REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

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

APSRTC & ORS.  

                                     Versus

.. APPELLANT(S)

SRI K. SATHAIAH  ..RESPONDENT(S)                      

J U D G M E N T

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

the learned Single Judge dated 18.07.2012 in Writ Petition

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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

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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

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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.”

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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

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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

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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.

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