Allowed

Babu, S/o.Ibrahim v. The Vice Chairman and Managing Director

Telangana HC23 Jun 2014WP/7818/2014

Case brief

AI extract

What is this about?

This common order allows multiple writ petitions filed by contract drivers and conductors seeking continuity of service following reinstatement after disciplinary proceedings. The Court held, relying on affirmed prior judgments, that such employees are entitled to the benefit of counting their past tenure for regularization purposes while ensuring no seniority rights of other workmen are disturbed

What did the court decide?

The writ petitions are allowed; the petitioner is entitled to continuity of service counted for regularization without monetary benefits.

Babu, S/o.Ibrahim Vs The Vice Chairman and… — Pension and Retirement Benefits | Telangana HC (2014)

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HON’BLE SRI JUSTICE DAMA SESHADRI NAIDU

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WRIT PETITION Nos.7003 of 2014, 36581, 37405, 37828, 38302, 40514 and 40601 of 2012, 4117, 11210, 12565, 13579, 13925, 20250, 27556, 31014 and 32997 of 2013, 2647, 2738, 2802, 3260, 3412, 3748, 3813, 4373, 4586 and 7001 of 2014, 5345, 9239, 11508, 29746, 29747, 33403, 33569, 33766 and 34291 of 2013, 36698, 38126 and 38669 of 2012, 8326, 7008, 7009, 7011, 7012, 7014, 7016,7027, 7799, 7800, 7803,7805, 7806, 7807, 7808, 7809, 7812, 7813, 7814, 7815, 7816, 7817, 7818, 7821, 7851, 8035, 8038, 8049, 8050, 8102, 8106, 8108, 8116, 8134, 8144, 9091, 9850, 10015, 11013, 11117, 11118, 11131, 11134, 11135, 11286, 11452, 11541, 12761, 12775, 12807, 12885, 15193, 15791, 15814, 15824 and 15920 of 2014.

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COMMON ORDER:

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A batch of writ petitions has come to be filed by various contract drivers and contract conductors working in the respondent Corporation. Though they have been engaged by the Corporation on a contract basis on various dates and though they have been subjected to disciplinary proceedings independently for various alleged instances of misconduct, a common theme runs through the batch of writ petitions. Aggrieved by the orders of termination from service, when the contract workmen laid challenge against those orders, in course of time, at further stages quasi-judicial adjudication of the orders of the Disciplinary Authority, all of them have been reinstated into service either by the appellate authority or by the revisional authority, as the case may be.

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The common grievance of all the writ petitioners is that, despite their reinstatement into service, since the said reinstatement was yet again contractual in nature, they lost all their previous service. As a result, they could not have their regularization on a par with the other workmen of their respective batches of recruitment. Save certain superficial factual differences, in all the matters the issue is the same, involving similarly placed petitioner-workmen and the same respondent Corporation. Accordingly, all the matters are being disposed of through this Common Order.

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For the purpose of felicity of reference and ease of adjudication,

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the facts in W.P.No.7003 of 2014 are taken as the basis for the discussion of the issues that have arisen in this batch of writ petitions.

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The facts in brief are that the petitioner joined the service of the respondent Corporation on 18.09.2009 having been put through the regular process of selection, in pursuance of notification issued by the respondent corporation. The petitioner is presently working at Miyapur-II bus depot, Hyderabad.

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The petitioner absented himself from duty between 24.06.2010 and 26.06.2010, evidently, without prior permission of the authorities. Treating this unauthorized absence for three (03) days as a major misconduct, the respondent Corporation subjected the petitioner to disciplinary proceedings. Though initially a notice was given to the petitioner, not satisfied with the explanation submitted by him, the respondent Corporation proceeded against the petitioner in a domestic enquiry, said to be held ex parte. Eventually, the proceedings ended in the termination of the petitioner’s services through order dated 10.02.2011. The petitioner, aggrieved by the orders of the Disciplinary Authority, preferred an intra-departmental appeal. The said appellate authority eventually, through order dated 16.05.2011, concurred with the findings of the Disciplinary Authority; yet taking a sympathetic view, he directed re-engagement of the petitioner as a fresh contract driver. Pursuant to the orders dated 16.05.2011 passed by the appellate authority, the petitioner joined the service of the respondent Corporation as a fresh driver on a contract basis, once again.

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While continuing in service, having felt aggrieved that the appellate authority has not given a direction to take into account the petitioner’s past service, ventilating a grievance that he could not have his services regularized on a par with other workmen of his batch, the petitioner has approached this Court by filing the present writ petition.

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To appreciate the rival submissions, it pays to extract the relief sought by the petitioner in the writ petition:

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“For all the reasons stated above it is prayed that this Hon’ble Court may be pleased to issue a writ or order or direction more particularly one in the nature of Writ or Mandamus declaring that the action of the respondent No.2 in not ordering re-engagement with continuity of service of the petitioner as contract driver is bad, arbitrary, illegal, unjust, unreasonable as the termination of the petitioner is against to procedure and violation of respondent corporation circulars, and consequently direct the respondents to treat the 2^nd respondent proceedings, dated 16.05.2011, as reinstatement of the petitioner as driver with continuity of service, attendant benefits and with all consequential service benefits including regularization and pass such other order or orders”.

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In all the writ petitions similar, if not the same, relief is sought. On behalf of the petitioners, initially Sri Venkateswara Rao, the learned counsel in a substantial number writ petitions, has lead the arguments. They have been adopted by the other learned counsel for the petitioners, with minor modifications on factual front, though.

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In the above factual back drop, the learned counsel for the petitioner has strenuously contended that the entire disciplinary proceedings held against the petitioner were ex parte and no opportunity was given to him at any stage to defend himself. He has further submitted that the length of absence was minimal, to wit, three days, and as such, the initial order of punishment by way of termination of services and also the subsequent denial of past service, despite re-engagement as a fresh driver, thus wiping out the entire past service, are shockingly disproportionate to the alleged misconduct said to have been proved against the petitioner.

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Placing heavy reliance on the Common Order, dated 29.02.2012, rendered in W.P.No.2786 of 2012 and batch, the learned counsel has submitted that in the said batch, comprising cases of ex parte enquiry and also cases of proper enquiry, a learned Single Judge of this Court allowed the batch through a Common Order directing the respondent Corporation to provide the benefit of continuity of service to the petitioners therein. To bolster

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his submissions, the learned counsel has drawn the attention of this Court to direction No.6 in the said common order, which specifically mentions that in the cases where no enquiry was conducted, the respondent Corporation shall be free to conduct enquiry as per law. Thus, according to the learned counsel, though the rest of the directions applied to all the petitioners therein, direction No.6 has been exclusively applied to the petitioners against whom punishment was imposed without any enquiry.

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The learned counsel has also drawn the attention of this Court to a circular No.PD-05/09, dated 23.02.2009, issued by the respondent Corporation. Making a reference to the said circular, the learned counsel has submitted that prior to the issuance of the said circular, concerning the contract employees no enquiry was contemplated. In the face of the said circular, though the respondents have subsequently went through the motions of conducting a departmental enquiry, it was, in the submission of the learned counsel, only an eye wash so as to show that the Corporation subjected all the delinquent workmen to some form of enquiry, with a view to asserting that the Corporation had followed the principles of natural justice.

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The learned counsel has also brought to the notice of this Court that the Common Order dated 29.02.2012 of the learned Single Judge was affirmed by a learned Division Bench of this Court in W.A.No.1665 of 2013 and batch. Eventually the learned counsel has urged this court to apply the Common Order dated 29.02.2012 of the learned Single Judge, as has been affirmed by the learned Division Bench through a common Judgement, dated 25.04.2013, and direct the Corporation to extend the benefit of continuity of service to the petitioners.

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The learned counsel has laid stress on the aspect that both the learned Single Judge in the Common Order and later the learned Division Bench in the Common Judgment took care of the aspect of possible disturbance of seniority of the other workmen, on account

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of providing benefit of continuity of service to the petitioners. According to the learned counsel, it was specifically observed by the learned Single Judge, as was affirmed by the learned Division Bench, that the continuity of service granted to the employees should be without any monetary benefits and should be counted only for the purpose of regularization at a future date. He has further submitted that it has been made explicit that the continuity of service of the petitioners shall not be allowed to affect the seniority or other benefits of regularly working employees.

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The learned counsel for the petitioner has further stated that though this Court in the common order dated 29.02.2012 made it explicit that the continuity of service is without any monetary benefit, in most of the cases, the Corporation was generous enough to extend even that benefit to the petitioners in those writ petitions. Having no conflict of interest, Sri S. M. Subhan, Sri Govindarajulu and other learned counsel for the petitioners, have adopted the same submissions, with their own additions, which are not required to be adverted to.

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Per contra, the learned Standing Counsel for the respondent Corporation have made very elaborate submissions countering each and every claim raised by the learned counsel for the petitioners. The submissions of all the learned Standing Counsel for the respondent Corporation have been compendiously considered, given the unity of interest.

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Making comprehensive submissions, comprehensively covering all the writ petitions, the learned Standing Counsel have primarily submitted that the common order dated 29.02.2012 has been confined to the cases where no enquiry was conducted. In the present batch of writ petitions, however, enquiry has been conducted in almost all the cases. As a matter of preliminary objection, the learned Standing Counsel have also stated that any direction from this Court to provide continuity of service to the petitioners would affect the career prospects of other workmen, who

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have been working on contract basis and who have never been subjected to any form of disciplinary proceedings. In the absence of any of them before this Court as respondents, no efficacious disposal could take place and accordingly the writ petitions are bad for non-joinder of necessary parties.

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The learned Standing Counsel have also stated that, in some cases, serious allegations of cash and ticket irregularities are involved. According to them, all the petitioners have been afforded every opportunity to participate in the enquiry, but some of them have not chosen to do so. Further, those explanations that had been submitted by some of the delinquents were taken into account and only on appreciation of the entire material on record, eventually, the disciplinary authority chose to impose the punishment of termination of service, which later came to be modified by the appellate authority or revisional authority to that of fresh engagement, without continuity of service.

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The learned Standing Counsel have also stated that there is no justification on the part of the learned counsel for the petitioners to harp on the issue of the judgment rendered by the learned Single Judgement in W.P.No.4074 of 2012 and batch. According to the learned Standing Counsel, in all those cases, the factual matrix is entirely different. In the alternative, the learned Standing Counsel have also submitted that there is a categorical observation in the said judgment that the regularisation shall be only at a future date. As such, the petitioners cannot take any advantage of it for the retroactive confirmation of their services, which has not been provided for in the judgment relied on by the petitioners.

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The learned Standing Counsel have also brought to the notice of this Court that the second condition laid down in the judgment in reference is that any conformation of the workmen on re-engagement shall not affect the seniority of other regular workmen. Expatiating on the said issue, the learned Standing Counsel have stated that if any direction is given in favour of the petitioners at this stage, it will have the potential of affecting the

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seniority of other persons who have not been impleaded in the writ petition. Accordingly, the learned Standing Counsel have urged the Court to dismiss the entire batch of writ petitions.

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Heard the learned counsel for the petitioners and the learned Standing Counsel for the respondent Corporation, apart from perusing the record.

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Indeed, the issue that has been raised in the present Writ Petition has come up and has been coming up before this Court quite often. From the record, it is evident that in the past, a batch of Writ Petitions was disposed of by a learned Single Judge initially through a judgment dated 01.03.2012 in W.P.No.4074 of 2012. Later other batches were disposed of based on the said judgment dated 01.03.2012. It is further evident from the record that batches of Writ Appeals came to be filed questioning the judgment dated 01.03.2012 and those were also subsequently dismissed. Invariably, all those Writ Appeals ended in failure. Thus, finality has been imparted to the judgment of the learned Single Judge in reference. Or, differently put, by way of merger, the judgment, dt.25.04.2013 of the learned Division Bench in W.A.No.641 of 2013 and the batch has come to hold the field presently.

¶31

Now, today, the learned counsel for the petitioners have also placed on record the judgment of the Supreme Court dated 25.07.2013 in S.L.P. (Civil) No.23290 of 2013, whereby the Supreme Court dismissed the S.L.P filed questioning the judgment dated 25.04.2013 passed by a learned Division Bench of this Court in W.A.No.641 of 2013, which arose out of one of the batch Writ Petitions. Under those circumstances, the learned counsel for the petitioners have strenuously contended that since the issue has attained finality, this Court may safely conclude that the guidelines given in the judgment dated 01.03.2012 shall squarely apply to the petitioners’ cases as well.

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Contradicting the said statement, the learned Standing Counsel has, however, stated that there have been many batches of

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Writ Appeals before this Court and S.L.Ps before the Supreme Court, and that the order in reference in S.L.P.No.23290 of 2013 is one single instance. As such, it cannot be stated that the matter, as per the learned Standing Counsel, has entirely attained finality and that it does not brook any interference.

¶34

Concerning the S.L.P. in question, it may be seen that it was filed by the respondent Corporation against the judgment dated 25.04.2013 in W.A.No.641 of 2013. The said Writ Appeal was disposed of by a learned Division Bench of this Court through a Common Judgment involving other Writ Appeals as well. A perusal of the same amply reveals that the ratio laid down by the learned Single Judge has been entirely upheld by the learned Division Bench, thereby dismissing the Writ Appeals.

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To extend the benefit of continuity of service to the petitioners in WP No.2786 of 2012 and batch, the learned Single Judge in the judgement, dt.29.02.2012, laid down the following parameters:

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(1) “In cases where the appellate/revisional authority has directed re-engagement of the contract employees as fresh employees, such employees shall be entitled to benefit of continuity of service from the date of termination till the date of re-engagement, except for the period during which they were absent, and the said continuity of service granted to the employees shall be without any monetary benefit and shall be counted only for the purpose of regularization at a future date.

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(1)

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(2) The continuity of service so ordered in para shall not, however, be counted for the purpose of seniority and shall not be allowed to affect the seniority of regularly working employees or for other benefits, but shall be counted only for the purpose of considering their cases for regularization.

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(3) There are also cases where the orders oftermination are challenged, either before the appellate/revisional authorities or before this Court, after six or seven years of date of termination. In all such cases the benefit of continuity of service without any monetary benefit and re-engagement so ordered in para (1) shall be available to only to such of those employees who have approached the appellate/revisional authorities or this Court within three years from the date of termination.

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(3)

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(4) There are also cases where the orders of termination are challenged, either before the appellate/revisional authorities or before this Court, after six or seven years of date of

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termination. In all such cases the benefit of continuity of service without any monetary benefit and re-engagement so ordered in para (1) shall be available to only to such of those employees who have approached the appellate/revisional authorities or this Court within three years from the date of termination.

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(4)

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(5) In cases where contract employees have preferred appeals/revisions, but no orders have been passed therein, the appellate/revisional authorities shall entertain and dispose of those appeals/revisions in the light of the directions referred to above, preferably on or before 31^st March, 2012.

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(6) In cases where no enquiry was conducted, the respondent-Corporation shall be free to conduct enquiry as per law into the allegations of unauthorized absence of its employees from duty or other allegations of misconduct.”

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(6)

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It is also necessary to address the specific contention raised by the learned Standing Counsel that as per the above guidelines 29.02.2012 in W.P.No.2786 of 2012 and batch, the benefit is only prospective but not retrospective. In other words, the regularisation shall be given effect on a future date, but not on any date anterior to the date of the order or judgement.

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I am afraid, a holistic reading of the conditions or guidelines (1) and (2) does not indicate that any issue of prospective or retrospective application of the principle is involved. It has simply been stated that as and when a person is entitled to regularization, after taking into account his past service, the regularisation shall be effected by ensuring that no other regular workmen is affected thereby. In my considered view, both conditions 1 and 2 are to be read conjointly but not disjointly.

¶49

At this juncture, we may examine the plea of the learned Standing Counsel for the respondent Corporation that in the earlier writ petitions the issue was absenteeism, and that serious charges, such as cash and ticket irregularities were not involved. But, the record reveals otherwise.

¶50

It can be seen that W.P.No.19003 of 2012 is one of the Writ Petitions having factual similarity to some of the matters presently under consideration. In the said Writ Petition as well, the petitioner

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therein was charged with the misconduct of cash and ticket irregularities. On reinstatement, complaining denial of continuity of service, the petitioner therein approached this Court. At the Bar, the learned Standing Counsel advanced similar arguments as have done today. In fact, all those contentions have been repelled by a learned Single Judge of this Court in judgment dated 26.06.2012, wherein it has been observed:

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“Though the learned standing counsel for the APSRTC seeks to draw a distinction between this case and the batch of cases on the ground that the APSRTC conducted a full-fledged enquiry in the matter, the said submission may not carry weight, inasmuch as the said aspect was also considered while passing a comprehensive order in the batch of cases. Though the APSRTC did hold an enquiry in some of the cases in the batch, the learned Judge found that the enquiry was not in keeping with the principles of natural justice. Further, it may be noticed that some of these contract conductors and drivers who were accused of cash & ticket irregularities and rash & negligent driving respectively have been re-engaged afresh by the APSRTC itself. Having granted this largesse to these contract employees, which it would normally deny to its regular conductors and drivers, it is indeed incomprehensible as to why the APSRTC is aggrieved by the benefit of continuity of service extended to these contract employees and that too, for the limited purpose of their regularization. Denial of monetary benefits and continuity of service for other purposes would be sufficient punishment to these contract employees. This Court is therefore, not impressed with the submission of the learned counsel that this case should be singled out for a different treatment.”

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In fact, the judgment in W.P.No.19003 of 2012 was assailed in W.A.No.641 of 2013. Later, about 34 Writ Appeals, including an appeal against the order in W.P.No.19003 of 2012, were disposed of by a learned Division Bench of this Court through a Common Judgment, dated 25.04.2013. At the cost of repetition, it can be stated that, apart from approving the guidelines issued by the learned Single Judge in the judgement dated 29.02.2012 in W.P.No.2786 of 2012 and batch, the learned Division Bench has also accepted the line of reasoning found in W.P.No.19003 of 2012. In fact, one of these Writ Appeals was the subject matter of S.L.P (Civil) No.23290 of 2013, which was dismissed on 25.07.2013.

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In a conspectus, it can be stated that the contentions that have been raised by the learned Standing Counsel concerning the cash and ticket irregularities and also the contentions regarding providing an opportunity to the petitioners to contest their claim in the disciplinary proceedings stood conclusively answered by the learned Single Judge. In fact, the decision of the learned Single Judge has stood affirmed by the learned Division Bench of this Court, and refused to be interfered with by the Hon’ble Supreme Court.

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Accordingly, it does not call for any fresh adjudication on the issue once again. Suffice it to say that this Court has concurrently held at both stages that the contract employees, who have been reengaged, are entitled to have their past service counted for the limited purpose of regularisation. The same cannot be denied to the petitioners so long as they are similarly placed.

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It is required to be stated that the petitioners are entitled to have their past service, in the manner of continuity of service, considered for the limited purpose of regularisation, and at the same time, the authorities shall ensure that the petitioners’ regularisation does not affect the seniority or other benefits of any other workmen, who are not juniors to them.

¶57

With the above observations, strictly in terms of the Common Order, dt.29.02.2012 in WP No.2786 of 2012 and batch, as has been affirmed in the Common Judgment, dt.25.04.2013 in WA No.1665 of 2013 and batch, the writ petitions stand allowed. There shall be no order as to costs. As a sequel, the miscellaneous petitions, if any, pending in these writ petitions, shall stand disposed of as infructuous.

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________________________ DAMA SESHADRI NAIDU, J

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Date: 23.06.2014

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eha

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HON’BLE SRI JUSTICE DAMA SESHADRI NAIDU

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Dt.23-06-2014

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eha

Babu, S/o.Ibrahim v. The Vice Chairman and Managing Director

Case brief

What is this about?

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Babu, S/o.Ibrahim v. The Vice Chairman and Managing Director

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