APSRTC & ORS. versus SRI K. SATHAIAH

Citation: [2018] 13 S.C.R. 275 · Decided: 07-12-2018 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Leave Granted & Allowed

Judgment (excerpt)

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 APSRTC & ORS.
v.
SRI K. SATHAIAH
(Civil Appeal No. 12242 of 2018)
DECEMBER 07, 2018
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Labour Laws:
Continuity of service –  Grant of – Propriety – Termination of
contract employee after holding disciplinary proceeding – In
departmental review, he was re-engaged – Writ petition by employee
seeking continuity of service with consequential benefits –  Single
Judge of High Court directed continuity of service from the date of
termination till the date of re-employment – Order of Single Judge
upheld by Division Bench of High Court – On appeal, held:
Continuity of service can be granted only when order of termination
is set aside, to ensure that there is no hiatus in service – In absence
of challenge to termination order and to fresh appointment, grant
of continuity was not sustainable – Seniority of the workman shall
be counted w.e.f. the date of his fresh appointment.
Allowing the appeal, the Court
HELD : 1. The workman did not choose to assail either
the termination of his services following the enquiry or the fresh
appointment. All that was sought was that he should have the
benefit of continuity of service from the date of the earlier
termination until re-engagement. The grant of continuity was not
sustainable for the simple reason that unless the order of
termination and of the fresh appointment were challenged and
adjudicated upon, seniority would necessarily have to count with
effect from the date of the fresh appointment.  As a matter of first
principle, continuity can be granted when an order of termination
is set aside, to ensure that there is no hiatus in service.
[Paras 8 and 9][279-E-G]
2. 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
[2018] 13  S.C.R. 275
275
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SUPREME COURT REPORTS
[2018] 13  S.C.R.
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. The seniority of the
respondent workman shall be counted with effect from the date
of his fresh appointment in the service of the Corporation.
[Paras 10 and 14][279-G-H; 280-A-B]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12242
of 2018.
From the Judgment and Order dated 11.06.2013 of the High Court
of  Judicature of Andhra Pradesh at Hyderabad in Writ Appeal No. 864
of 2013.
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
M. R. SHAH, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 11.06.2013 passed by the Division Bench of the High
Court of Judicature of Andhra Pradesh at Hyderabad in Writ Appeal
No.864 of 2013 by which the Division Bench dismissed the same appeal
and confirmed judgment passed by the learned Single Judge dated
18.07.2012 in Writ Petition No.17541 of 2012 directing the appellants
herein–original respondents to extend the benefit of continuity of service
to the workman from the date of termination till the date of re-engagement
except for the period when he was absent and that would be without
monetary benefit and that it would be granted only for the purpose of
regularization at a later date, the original respondents- Corporation-
employer have preferred the present appeal.
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3. The facts leading to the present appeal are as under :
a.
That the respondent herein-original writ petitioner was
appointed as a contract driver and working with the appellant
corporation.
b.
That a departmental enquiry was initiated against him for
remaining on unauthorized absence.
c.
Following the report of the Enquiry Officer, his services came
to be terminated.
d.
After the dismissal of the departmental appeal, and in the
course of the departmental review, the Divisional Manager
issued an order for the re

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