THE DEPOT MANAGER, APSRTC versus M. MARUTHI
[2018] 13 S.C.R. 1216, Supreme Court of India, 2018
Outcome: Leave Granted & Allowed (Granted)
Segment: Facts
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THE DEPOT MANAGER, APSRTC
v.
M. MARUTHI
(Civil Appeal No. 12241 of 2018)
DECEMBER 7, 2018
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Labour Laws – Termination – Respondent appointed as
contract conductor – Departmental enquiry initiated against him –
Found guilty – Dismissed from service – Appeal preferred by the
respondent before the First Appellate Authority, rejected  –
Respondent raised Industrial Dispute – Industrial Tribunal rejected
the reference and confirmed the order of termination – Writ Petition
filed by respondent – Allowed by Single Judge relying upon an
earlier judgment dtd. 29.02.2012 passed by the Single Judge in
another Writ Petition No. 2786 of 2012 – Writ Appeal filed by the
appellant, dismissed by Division Bench – Appellant filed  review
petition, which was dismissed – Held: Division Bench refused to
review and recall the order passed in appeal solely on the ground
that in the similar facts and circumstances the Division Bench has
dismissed the appeals – However, the Division Bench did not at all
consider the distinguishing facts in Writ Petition No.2786 of 2012
and the facts of the case on hand – When the attention of the Division
Bench was drawn to the distinguishing facts in both the cases, the
Division Bench ought to have reviewed and recalled its order,
therefore, it erred in confirming the order passed by the Single Judge
– Order passed by the Single Judge and the Division Bench
quashed
– Practice & Procedure.
Allowing the appeals, the Court
HELD: 1.1 The Division Bench refused to review and recall
the order passed in appeal solely on the ground that in the similar
facts and circumstances the Division Bench has dismissed the
appeals. However, the Division Bench did not at all consider the
distinguishing facts in Writ Petition No.2786 of 2012 and the facts
of the case on hand. As such the Division Bench ought to have
considered the facts of individual case. The Single Judge allowed
the petition, holding that the matter was not res integra and was
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covered by an earlier judgment of a 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 Single
Judge.  [Para 6][1220-B-D]
1.2  In view of the aforesaid facts and circumstances and
when the attention of the Division Bench was drawn to the facts
of the case on hand and the distinguishing facts in both the cases,
the Division Bench ought to have reviewed and recalled its order.
However, unfortunately the Division Bench dismissed the review
application and lost sight of the facts of the present case. The
earlier order passed by the Single Judge dated 29.02.2012 in
Writ Petition No.2786 of 2012 upon which the reliance was placed
by Single Judge while allowing the petition, in the present case
shall not be applicable at all. The Division Bench, therefore, erred
in confirming the order passed by the Single Judge.  Therefore,
the order passed by the Single Judge and the Division Bench
cannot be sustained and the same deserve to be quashed.
[Paras 10, 11][1222-C-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12241
of 2018.
From the Judgment and Order dated 31.07.2013 of the High Court
of  Judicature of Andhra Pradesh at Hyderabad in Review Petition in
W.A.M.P. No. 1858 of 2013 in W.A. No. 144 of 2013.
With
Civil Appeal No. 12240 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
M. R. SHAH, J. 1. Leave granted.
2. Being aggrieved and dissatisfied with the judgment and order
dated 31.07.2013 passed by the Division Bench of the High Court of
judicature of Andhra Pradesh at Hyderabad passed in Review Petition
in W.A.M.P. No.1858 of 2013 in Writ Appeal No.144 of 2013 by which
the Division Bench has dismissed the said application and has refused to
THE DEPOT MANAGER, APSRTC v. M. MARUTHI
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review and recall its judgment and order passed in Writ Appeal No.144
of 2013, original applicant in review application has preferred the present
appeals, challenging the main order as well as the order passed in the
review application.
3. The facts leading to the present appeals in nutshell are as under:
a. That the respondent herein was appointed as a contract
conductor and was working in Cantonment Depot, Hyderabad.
b. That a departmental enquiry was initiated against him.
c. That in the departmental enquiry the respondent was found
guilty. Based on the Enquiry Officer’s report, the respondent was
dismissed from service.
d. That the appeal preferred by the respondent before the First
Appellate Authority came to be rejected on merits.
e. That thereafter the respondent raised an Industrial Dispute.
The Industrial Tribunal rejected the reference and confirmed the order
of termination.
f.  That thereafter the original writ petitioner preferred the Writ
Petition No.4317 of 2012 before the learned Single Judge invoking the
jurisdiction of the High Court under Article 226 of the Constitution of
India.
g. By judgment and order dated 30.10.2012 the learned Single
judge allowed the Writ Petition No.4317 of 2012 solely relying upon the
earlier judgment and order passed by the learned Single Judge dated
29.02.2012 passed in Writ Petition No.2786 of 2012 directing the petitioner
corporation to re-engage the respondent herein
in service and extend
the benefits of continuity of service from the date of termination till the
date of his re-engagement, excepting during the period when he was
absent and it would be without any monetary benefit and that it would be
counted only for the purpose of regularization at a later date.
h. Aggrieved by judgment and order of the learned Single Judge,
the appellant herein preferred Writ Appeal No.144 of 2013. The Division
Bench dismissed the said appeal without considering the distinguishing
facts pointed out on behalf of the appellant.
i. That thereafter the appellant herein filed the Review Petition
before the Division Bench and requested to review and recall the order
passed in Writ Appeal No.144 of 2013 submitting that the order passed
by the learned Single Judge dated 29.02.2012 in Writ Petition No.2786
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of 2012 upon which the reliance was placed by the learned Single Judge
while disposing of the main petition and which was affirmed by the
Division Bench vide order dated 25.04.2013 in Writ Appeal No.144 of
2013, was not applicable on facts.
4. It was specifically contended and pointed out that in the case
before the learned Single Judge in Writ Petition No.2786 of 2012, it was
found that the service was terminated without holding an enquiry. It was
submitted that so far as the present case is concerned, the employee
was dismissed from service after holding departmental enquiry and even
the industrial dispute was dismissed despite the distinguishing facts pointed
out to the Division Bench. By main order, the Division Bench has
dismissed the review application and has refused to review and recall
the order passed in Writ Appeal No.144 of 2013 by observing that in the
similar set of facts and circumstances the appeals are dismissed by the
Division Bench. The above order passed by the Division Bench in
dismissing the writ appeal and review application are the subject matter
of present appeals.
5. Mr. Gourab Banerji, learned Senior Counsel appearing on behalf
of the appellant has submitted that in the facts and circumstances of the
case, both the learned Single judge as well as the Division Bench of the
High Court have materially erred in relying upon the earlier decision of
the learned Single Judge dated 29.02.2012 in Writ Petition No.2786 of
2012. It is
submitted that in the present case, a departmental enquiry
was held against the workman. Following the report of the Enquiry Officer,
his service came to be terminated, against which a departmental appeal
was preferred which also came to be dismissed and an industrial dispute
raised by the workman came to be dismissed and the order of termination
came to be confirmed. It is submitted that despite above, the learned
Single Judge, without even considering the legality and validity of the
judgment and award passed by the Labour Court/Industrial Tribunal,
allowed the writ petition and directed the appellant to re-engage the
workman with the continuity of service. It is submitted that the Division
Bench mechanically confirmed the order passed by the learned Single
Judge without even considering the distinguishing facts pointed out. It is
submitted that thereafter when the review application was preferred
specifically pointing out the true and correct facts and the distinguishing
facts in the present case were pointed out, the Division Bench has
dismissed the review application again without considering the facts of
the case on hand and solely on the ground that in the similar facts and
THE DEPOT MANAGER, APSRTC v. M. MARUTHI
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circumstances the Division Bench has dismissed the other appeals. It is
submitted that therefore the Division Bench ought to have allowed the
review application and ought to have reviewed and recalled its earlier
order and ought to have considered the distinguishing facts which were
specifically pointed out, more particularly the fact that in the present
case the workman was dismissed after holding a departmental enquiry
and that his dismissal came to be confirmed by the Industrial Tribunal
which facts were not there in Writ Petition No.2786 of 2012 upon which
the reliance was placed by the learned Single Judge.
6. We have heard the learned counsel appearing for the respective
parties. On perusal the main order passed by the Division Bench rejecting
the review application, it appears that the Division Bench has refused to
review and recall the order passed in appeal solely on the ground that in
the similar facts and circumstances the Division Bench has dismissed
the appeals. However, the Division Bench has not at all considered the
distinguishing facts in Writ Petition No.2786 of 2012 and the facts of the
case on hand. As such the Division Bench ought to have considered the
facts of individual case.
7. 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 re-engage the workman with
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.
8. It is the above order of the learned Single Judge which was
affirmed by the Division Bench in a Writ Appeal.
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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 29.02.2012, 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
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/
THE DEPOT MANAGER, APSRTC v. M. MARUTHI
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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.”
10. In view of the aforesaid facts and circumstances and when
the attention of the Division Bench was drawn to the facts of the case
on hand and the distinguishing facts in both the cases, the Division Bench
ought to have reviewed and recalled its order. However, unfortunately
the Division Bench has dismissed the review application and unfortunately
lost sight of the facts of the present case.
11. As observed herein above, the earlier order passed by the
learned Single Judge dated 29.02.2012 in Writ Petition No.2786 of 2012
upon which the reliance was placed by learned Single Judge while
allowing the petition, in the present case shall not be applicable at all.
The Division Bench, therefore, erred in confirming the order passed by
the learned Single Judge.  That when the true and correct facts were
specifically pointed out and it was pointed out that the decision which
was relied upon by the learned Single Judge, shall not be applicable to
the facts of the case on hand and, therefore, the Division Bench erred in
confirming
the order passed by learned Single Judge, the Division Bench
ought to have reviewed and recalled its earlier order. As observed herein
above, the decision in Writ Petition No.2786 of 2012 upon which the
reliance was placed by learned Single Judge, shall not be applicable at
all.  Therefore, the order passed by the learned Single Judge and the
Division Bench cannot be sustained and the same deserve to be quashed.
12. In view of the reasons stated above, we allow these appeals
and accordingly set aside order dated 31.07.2013 passed in W.A.M.P.
No.1858 of 2013 in Writ Appeal No.144 of 2013 and the order passed by
the Division Bench in Writ Appeal No.144 of 2013 as well as the order
passed by the learned Single Judge in Writ Petition No.4317 of 2012.
13. The present appeals are allowed to the aforesaid extent. No
costs.
Divya Pandey
Appeals allowed.