THE DEPOT MANAGER, APSRTCversusM. MARUTHI

1216                     [2018] 13
                SUPREME COURT      S.C.R. 1216
                                REPORTS                     [2018] 13 S.C.R.


 A                     THE DEPOT MANAGER, APSRTC
                                         v.
                                  M. MARUTHI
                         (Civil Appeal No. 12241 of 2018)
 B                             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 –
 C     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
 D     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
 E     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
 F
       – 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
 G     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
 H     the petition, holding that the matter was not res integra and was
                                    1216
       THE DEPOT MANAGER, APSRTC v. M. MARUTHI                             1217


covered by an earlier judgment of a Single Judge dated 29.02.2012          A
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]
                                                                           B
       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           C
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,             D
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.
                                                                           E
       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.
                                                                           F
       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
                                                                           G
       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   H
1218            SUPREME COURT REPORTS                         [2018] 13 S.C.R.


 A     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:
 B            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
 C     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
 D     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.
 E              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
 F     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,
 G     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
 H     by the learned Single Judge dated 29.02.2012 in Writ Petition No.2786
       THE DEPOT MANAGER, APSRTC v. M. MARUTHI                                  1219
                   [M. R. SHAH, J.]

of 2012 upon which the reliance was placed by the learned Single Judge          A
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        B
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           C
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.                                                             D
       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
                                                                                E
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           F
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
                                                                                G
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         H
1220             SUPREME COURT REPORTS                         [2018] 13 S.C.R.


 A     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
 B
       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
 C     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
 D     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
 E
       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
 F     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
 G
       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.
 H
       THE DEPOT MANAGER, APSRTC v. M. MARUTHI                               1221
                   [M. R. SHAH, J.]

       9. Since the order of the learned Single Judge in the present case,   A
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
                                                                             B
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   C
      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.                                       D
      (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.
                                                                             E
      (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               F
      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    G
      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/      H
1222               SUPREME COURT REPORTS                          [2018] 13 S.C.R.


 A              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
 B              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
 C     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
 D     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
 E     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
 F     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
 G     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.
 H