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 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]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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