Labour Laws: Continuity of service – Benefit of – On facts, respondent appointed as driver on contract – Allegation of misconduct – Disciplinary enquiry against workman – Termination from service – However in departmental review, workman granted fresh appointment/re-engagement – Writ petition by workman seeking continuity of service from date of the earlier termination until reengagement – Allowed by the Single Judge of the High Court relying on the order in earlier case – Upheld by the Division Bench – On appeal, held: Continuity can be granted when an order of termination is set aside, to ensure that there is no hiatus in service – On facts, workman did not choose to assail either the termination of his services following the enquiry or the fresh appointment – Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was challenged, the grant of continuity of service by the High Court was misconceived – Furthermore, the Single Judge as well as the Division Bench lost sight of the facts of each individual case.
Disposing of the appeal, the Court
HELD: 1.1 The order of the Single Judge was exclusively based on the earlier decision dated 29.02.2012. The judgment of the Single Judge indicates that the earlier case also dealt with persons who were working as contract employees who were appointed after a regular selection. In some cases, termination orders were passed without an enquiry on allegations of misconduct while in other cases, an enquiry was conducted. [Para 7][1260-E-F]
1.2 In the instant case, 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. Such a direction could not have been issued by the Single Judge without the termination being put into question. 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 principle, continuity can be granted when an order of termination is set aside, to ensure that there is no hiatus in service. [Para 8, 9][1261-F-H; 1262-A]
1.3 The appellant 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 10] [1262-A-B]
1.4 The earlier order of the Single Judge 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 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. There is a considerable degree of merit in the submission that in deciding the entire batch of cases by a common order, the Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case. [Para 11, 12][1262-C-F]
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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