Apsrtc vs K. Sathaiah

CIVIL APPEAL NO.12242 OF 2018 (ARISING OUT OF SLP (CIVIL) NO.7807 OF 2014)

APSRTC & ORS. .. APPELLANT(S)

Versus

SRI K. SATHAIAH ..RESPONDENT(S)

JUDGMENT

M.R.SHAH, J.

Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 11.06.2013 passed by the Division Bench of the

High Court of Judicature of Andhra Pradesh at Hyderabad in

Writ Appeal No.864 of 2013 by which the Division Bench

dismissed the same appeal and confirmed judgment passed by Signature Not Verified Digitally signed by R NATARAJAN Date: 2019.01.25 16:48:29 IST

the learned Single Judge dated 18.07.2012 in Writ Petition Reason:

1

No.17541 of 2012 directing the appellants herein–original

respondents to extend the benefit of continuity of service to the

workman from the date of termination till the date of re­

engagement except for the period when he was absent and that

would be without monetary benefit and that it would be granted

only for the purpose of regularization at a later date, the original

respondents­ Corporation­employer have preferred the present

appeal.

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

a. That the respondent herein­original writ petitioner was

appointed as a contract driver and working with the

appellant corporation.

b. That a departmental enquiry was initiated against him

for remaining on unauthorized absence.

c. Following the report of the Enquiry Officer, his services

came to be terminated.

d. After the dismissal of the departmental appeal, and in

the course of the departmental review, the Divisional

Manager issued an order for the re­engagement of the

respondent on contract on 06.07.2012. 2 e. After the re­engagement, the respondent invoked the

jurisdiction of the High Court under Article 226 of the

Constitution of India and prayed for continuity of service

together consequential service benefit.

4. The learned Single Judge allowed the petition, holding that the

matter was not res integra and was covered by an earlier

judgment of a learned Single Judge dated 29.02.2012 in Writ

Petition No.2786 of 2012. Though on behalf of the Corporation

an effort was made to distinguish the earlier decision on the

ground that in the present case after full­fledged enquiry has

been held, this distinction did not find acceptance by the learned

Single Judge. On the contrary, it was held that in the previous

case, the learned Judge had found that the enquiry was not in

keeping with the principles of natural justice. Moreover, in the

view of the Single Judge, once the Corporation had granted a

largesse in the form of a fresh employment, the workman should

not be deprived of the benefit of continuity of service for the

limited purpose of regularisation. Hence, in terms of the

direction in the earlier decision, the petition was disposed of by

directing the Corporation to extend the benefit of continuity of

3 service to the workman from the date of termination until the

date of his reengagement except for the period when he was

absent. This was, however, without any monetary benefit and

was directed to count only for regularisation.

5. It is the above order of the learned Single Judge which was

affirmed by the Division Bench in a Writ Appeal.

6. Mr. Gourab Banerji, learned senior counsel appearing on

behalf of the appellants submits that there was a manifest error

on the part of both the learned Single Judge and the Division

Bench. In the present case, a disciplinary enquiry was held

against the workman after which an initial decision was taken to

terminate him from service. In a departmental review, he was

granted fresh appointment. Neither the termination nor the order

granting him fresh appointment as a contract driver were

challenged. As a matter of fact, it has also been submitted that

in certain other cases, the workmen had taken recourse to

proceedings before the Industrial Court but in the present case

that was not done. Be that as it may, the learned Single Judge

relied on the earlier decision and issued directions, to govern the

entire batch of cases. This direction was confirmed by the 4 Division Bench without having regard to the facts of individual

cases.

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 copy of that judgment has been placed on the

record. The judgment of the Single Judge indicates that the

earlier case also dealt with persons who were working as contract

employees who were appointed after a regular selection. In some

cases, termination orders were passed without an enquiry on

allegations of misconduct while in other cases, an enquiry was

conducted. The learned Single Judge, issued the following

directions in terms as agreed in that case:

“(1) In cases where the appellate/revisional authority has directed reengagement of the contract employees as fresh employees, such employees shall be entitled to benefit of continuity of service from the date of termination till the date of reengagement, except for the period during which they were absent, and the said continuity of service granted to the employees shall be without any monetary benefit and shall be counted only for 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 be allowed to affect the seniority of regularly working employees or for 5 other benefits, but shall be counted only for the purpose of considering their cases for regularization.

(3)There are also cases where the orders of termination are challenged, either before the appellate/revisional authorities or before this Court, after six or seven years of date of termination. In all such cases the benefit of continuity of service without any monetary benefit and reengagement so ordered in para (1) shall be available to only to such of those employees who have approached the appellate/revisional authorities or this Court within three years from the date of termination.

(4)In cases where appeals/revisions or writ petitions are filed after three years of the orders of termination, it is directed that the such petitioner/s shall be considered for re­engagement as fresh contract employee/s, subject to medical fitness and other formalities, but he/they shall not be entitled to continuity of past service 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, preferably on or before 31st March, 2012.

(6)In cases where no enquiry was conducted, the respondent Corporation shall be free to conduct enquiry as per law into the allegations of unauthorised absence of its employees from duty or other allegations of misconduct.”

6

8. In the present case, the workman did not choose to assail

either the termination of his services following the enquiry or the

fresh appointment. All that was sought was that he should have

the benefit of continuity of service from the date of the earlier

termination until reengagement.

9. Such a direction could not have been issued by the learned

Single Judge without the termination being put into question.

The grant of continuity was not sustainable for the simple reason

that unless the order of termination and of the fresh appointment

were challenged and adjudicated upon, seniority would

necessarily have to count with effect from the date of the fresh

appointment. As a matter of first principle, continuity can be

granted when an order of termination is set aside, to ensure that

there is no hiatus in service.

10. There is another reason why the judgment of the High Court

cannot be sustained. It is common ground that the appellant

has recruited personnel like the present respondent on contract

after a regular process of selection. Eventually, the contract

employees are to be regularised. Granting continuity of service

7 to a person such as the respondent, who was found to have

committed misconduct, would place him on the same footing as

other contractual employees who have a record without blemish.

Hence, once a fresh appointment was given to the respondent

and neither the termination nor the fresh engagement was

placed in issue, the grant of continuity of service by the High

Court was manifestly misconceived.

11. We may also note that the earlier order of the learned Single

Judge dated 29.02.2012 was in a batch of cases, where

termination orders were issued without holding an enquiry in

certain cases and after holding an enquiry in others, though in

violation of the principles of natural justice. It was in that view of

the matter that the direction contained in Clause 6 of the

operative order provided that in cases where no enquiry was

conducted, the Corporation would be at liberty to conduct an

enquiry in accordance with law, on the allegations of misconduct.

12. We find a considerable degree of merit in the submission of

learned senior counsel appearing on behalf of the Corporation

that in deciding the entire batch of cases by a common order, the

8 learned Single Judge as well as the Division Bench unfortunately

lost sight of the facts of each individual case.

13. In view of the facts and circumstances of the case, we allow

this appeal and accordingly set aside the impugned judgment

and order dated 11.06.2013 of the Division Bench as well as the

judgment and order dated 18.07.2012 passed by the learned

Single Judge.

14. The seniority of the respondent workman shall be counted

with effect from the date of his fresh appointment in the service of

the Corporation.

15. The appeal is accordingly allowed to the aforesaid extent. No

costs.

..…………………………..............................J. (DR. DHANANJAYA Y. CHANDRACHUD)

…………….……………….............................J. ( M.R. SHAH ) New Delhi, December 07, 2018.

9