THE DEPOT MANAGERversusSRI R. K. REDDY

1236                SUPREME[2018]
                            COURT 14 REPORTS
                                     S.C.R.1236               [2018] 14 S.C.R.


 A                           THE DEPOT MANAGER
                                          v.
                                 SRI R. K. REDDY
                          (Civil Appeal No. 12245 of 2018)
 B                             DECEMBER 07, 2018
               [DR. DHANANJAYA Y CHANDRACHUD AND
                          M. R. SHAH, JJ.]
              Labour Laws: Termination of service – Re-engagement and
       continuity of service – On facts, termination of employee on contract,
 C     after charges of misconduct stood proved in a departmental enquiry
       – Said order upheld in departmental appeal, appeal before regional
       manager and the labour court – In writ petition by workman, the
       Single Judge of the High Court relying on the order in earlier case
       directed the employer-appellants to re-engage the employee in
       service and extend the benefit of continuity of service from date of
 D
       the earlier termination until re-engagement – Said order upheld by
       the Division Bench – On appeal, held: Single Judge without having
       regard to the facts of the individual cases, mechanically issued the
       directions exclusively relying on the earlier decision – Single Judge
       and the Division Bench materially erred in not appreciating that
 E     the facts in the instant case and the decision relied upon were different
       – Even otherwise such a direction could not be issued by the Single
       Judge without the termination being set aside – Continuity can be
       granted when the order of termination is set aside to ensure there is
       no hiatus in service – Thus, the order passed by the Single Judge as
       well as the Division Bench set aside.
 F
             Allowing the appeal, the Court
             HELD: 1.1 The Single Judge without having regard to the
       facts of the individual cases, mechanically issued the directions
       exclusively relying on the earlier decision. The Single Judge and
       the Division Bench materially erred in not appreciating the facts
 G
       that in the instant case the workman was dismissed from service
       after holding the departmental enquiry and having all the charges
       of misconduct proved, that was not so in the decision relied upon.
       Even otherwise such a direction cannot be issued by the Single
       Judge without the termination being set aside. The ground of
 H     continuity was not sustainable for the simple reason that unless
                                      1236
          THE DEPOT MANAGER v. SRI R.K. REDDY                            1237


the order of termination is set aside, continuity cannot be granted.     A
Continuity can be granted when the order of termination is set
aside to ensure there is no hiatus in service. [Para 5, 7]
[1239-D-E; 1240-A]
      1.2 The appellant has recruited personnel like the instant
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]
[1240-A-C]
      1.3 There is considerable degree of merit in the submission
that in deciding the entire batch of cases by a common order, the        D
Single Judge as well as the Division Bench unfortunately lost
sight of the facts of each individual case. The judgment and order
passed by the Single Judge as well as the Division Bench is set
aside. [Para 9][1240-C-E]
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12245              E
of 2018.
      From the Judgment and Order dated 14.06.2013 of the High Court
of Judicature of Andhra Pradesh at Hyderabad in Writ Appeal No. 690
of 2013.
      Gourab Banerji, Sr. Adv., Sriharsha Peechara, Arjun Krishnan,
                                                                         F
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.
                                                                         G
      1. Leave granted.
      2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 14.06.2013 passed by the Division Bench of the High
Court of Judicature of Andhra Pradesh at Hyderabad in Writ Appeal
No.690 of 2013 the original respondents – corporation – employer has
preferred the present appeal.                                            H
1238          SUPREME COURT REPORTS                        [2018] 14 S.C.R.


 A     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.
       b. That he was subjected to departmental enquiry.
       c. That following the report of the Enquiry Officer, his service
 B        came to be terminated.
       d. That the departmental appeal also came to be rejected.
       e. Appeal before the Regional Manager also came to be rejected
          on merits.
 C     f.   That 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.77 of 2011.
       g. That thereafter the workman-original writ petitioner
 D        approached the High Court invoking jurisdiction of the High
          Court under Article 226 of the Constitution of India by filing
          Writ Petition No.34192 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 judgment of the learned Single Judge dated 29.02.2012
 E        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
 F        of the learned 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-engagement except for the period during
 G        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.

 H
           THE DEPOT MANAGER v. SRI R.K. REDDY                                   1239
                     [M. R. SHAH, J.]

       4. Mr. Gourab Banerji, learned Senior Counsel appearing on behalf         A
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
Judge has amicably and without proper application of the facts disposed
                                                                                 B
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
misconduct proved in a departmental enquiry. It is submitted that the            C
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
appellants herein and having considered the main judgment and order              D
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
in Writ Petition No.2786 of 2012. However, the learned Single Judge
and the Division Bench both have materially erred in not appreciating            E
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.
       6. We may also note that the earlier order of the learned Single          F
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
                                                                                 G
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
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   H
1240                SUPREME COURT REPORTS                      [2018] 14 S.C.R.


 A     be granted. Continuity can be granted when the order of termination is
       set aside to ensure there is no hiatus in service.
               8. 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
 B     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
       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
 C     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
       learned senior counsel appearing on behalf of the Corporation that in
       deciding the entire batch of cases by a common order, the learned Single
 D     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
       accordingly set aside the impugned judgment and order dated 14.06.2013
       in Writ Appeal No.690 of 2013 as well as the judgment and order passed
 E     by learned Single Judge in Writ Petition No.34192 of 2012. No costs.

       Nidhi Jain                                                   Appeal allowed.




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