Telangana High Court

Timmagari Naga Raju, S/O.Venkata ... vs The Apsrtc., Rep. By Its Vice Chairman ... on 7 December, 2023

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

       HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

            WRIT PETITION No. 38468 OF 2012

ORDER:

This Writ Petition is filed to declare the action of the

respondent Corporation in not regularizing petitioner's service

and non-paying salary and other service benefits on par with

regular conductors on the principle of 'equal pay for equal work'

is arbitrary. Consequently, a direction is sought to the

respondents to regularize petitioner's service with effect from the

date of his appointment as contract conductor and to pay salary

and all other service benefits of regular conductors to the

petitioner from the date of his initial appointment together with

arrears to till date with interest at 12% per annum.

2. Petitioner is stated to have been appointed as

contract conductor through regular process of selection on

29.01.2007. While so, on 02.07.2007, the 3rd respondent

terminated him on the ground of unauthorized absence without

issuing charge-sheet and without conducting domestic enquiry.

Aggrieved by the same, petitioner filed Writ Petition No. 1371 of

2011, by order dated 28.01.2011, the same was allowed in

terms of Writ Petition No. 5998 of 2010, dated 23.03.2009,

directing the Corporation to reinstate him into service with

liberty to hold enquiry and pass fresh orders as per law.

Pursuant to the above direction, the 2nd respondent issued

proceedings dated 09.05.2011 directing the 4th respondent to

take him into duty and accordingly, he reported for duty at the

4th respondent depot and since then he has been rendering

unblemished service.

Though he was designated as contract conductor,

duties and responsibilities discharged by him are equal to

duties of permanent conductors appointed by the respondents.

The procedure adopted in appointing regular / permanent

conductors and contract conductors is one and the same and

the work turned out by both of them also is one and the same.

When it comes to pay and allowances and other service

conditions, respondents are not giving D.A., H.R.A., and other

allowances on par with regular / permanent conductors.

Increments are also not added. The 1st respondent authorities

with a mala fide intention of depriving regular pay-scales and to

cause loss to contract conductors like him appear to have

resorted to appointment of contract conductors with a view to

gain wrongfully by way of ad hocism which is clear from the fact

that after three years or so, the 1st respondent authorities are

regularizing the services of contract conductors as per the

statutory settlement entered into by the 1st respondent with the

recognized trade unions.

It is stated that S.Sri Y. Anil Kumar, P.N. Reddy, D.

Poshetty, A.N. Rao, Sangameshwar, B.Chandrakala who were

appointed along with him and who were juniors as contract

conductors were given postings of regular conductor as per the

order dated 22.03.2010 of the 4th respondent. Another batch of

conductors namely K. Nagabhushanam and nine others, who

are juniors to him as contract conductors were given postings of

regular conductors as per the proceedings dated 30.04.2012 of

the 2nd respondent. The grievance of petitioner is that the 1st

respondent being the statutory body and instrumentality of the

State is expected to act fairly and reasonably and treat equally

the regular conductors and contract conductors as mandated in

Article 14 of the Constitution of India. According to him, since

his termination order was set aside by the Court as per the

order detailed above, he was deemed to be in service for all

purposes from the date of his termination till he was taken to

duty on 09.05.2011, hence, he is entitled to continuity of service

and back wages from the date of termination till the date of his

reinstatement with all consequential benefits which means that

this service gets counted for regularization as conductor. It is

stated that he submitted representation dated 05.12.2012

seeking regularization of his service, but, so far, no action has

been taken thereon, hence, he is constrained to approach this

Court.

3. In the counter-affidavit, it is stated that petitioner

was engaged as contract conductor by entering into a contract

in 2006 and joined the services at Sangareddy Depot on

23.02.2007. Having performed duties as Conductor on contract

basis for about five months, he remained absent unauthorisedly

from 18.06.2007 to 02.07.2007, hence, the 3rd respondent

invoking the clause of contract agreement terminated him from

service vide order dated 02.07.2007. After three years, he filed

Appeal before the 2nd respondent which was rejected vide order

dated 27.11.2010.

Aggrieved by the termination order, petitioner filed

Writ Petition No. 1371 of 2011 which was disposed of on

28.01.2011 in terms of order in Writ Petition No. 5998 of 2009

directing reinstatement of petitioner. Complying with the said

order, petitioner was re-engaged as contract conductor vide

office order dated 09.05.2011. It is stated that petitioner being a

contract employee governed by the terms and conditions of the

contract agreement, is not entitled to continuity of service. Since

petitioner was engaged as conductor on contract basis with

certain terms and conditions, his prayer for regularization and

payment of salary and all other service benefits on par with

regular employees is not maintainable. The Hon'ble Court while

allowing Writ Petition No. 1371 of 2011 directed for his

reinstatement, but there is no order to grant other benefits like

continuity of service.

It is stated that in similar circumstances, in Writ

Petition No. 2786 of 2012 and batch, vide order dated

29.02.2012, this Court passed the order as under:

" 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 termination. In all such cases, the benefit of continuity of service without any monetary benefit and reengagement 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. (4) In cases where appeals / revisions or writ petitions are filed after three years of the orders of termination, it is directed that such petitioner / s shall be considered for reengagement as fresh contact employee / s, subject to medical fitness and other formalities, but he / they shall not be entitled to continuity of past service as under para (1) above."

It is stated that in the present case, petitioner was

terminated from service on 02.07.2007 and he filed Appeal

before the 2nd respondent in 2010, after three years of

termination, therefore, he is not entitled to claim the benefit of

continuity of service and regularization from the date of his

initial appointment.

It is stated that as per the policy adopted by the

Corporation, the contract drivers who worked for a period of two

to three years without getting involved in any misconduct and

any break in service, get the benefit of regularization, limiting to

the sanctions given by the Government of Andhra Pradesh. If

the relief of continuity of service for the purposes of

regularisation is granted for all those employees whose services

were terminated for their involvement in misconduct, it erases

the difference between loyally-working employees and

delinquent. It is stated that issue of continuity of service to the

contract employees for the purpose of regularization is pending

before the Supreme Court wherein stay was granted. It is well-

settled law that writ jurisdiction is discretionary and discretion

should not ordinarily be exercised, if there is an alternative

remedy available, as per the law laid down by the Supreme

Court in Union of India (UOI) v. Dwaraka Prasad Tiwari

(2006) 10 SSC 388 and in Uttaranchal Forest Development

Corporation v. Jabar Singh {(2007) 2 SCC 112} and in

Transport and Dock Workers Union v. Mumbai Port Trust

{(2011) 2 SCC 575}. Being a workman, petitioner is having an

alternative remedy to challenge the impugned proceedings.

Further, it is stated that employees referred to by

the petitioner were working continuously from the date of initial

appointment without any interruption, whereas he worked for a

period of five months, remained absented unauthorisedly and

was terminated from service and as per the orders of this Court

he was reengaged as contract conductor after four years, hence,

he cannot compare his case with that of his batchmates.

Hence, claims the respondent Corporation to dismiss the Writ

Petition.

4. Learned counsel for petitioner Sri V. Narasimha

Goud relies on the judgment of the Hon'ble Supreme Court in

Grih Kalyan Kendra Workers' Union v. Union of India 1, Jai

Narain Vyas University, Jodhpur v. Mukesh Sharma 2 and

the order of this Court in Writ Petitioner No. 15735 of 2010,

dated 06.03.2014 to justify his contention that petitioner is

entitled to continuity of service and benefits notionally on

regularization from the date on which the similarly-situated

employees were regularized and 'equal pay for equal work' is to

AIR 1991 Supreme Court 1173

2023 Lab IC 383

be maintained. 'Reinstatement' means to return a person or

thing to its previous position or status; an order of

reinstatement puts a person back to the same position. Since

reinstatement was directed, petitioner shall be entitled to pay

and other allowances, on par with the other similarly-situated

employees, contends the learned counsel. In support thereof, he

places reliance on the judgment of the Hon'ble Supreme Court

in Central Bank of India v. Dragendra Singh Jadon 3

5. On the other hand, learned Standing Counsel for

the Corporation Sri A. Srinivas Reddy, while reiterating the

averments in the counter-affidavit, maintains that since

petitioner was unauthorisedly absent from duties, he cannot

claim continuity of service for the period for which he was out of

service, thereby he is not entitled to benefits on par with other

employees. He strongly places reliance on the judgments of the

Hon'ble Supreme Court in APSRTC v. K. Sathaiah 4, APSRTC

v. A.U.M. Rao 5 and the judgment of Division Bench of this

Court in Writ Appeal No. 183 of 2022, dated 15.03.2022.

6. The case of petitioner is that questioning his

termination order, he filed Writ Petition No. 1371 of 2011

AIR 2022 SC 3779

2020(2) SCC (L&S) 697

(2019) 4 SCC 663

wherein this Court observing that 'no enquiry was conducted

and termination so passed without conducting enquiry is non-

est, set aside the termination order and directed the Corporation

to reinstate him into service with liberty to respondents to hold an

enquiry'. Pursuant to the said order, petitioner was reinstated

into service vide proceedings dated 09.05.2011, which means,

he was deemed to be in service for all purposes from the date of

his termination till he was taken on duty.

In Dragendra Singh Jadon's case , the Hon'ble

Apex Court in paragraphs 18 to 22 held that........

" 18. What was in issue in the earlier writ petition being Writ Petition No. 3091 of 2009(S) was the legality of the award and other consequential benefits. The cause of action for Writ Petition No. 1571 of 2013 arose subsequently. The issue in the later writ petition was not whether the respondent was entitled to back wages for the period prior to the date of the award, which issue had been decided in the earlier writ petition, but the issue of fixation of pay and seniority upon reinstatement in service. The question in the second writ petition was, whether, for the purposes of seniority and fixation of pay, the respondent was to be treated as a newly appointed employee and that too with effect from 18-8-2012, when the award directing his reinstatement was dated 10-9-2008.

19. In our considered view, the learned Single Bench of the High Court rightly granted relief to the respondent. By the impugned judgment and order [Central Bank of India v. Dragendra Singh Jadon, 2017 SCC OnLine MP 2334] , the Division Bench of the High Court dismissed the appeal of the appellants and directed that the respondent would have to be treated in service from the date of removal till the date of actual reinstatement in service and would accordingly be entitled to seniority and the right to be considered for promotion, but would not be entitled to back wages.

20. We find no infirmity with the concurrent findings of the Single Bench [Dragendra Singh Jadon v. Central Bank of India, 2015 SCC OnLine MP 7738] and the Division Bench [Central Bank of India v. Dragendra Singh Jadon, 2017 SCC OnLine MP 2334] of the High Court. There is a difference between reappointment and reinstatement. Reinstatement means to return a person or thing to its previous position or status. An order of reinstatement puts a person back to the same position.

21. The Tribunal had granted the respondent, the relief of reinstatement. Considering that the respondent had not actually rendered service to the appellant Bank and that he had been earning in the intervening period, the Tribunal denied him back wages. The Tribunal and the High Court (both the Single Bench and the Division Bench) have in effect and substance found the termination of service of the respondent to be wrongful.

22. The appellant Bank cannot take advantage of its own wrong of wrongfully dismissing the respondent from service, to deny him the benefit of seniority, promotion and other benefits to which he would have been entitled, if he had attended to his duties.

In Jai Narain Vyas University, Jodhpur's case, it

has been held that......

"9. In view of the above and for the reasons stated above, the impugned common judgment and order passed by the Division Bench of the High Court and those of the learned Single Judge are hereby modified and it is ordered that the original writ petitioners shall be entitled to the actual consequential benefits on regularization for the period prior to three years of filing of the writ petitions only. However, they shall be entitled to continuity in service and benefits notionally on regularization, from the date on which the similarly situated employees were regularized

In Grih Kalyan Kendra Worker's Union case, in

para 6 and 7, it has been held as under:

" 6. Equal pay for equal work is not expressly declared by the Constitution as a fundamental right but in view of the Directive Principles of State Policy as contained in Article 39(d) of the Constitution "Equal pay for equal work" has assumed the status of fundamental right in service jurisprudence having regard to the constitutional mandate of equality in Articles 14 and 16 of the Constitution. Equal pay for equal work and providing security for service by regularising casual employment within a reasonable period has been accepted by this Court as a constitutional goal to our socialistic pattern. It has ceased to be a judge made law as it is the part of the constitutional philosophy which ensures a welfare socialistic pattern of a State providing equal opportunity to all and equal pay for equal work for similarly placed employees of the State. This Court has zealously enforced the fundamental right of equal pay for equal work in effectuating the constitutional goal of equality and social justice in a number of decisions. See: Randhir Singh v. Union of India [(1982) 1 SCC 618 : 1982 SCC (L&S) 119] ; Daily Rated Casual Labour Employed under P&T Department v. Union of India [(1988) 1 SCC 122 : 1988 SCC (L&S) 138 : (1987) 5 ATC 228] ; Dhirendra Chamoli v. State of U.P. [(1986) 1 SCC 637 : 1986 SCC (L&S) 187] ; Surinder Singh v. Engineer-in-Chief, CPWD [(1986) 1 SCC 639 : 1986 SCC (L&S) 189] ; R.D. Gupta v. Lt. Governor, Delhi

Administration [(1987) 4 SCC 505 : 1987 SCC (L&S) 470 : (1987) 5 ATC 65] ; Bhagwan Dass v. State of Haryana [(1987) 4 SCC 634 : 1988 SCC (L&S) 24 : (1987) 5 ATC 136] ; Jaipal v. State of Haryana [(1988) 3 SCC 354 : 1988 SCC (L&S) 785 : (1988) 7 ATC 771] ; Dharwad District P.W.D. Literate Daily Wage Employees Association v. State of Karnataka [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902] . Therefore, the principle of equal pay for equal work even in an establishment which is an instrumentality of a State is applicable to its full vigour.

7. The question then arises whether the respondents have practised discrimination in denying the employees of the Kendra pay which the Union of India has been paying to other similarly placed employees doing the same or similar work. This question is of primary importance which requires investigation of facts. Unless, it is demonstrated that the employees of the Grih Kalyan Kendra are discriminated in matters relating to pay and other emoluments with the other similarly placed employees, the principle of equal pay for equal work cannot be applied. While considering this question, it is not necessary to find out similarity by mathematics formula but there must be a reasonable similarity in the nature of work, performance of duties, the qualification and the quality of work performed by them. It is permissible to have classification in services based on hierarchy of posts, pay scale, value of work and responsibility and experience. The classification must, however, have a reasonable relation to the object sought to be achieved. In Federation of All India Customs and Central Excise Stenographers v. Union of India [(1988) 3 SCC 91 : 1988 SCC (L&S) 673 : (1988) 7 ATC 591] , Saybasachi Mukharji, J. (as he then was) observed: (SCC p. 100, para 7)

"...there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right."

Elaborating the aforesaid observation the learned Judge further observed thus: (SCC pp. 104-05, para 11)

"The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less -- it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the court unless it is demonstrated that either it is irrational or based on no basis or arrived mala fide either in law or in fact."

7. Though learned counsel for petitioner submits that

in view of the above precedent set by the Hon'ble Supreme

Court, his client is entitled to all consequential reliefs, nowhere

in the order dated 28.01.2011 in Writ Petition No. 1371 of 2011,

it is stated that he is entitled to other benefits like continuity of

service, etcetera. In view of the same, this Court cannot lose

sight of the submission made by the Corporation that petitioner

joined service on 23.02.2007 and after five months, he remained

absent unauthorisedly from 18.06.2007 to 02.07.2007, hence,

he was terminated from service and he is not entitled to the

benefits on par with other employees. In this regard, the

judgments relied on by the learned Standing Counsel for

Corporation gains significance. In APSRTC v. K. Sathaiah and

APSRTC v. A.U.M. Rao's case (supra), which judgments of the

Hon'ble Supreme Court were followed by the Division Bench of

this Court in Writ Appeal No. 183 of 2022, wherein it has been

held as under:

" 9. Such a direction could not have been issued by the learned Single Judge without the termination being put into question. 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.

10. 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.

11. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 (Ch.S. Kumar v. APSRTC, 2012 SCC Online AP 1142) 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.

12. We find a considerable degree of merit in the submission of the learned Senior Counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case.

13. For the above reasons, we allow this appeal and accordingly, set aside the impugned judgment and order dated 25.4.2013 (APSRTC v. A.V.M. Rao, 2013 SCC Online AP 1049) of the Division Bench. The seniority of the respondent workman shall be counted with effect from the date of his fresh appointment in the service of the Corporation.