THE DEPOT MANAGER & ORS.versusSRI S. KRISHNA

                       [2018] 14 S.C.R. 1263                            1263


                THE DEPOT MANAGER & ORS.                                A
                                 v.
                         SRI S. KRISHNA
                  (Civil Appeal No.12244 of 2018)
                       DECEMBER 07, 2018                                B
        [DR. DHANANJAYA Y CHANDRACHUD AND
                        M. R. SHAH, JJ.]
      Labour Laws:
                                                                        C
        Termination of service – Of contract employee Pursuant to
holding departmental enquiry – Departmental appeal as well as
review dismissed – Industrial dispute dismissed – Writ petition
allowed by Single Judge of High Court relying on its earlier
judgment and directed the employer to re-engage the employee and
extend benefit of continuity of service from the date of termination    D
till the date of his re-engagement – The order of Single Judge was
affirmed by Division Bench of High Court – On appeal, held: High
Court mechanically issued directions without having regard to the
facts of individual case – The facts of the earlier case on which the
High Court had relied was distinct – Grant of continuity of service
by the High Court was misconceived.                                     E

      Allowing the appeal, the Court
      HELD: 1. Single Judge of High Court without having
regard to the facts of the individual cases, mechanically issued
the directions exclusively relying on the earlier decision. The         F
Single Judge and the Division Bench both have materially erred
in not appreciating the facts that in the present case the workman
was dismissed from service after holding the departmental enquiry
and having all the charges of misconduct proved. The earlier
decision was passed on the ground of violation of the principles
of natural justice as therein termination order was passed without      G
holding an enquiry. [Paras 5 and 6][1266-C-F]
      2. Even otherwise such a direction cannot be issued by the
Single Judge without the termination being set aside. The ground
of continuity was not sustainable for the simple reason that unless
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                                1263
1264                SUPREME COURT REPORTS                     [2018] 14 S.C.R.


 A     the order of termination is set aside, continuity cannot be granted.
       Continuity is granted when the order of termination is set aside
       to ensure there is no hiatus in service. [Para 7][1266-F-H]
             3. The appellant had recruited personnel like the present
       respondent on contract after a regular process of selection.
 B     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
 C     engagement was placed in issue, the grant of continuity of service
       by the High Court was manifestly misconceived. [Para 8]
       [1267-A-C]
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12244
       of 2018.
 D
             From the Judgment and Order dated 24.07.2013 of the High Court
       of Judicature of Andhra Pradesh at Hyderabad in Writ Appeal No.
       1344 of 2013.
             Gourab Banerji, Sr. Adv., Sriharsha Peechara, Arjun Krishnan,
 E     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.
 F
             1. Leave granted.
             2. Feeling aggrieved and dissatisfied with the impugned judgment
       and order dated 24.07.2013 passed by the Division Bench of the High
       Court of judicature of Andhra Pradesh at Hyderabad in Writ Appeal
       No.1344 of 2013 the original respondents–corporation–employer has
 G     preferred the present appeal.
             3. The facts leading to the present appeal in nutshell are as under:
             a. That the respondent was appointed as a contract driver and
                was working with the appellant corporation.
 H           b. That he was subjected to departmental enquiry.
      THE DEPOT MANAGER & ORS. v. SRI S. KRISHNA                                 1265
                   [M. R. SHAH, J.]

      c. That following the report of the Enquiry Officer, his service           A
         came to be terminated.
      d. That the departmental appeal also came to be rejected.
      e. Review petition before the Regional Manager also came to be
         rejected on merits.
                                                                                 B
      f. Thereafter the original writ petitioner raised the industrial dispute
         and the same came to be dismissed by the Presiding Officer,
         Labour Court I, Hyderabad vide judgment and order in Industrial
         Dispute No.93 of 2010.
      g. Thereafter the workman-original writ petitioner approached              C
         the High Court invoking jurisdiction of the High Court under
         Article 226 of the Constitution of India by filing Writ Petition
         No.5632 of 2012.
      h. That the learned Single Judge allowed the petition holding that
         the matter was not res-integra and was covered by the earlier           D
         judgment of the 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 and solely considering the decision of the learned         E
         Single Judge in Writ Petition No.2786 of 2012 and without even
         considering the facts of the case, dispose of the writ petition
         by directing the original respondents to re-engage the petitioner
         in service and extend the benefit of continuity of service to
         him from the date of termination till the date of his re                F
         engagement except for the period during which he was absent.
         This was, however, without monetary benefit and was directed
         to count only for regularization.
      i. The above order of the learned Single Judge was affirmed by
         the Division Bench in Writ Appeal.
                                                                                 G
       4. Mr. Gourab Banerji, learned Senior Counsel appearing on behalf
of the appellants has submitted that the Division Bench has materially
erred in affirming the order passed by the learned Single Judge and
without even considering the facts of the individual case and that the
Division Bench has not properly appreciated the fact that learned Single
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1266                 SUPREME COURT REPORTS                        [2018] 14 S.C.R.


 A     Judge has amicably and without proper application of the facts disposed
       of the writ petition solely relying upon the order passed by the learned
       Single Judge dated 29.02.2012 in Writ Petition No.2786 of 2012, which
       was not applicable at all. It is submitted in the present case as such the
       original writ petitioner was dismissed from service after holding
       departmental enquiry and after having held the charges and the
 B
       misconduct proved in a departmental enquiry. It is submitted that the
       main judgment and order passed by the Division Bench affirming the
       order passed by the learned Single Judge cannot be sustained and required
       to be quashed and set aside.
              5. Having heard the learned counsel appearing on behalf of the
 C     appellants herein and having considered the main judgment and order
       passed by the learned Division Bench as well as the order passed by the
       learned Single Judge, it appears that the learned Single Judge without
       having regard to the facts of the individual cases, mechanically issued
       the directions exclusively relying on the earlier decision dated 29.02.2012
 D     in Writ Petition No.2786 of 2012. However, the learned Single Judge
       and the Division Bench both have materially erred in not appreciating
       the facts that in the present case the workman was dismissed from
       service after holding the departmental enquiry and having all the charges
       of misconduct proved, that was not the case in Writ Petition No.2786 of
       2012
 E
              6. 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
 F     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.
              7. Even otherwise such a direction cannot be issued by the learned
       Single Judge without the termination being set aside. The ground of
 G     continuity was not sustainable for the simple reason that unless the order
       of termination is set aside. As a matter of first principle, continuity cannot
       be granted. Continuity is granted when the order of termination is set
       aside to ensure there is no hiatus in service.

 H
      THE DEPOT MANAGER & ORS. v. SRI S. KRISHNA                               1267
                   [M. R. SHAH, J.]

        8. There is another reason why the judgment of the High Court          A
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
                                                                               B
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.
      9. We find a considerable degree of merit in the submission of           C
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.
      10. For the above reason, we allow the present appeal and                D
accordingly set aside the impugned judgment and order dated 24.07.2013
in Writ Appeal No.1344 of 2013 as well as the judgment and order passed
by learned Single Judge in Writ Petition No.5632 of 2012. No costs.

Kalpana K. Tripathy                                          Appeal allowed.   E




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