APSRTC REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR MUSHIRABAD AND OTHERS versus A.U.M. RAO
[2018] 14 S.C.R. 1217, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Ratio
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1217
APSRTC REP. BY ITS CHAIRMAN AND MANAGING
DIRECTOR MUSHIRABAD AND OTHERS
v.
A.U.M. RAO
(Civil Appeal No. 12011 of  2018 etc.)
DECEMBER 07, 2018
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Labour Laws:
Continuity of service – Grant of – Propriety – Termination of
service of workman, after holding disciplinary proceedings – In
departmental review order for re-engagement/re-employment of the
workman – Thereafter workman filed writ petition before High Court
seeking continuity of his service – Petition allowed by Single Judge
of High Court directing continuity of service from the date of
termination till the date of re-employment – Division Bench of High
court affirmed the order of Single Judge – On appeal, held: Once
fresh appointment was given and neither the termination order nor
the fresh employment was challenged, grant of continuity of service
by the High Court was manifestly misconceived – Seniority of the
workman shall be counted with effect from the date of his fresh
appointment.
Disposing of the appeals, the Court
HELD: 1. In the present case, the workman did not choose
to assail either the termination of his services following the
enquiry or the fresh appointment. Continuity can be granted when
an order of termination is set aside, to ensure that there is no
hiatus in service. All that was sought was that he should have the
benefit of continuity of service from the date of the earlier
termination until re-engagement. 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. [Para 10, 11][1221-B-D]]
2. 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 to a person such as the respondent,
[2018] 14 S.C.R. 1217
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1218                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
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. The seniority of
the respondent workman shall be counted with effect from the
date of his fresh appointment in the service of the Corporation.
[Paras 12 and 15][1221-D-F; 1222-B-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12011
of 2018.
From the Judgment and Order dated 25.04.2013 of the High Court
of Judicature of Andhra Pradesh at Hyderabad in Writ Appeal No. 1665
of 2012
With
Civil Appeal No. 12012 of 2018.
Gourab 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 the
appearing parties.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
Civil Appeal No.12011 of 2018
Leave granted.
1. This appeal arises from a judgment and order dated 25 April
2013 of the Division Bench of the High Court of Judicature of Andhra
Pradesh in Writ Appeal No.1665 of 2012.
2. By its judgment, the Division Bench affirmed the correctness
of an order dated 04 September 2012 of a learned Single
Judge.
3. The facts lie in a narrow compass.
4. In February, 2007, the respondent was appointed as a driver on
contract, after undergoing a process of selection.  He was working in
the Waltair Depot in the district of  Visakhapatnam with the appellant.
5. A disciplinary enquiry was held against the workman.  Following
the report of the Enquiry Officer, his services came to be terminated.
After the dismissal of a departmental appeal, and in the course of a
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departmental review, the Regional Manager issued an order for the re-
engagement of the respondent on contract on 3 February 2012.  After
his re-engagement, the respondent invoked the jurisdiction of the High
Court under Article 226 of the Constitution of India and prayed for
continuity of service together with consequential service benefits.
6. 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 February 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 a
full-fledged 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 service to the workman from the date of termination until the date of
his re-engagement except for the period when he was
absent. This was,
however,  without any monetary benefit and was directed to count only
for regularisation.
7. It is the above order of the learned Single Judge which was
affirmed by the Division Bench in a Writ Appeal.
8. 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 Division Bench without having regard to
the facts of individual cases.
APSRTC REP. BY ITS CHAIRMAN & MD, MUSHIRABAD v.
A.U.M. RAO [DR. DHANANJAYA Y CHANDRACHUD, J.]
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9. Since the order of the learned Single Judge in the present case,
was exclusively based on the earlier decision dated 29 February 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 re-engagement 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 re-
engagement, 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 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 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 beneifit of continuity of service without any
monetary benefit and re-engagement so ordered in para (1) shall
be available to only to such of these 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 re-engagement as
fresh contract employee/s, subject to medical fitness and other
formalities, but he/they shall not be entitled to continutiy 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/
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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.”
10. 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 re-
engagement.
11. 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.
12. 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
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.
13. We may also note that the earlier order of the learned Single
Judge dated 29 February 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.
APSRTC REP. BY ITS CHAIRMAN & MD, MUSHIRABAD v.
A.U.M. RAO [DR. DHANANJAYA Y CHANDRACHUD, J.]
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14. 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 learned Single
Judge as well as the Division Bench unfortunately lost sight of the facts
of each individual case.
15. For the above reasons, we allow this appeal and accordingly,
set aside the impugned judgment and order dated 25 April 2013 of the
Division Bench.  The seniority of the respondent workman shall be
counted with effect from the date of his fresh appointment in the service
of the Corporation.
16. The appeal is, accordingly, disposed of in the above terms.
No costs.
Civil Appeal No.12012 of 2018
Leave granted.
This appeal is also disposed of in terms of the directions in Civil
Appeal No.12011 of 2018(@ SLP (CIVIL) NO.18047/2013).
Kalpana K. Tripathy
Appeals disposed of.