APSRTC & ORS. versus SRI A. SANJEEV REDDY
[2018] 13 S.C.R. 614, Supreme Court of India, 2018
Outcome: Leave Granted & Disposed off
Segment: Ratio
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APSRTC & ORS.
v.
SRI A. SANJEEV REDDY
(Civil Appeal No. 12247 of 2018)
DECEMBER 07, 2018
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Service Law – Termination – Plea of continuity of service
with consequential benefits – Respondent was appointed as a
contract conductor in the appellant-corporation – He was subjected
to a departmental enquiry, after which he was terminated –
Respondent preferred departmental appeal, which was dismissed –
However in departmental review, order for the re-engagement of
the respondent on contract was issued – After his re-engagement,
respondent filed writ petition and pleaded for continuity of service
with consequential service benefits – Single Judge of the High Court
considering the earlier decision dated 29.02.2012 in Writ Petition
No.2786 of 2012, disposed of the writ petition filed by the
respondent and directed the appellant to extend the benefit of
continuity of service to him from the date of termination until the
date of his re-engagement except for the period during which he
was absent – Direction was confirmed by the Division Bench of the
High Court – On appeal, held: In instant case, respondent did not
assail either the termination of his services following the enquiry
or the fresh appointment – He only sought benefit of continuity of
service from the date of the earlier termination until the date of his
re-engagement – Grant of continuity by the Single Judge was not
sustainable unless the order of termination and/or 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 principle, continuity can be granted
when an order of termination is set aside, to ensure that there is no
hiatus in service – Thus, grant of continuity of service by the High
Court was manifestly misconceived.
Disposing of the appeal, the Court
HELD: 1.  The order of the Single Judge of the High Court
in the present case, was exclusively based on the earlier decision
[2018] 13 S.C.R. 614
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dated 29.02.2012 in writ petition no.2786 of 2012, 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.
[Para 5] [618-C-D]
2.  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. [Para 6] [619-E]
3.  Such a direction could not have been issued by the 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/or 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. [Para 7] [619-F]
4. 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. [Para 8] [619-G-H; 620-A]
5. The earlier order of the 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
APSRTC & ORS. v. SRI A. SANJEEV REDDY
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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.  [Para 9] [620-B-C]
6. There is a considerable degree of merit in the submission
of the Corporation that in deciding the entire batch of cases by a
common order, the Single Judge as well as the Division Bench of
the High Court unfortunately lost sight of the facts of each
individual case. [Para 10] [620-D-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12247
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. 169
of 2013.
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
M. R. SHAH, J. 1. Leave granted.
2. Feeling aggrieved and dissatisfied with the judgment and order
dated 25.04.2013 passed by the Division Bench of the High Court of
Judicature of Andhra Pradesh at Hyderabad in Writ Appeal No.169 of
2013 by which Division Bench has affirmed the judgment and order
passed by the learned Single Judge passed in Writ Petition No.27412 of
2012 by which the learned Single Judge solely relied upon the directions
issued by the
learned Single Judge in the order dated 29.02.2012 in Writ
petition No.2786 of 2012 and directed the appellant-corporation to extend
the benefit of continuity of service from the date of termination till the
date of his re-engagement except for the period during which he was
absent, however, without any monetary benefit and shall be counted
only for regularization, the original respondents-employer-corporation has
preferred 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 and
was working in Kamareddy Depot, Nizamabad District of the appellant
corporation.
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b. That a departmental enquiry was initiated against him by the
appellant herein.
c. Following the report of the Enquiry Officer, his service came to
be terminated.
d. That the respondent herein preferred a departmental appeal
against the order of termination.
e. That the Departmental appeal came to be dismissed. However,
in the course of the departmental review the Regional Manager issued
an order for the re-engagement of the respondent on contract on
21.02.2011.
f. 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.
g. 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 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.
h. The above order of the learned Single Judge was affirmed by
the Division Bench in a Writ Appeal.
4. 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
APSRTC & ORS. v. SRI A. SANJEEV REDDY
[M. R. SHAH, J.]
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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.
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 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 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 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 re-engagement so ordered in para (1) shall
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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 re-engagement 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. 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.
7. 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/or 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.
8. 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
APSRTC & ORS. v. SRI A. SANJEEV REDDY
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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.
9. 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.
10. 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.
11. For the above reasons, we allow this appeal and accordingly,
set aside the impugned judgment and order dated 25.04.2013 in Writ
Appeal No.169 of 2013 passed by the Division Bench as well as the
judgment and order passed by the learned Single Judge in Writ Petition
No.27412 of 2012. The seniority of the respondent workman shall be
counted
with effect from the date of his fresh appointment in the service
of the Corporation.
12. The appeal is, accordingly, disposed of in the above terms. No
costs.
Ankit Gyan
Appeal disposed of.