As per case facts, the respondent, a contract conductor, was dismissed from service after a departmental enquiry found him guilty, and this termination was upheld by the First Appellate Authority ...
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.12241 OF 2018
(ARISING OUT OF SLP (CIVIL) NO.29648 OF 2013)
THE DEPOT MANAGER,
APSRTC
Versus
.. APPELLANT(S)
M. MARUTHI ..RESPONDENT(S)
WITH
CIVIL APPEAL NO.12240 OF 2018
(ARISING OUT OF SLP (CIVIL) NO.18053 OF 2013)
J U D G M E N T
M.R.SHAH, J.
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
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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 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.
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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 reengage the respondent herein in
service and extend the benefits of continuity of service from the date
of termination till the date of his reengagement, 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.
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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 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
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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
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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 reengage 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 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
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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 fullfledged enquiry has been held, this distinction did not
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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 reengage the
workman with continuity of 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.
8. It is the above order of the learned Single Judge which was
affirmed by the Division Bench in a Writ Appeal.
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
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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 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
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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.”
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
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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.
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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.
……………………………..............................J.
(DR. DHANANJAYA Y. CHANDRACHUD)
.……….…………………….............................J.
( M.R. SHAH )
New Delhi,
December 07, 2018.
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