U.P. State Road Transport Corporation vs Brijesh Kumar

2024 INSC 638 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2024 (ARISING OUT OF S.L.P (C) NO.10546 OF 2019)

U.P. STATE ROAD TRANSPORT CORPORATION & ORS. …APPELLANT(S)

VERSUS

BRIJESH KUMAR & ANR. …RESPONDENT(S)

JUDGMENT

PANKAJ MITHAL, J.

1. Leave granted.

2. Under challenge in this appeal by the Uttar Pradesh State

Road Transport Corporation1 is the order dated

12.09.2018 passed by the Division Bench of the

Allahabad High Court in Letters Patent Appeal arising

from a writ petition filed by the respondent wherein the Signature Not Verified Digitally signed by Nirmala Negi Date: 2024.08.29 17:41:19 IST learned Single Judge vide judgment and order dated Reason: 1 In short ‘UPSRTC’

1 12.01.2018 allowed the writ petition of the respondent

after setting aside the order dated 30.01.2016

terminating the services of the respondent passed by the

Assistant Regional Manager, Mathura, UPSRTC.

3. The father of the respondent Bal Krishna was a regular

conductor working with the appellant (UPSRTC) who died

on 18.10.2003 while in service. At that time, the

respondent was a minor. His mother moved an

application for his compassionate appointment but in

vain. The respondent attained the age of majority i.e. 18

years on 10.07.2008. He acquired the educational

qualification of high school and intermediate. His mother,

therefore, again moved an application seeking

compassionate appointment for him under the Uttar

Pradesh Recruitment of Dependants of Government

Servants Dying in Harness Rules, 19742.

4. There was no response to the above applications filed by

the mother of the respondent. However, subsequently

vide letter dated 19.10.2012, the appellant (UPSRTC)

informed the respondent that in connection with his

2 Hereinafter referred to as ‘Dying in Harness Rules’

2 application for compassionate appointment, the

corporation has decided to appoint him on preferential

basis as a contract conductor. Accordingly, he was

requested to report to the office and to deposit a security

amount of Rs.10,000/-. It appears that in pursuance

thereof the respondent submitted the security deposit

and entered into an agreement with the appellant

(UPSRTC) on 12.12.2012 to function as a contract

conductor. The respondent, thus, joined as contract

conductor.

5. During his service as contract conductor, he was found

guilty of carrying three passengers without ticket on two

occasions and on one occasion was found carrying

500 kg of extra luggage without booking. His services

were thus terminated on 30.01.2016 on the ground of

misconduct.

6. The respondent challenged the order dated 30.01.2016

terminating his services alleging that he was appointed

on compassionate basis and, therefore, was a permanent

employee whose services could not have been determined

without holding a disciplinary inquiry.

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7. The writ petition challenging the termination order was

allowed by the learned Single Judge vide judgment and

order dated 12.01.2018 and the same was upheld by the

Division bench by the order impugned herein dated

12.09.2018. The High Court concurrently held that the

appointment of the respondent was on compassionate

basis and as such he was a permanent employee whose

services could not have been terminated on account of

any misconduct without holding a disciplinary inquiry.

8. In the above background, the appellant (UPSRTC) has

come up in the present appeal.

9. Heard Smt. Garima Prashad, learned senior counsel for

the appellant and Shri Sudhir Kumar Saxena, learned

senior counsel for the respondent.

10. The submission of Smt. Garima Prashad, learned senior

counsel for the appellant (UPSRTC), is that the

respondent was never appointed on compassionate basis

under the Dying in Harness Rules. His appointment was

on contractual basis, independent of the Dying in

Harness Rules. Since his appointment was on

4 contractual basis, his services have rightly been

determined on the alleged misconduct.

11. Shri Sudhir Kumar Saxena, learned senior counsel for

the respondent, on the other hand defended the orders of

the High Court contending that the compassionate

appointments are always of permanent nature and the

services of such employees cannot be terminated without

holding a disciplinary inquiry. Therefore, the High Court

has not committed any error of law in setting aside the

termination order and holding that the services of the

respondent are of permanent nature.

12. There is no dispute to the legal proposition that any

appointment made on compassionate basis is in the

nature of a permanent appointment and is not liable to

be treated as temporary or contractual. However, the fact

remains whether in the instant case, the appointment of

the respondent is under the Dying in Harness Rules or is

independent of it on contractual basis.

13. Undisputedly, the father of the respondent died on

18.10.2003 while working as a regular conductor with

the appellant (UPSRTC). The mother of the respondent

5 had applied for his compassionate appointment but no

such appointment was offered to him as he was a minor

at that time. Even upon his attaining the age of majority

on 10.07.2008, the respondent was never offered any

compassionate appointment.

14. The record reveals that instead of offering compassionate

appointment to the respondent under the Dying in

Harness Rules, the respondent was extended the benefit

of the policy decision dated 09.08.2012 taken in the 188th

meeting of the Board of Directors of the appellant

(UPSRTC). The said policy envisages to offer preferential

treatment in the matter of appointment on contractual

basis to the dependents of the deceased employees. The

scheme nowhere provides for compassionate appointment

to the dependents. Accordingly, appellant (UPSRTC) vide

letter dated 19.10.2012 offered contractual appointment

to respondent as conductor pursuant to his application

for compassionate appointment. He was called upon in

the office of the appellant (UPSRTC) with the relevant

documents and to deposit a security amount of

Rs.10,000/-. The respondent duly accepted the said offer

6 and in response thereof submitted the security deposit

and entered into a written agreement on 12.12.2012

accepting the contractual appointment as conductor.

15. A plain reading of the policy decision as contained in

letter dated 31.08.2012, the letter of offer dated

19.10.2012 and the agreement dated 12.12.2012, it is

crystal clear that the respondent was appointed as a

contract conductor on preferential basis being the son of

the deceased employee. He was not appointed on

compassionate basis. There is no reference of any

compassionate appointment in any document.

16. The mere fact that the respondent was appointed on

contract basis pursuant to the application for

compassionate appointment would not make his

appointment to be one under Dying in Harness Rules.

17. There appears to be no document on record to prove that

the appointment of the respondent was on compassionate

basis so as to treat him as a permanent employee of the

appellant (UPSRTC). Despite repeated queries, no specific

material was shown from the side of the respondent to

establish that the respondent in fact was appointed on

7 compassionate basis. The respondent had accepted the

offer of contractual employment with his open eyes and

had even signed the agreement to that effect which is not

disputed. Thus, his appointment was simply on contract

basis and cannot be treated as permanent.

18. In view of the aforesaid facts and circumstances, we are

of the opinion that the learned Single Judge and the

Division Bench manifestly erred in law in holding that the

respondent was appointed under Dying in Harness Rules.

The High Court, erroneously on complete misreading of

the material on record, held that the appointment of the

respondent to be on compassionate basis and that he is

liable to be treated as a permanent employee. The High

Court has erred factually in treating the appointment of

the respondent under the Dying in Harness Rules,

though, it is not so.

19. The services of the respondent have been determined

solely on the ground of misconduct as alleged but

without holding any regular inquiry or affording any

opportunity of hearing to him. The termination order has

been passed on the basis of some report which probably

8 was not even supplied to the respondent. No show cause

notice appears to have been issued to the respondent.

Therefore, the order of termination of his services, even if

on contractual basis, has been passed on account of

alleged misconduct without following the Principles of

Natural Justice. The termination order is apparently

stigmatic in nature which could not have been passed

without following the Principles of Natural Justice.

20. In the light of the above facts and discussion, we are of

the opinion that the order dated 30.01.2016 terminating

the services of the respondent is bad in law and cannot

be sustained. It has rightly been set aside though on a

different ground that the respondent is a permanent

employee having been appointed on compassionate basis.

The appointment of the respondent, in fact, is a

contractual appointment entitling him to continue as

such in service and to claim regularization if so advised

in accordance with law.

21. The judgments and orders of the High Court dated

12.01.2018 and 12.09.2018 are set aside to the extent

they hold the appointment to be on compassionate basis

9 under the Dying in Harness Rules and that of a

permanent nature but quashing of the termination order

is maintained.

22. The appeal is partly allowed as above.

....................………………………….. J. (PAMIDIGHANTAM SRI NARASIMHA)

.............……………………………….. J.

(PANKAJ MITHAL) NEW DELHI;

AUGUST 28, 2024

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