 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 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.

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AHence, 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.B5. The above order of the learned Single Judge was affirmed bythe Division Bench in a Writ Appeal.

6. 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 presentCcase, 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 submittedDthat 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.

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7. 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 regularFselection. 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 hasGdirected 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 ofre-engagement, except for the period during which they wereabsent, and the said continuity of service granted to the employeesshall be without any monetary benefit and shall be counted onlyHfor the purpose of regularization 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 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.”

8. 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.

9. 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 effect A

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Afrom 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.

10. There is another reason why the judgment of the High Courtcannot be sustained. It is common ground that the appellant has recruitedBpersonnel 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 respondentCand neither the termination nor the fresh engagement was placed inissue, the grant of continuity of service by the High Court was manifestlymisconceived.

11. We may also note that the earlier order of the learned SingleJudge dated 29.02.2012 was in a batch of cases, where terminationDorders 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.E

12. 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.F

13. For the above reasons, we allow this appeal and accordingly,set aside the impugned judgment and order dated 30.12.2013 of theDivision Bench passed in Writ Appeal No.1959 of 2013 as well as thejudgment and order passed by the learned Single Judge which wasimpugned before the Division Bench in Writ Appeal No.1959 of 2013.GThe seniority of the respondent workman shall be counted with effectfrom the date of his fresh appointment in the service of the Corporation. The appeal is, accordingly, disposed of in the above terms. Nocosts.

HNidhi Jain