APSRTC & ORS. versus G. KONDAL RAO

Citation: [2018] 14 S.C.R. 316 · Decided: 07-12-2018 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Leave granted

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Judgment (excerpt)

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316                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
APSRTC & ORS.
v.
G. KONDAL RAO
(Civil Appeal No. 12243 of 2018)
DECEMBER 07, 2018
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Service Law – Termination – Re-engagement and continuity
in service – Respondent was appointed as a contract conductor
and was working with the appellant-corporation – He was subjected
to a departmental enquiry, after which he was terminated –
Departmental appeal and Review petition preferred by him were
rejected – Writ petition by the respondent – Single Judge of the
High Court considering the earlier decision dated 29.02.2012 in
Writ Petition No.2786 of 2012, disposed of the writ petition filed by
the respondent and directed the appellant to re-engage the
respondent 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 which he was absent – Same was upheld
by the Division Bench of the High Court – On appeal, held: Single
Judge of the High Court without having regard to the facts of the
case, mechanically issued directions exclusively relying on the earlier
decision dated 29.02.2012 in Writ Petition No.2786 of 2012 – Both
Single Judge and the Division Bench of the High Court erred in not
appreciating the facts of the instant case – In the instant case, the
workman was dismissed from service after the departmental enquiry
and when the charges of misconduct were proved, that was not the
case in Writ Petition No.2786 of 2012 – Furthermore, benefit of
continuity of service ordered by the Single Judge was not sustainable
unless the order of termination is set aside – Continuity is granted
when the order of termination is set aside to ensure there is no hiatus
in service – Thus, order of the Single Judge and the Division Bench
of the High Court set aside.
Allowing the appeal, the Court
HELD: 1. The Single Judge of the High Court without
having regard to the facts of the individual cases, mechanically
[2018] 14 S.C.R. 316
316
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317
issued the directions exclusively relying on the earlier decision
dated 29.02.2012 in Writ Petition No.2786 of 2012. However,
the Single Judge and the Division Bench of the High Court 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.  [Para 5][319-F-H]
2. The earlier order of the 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. [Para 6][320-A-B]
3. 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
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.
[Para 7][320-C]
4. 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
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. [Para 8][320-D-E]
APSRTC & ORS. v. G. KONDAL RAO
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318                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12243
of 2018
From the Judgment and Order dated 26.04.2013 of the High

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