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Synopsis

The Supreme Court has on August 28, 2024 said the order of termination of services of an employee, even if on contractual basis, cannot be passed on account of alleged misconduct without following the principles of natural justice. 

A bench of Justices PS Narasimha and Pankaj Mithal accordingly set aside termination of Brijesh Kumar made on January 30, 2016 on the basis of some report which was probably not supplied to him and even no show cause notice apparently was issued to him.

"The services of the respondent have been determined solely on the ground of misconduct as alleged but without holding any regular inquiry or affording any opportunity of hearing to him," the bench said.

The Uttar Pradesh State Road Transport Corporation had filed an appeal against the Allahabad High Court's division bench order which allowed a writ petition by the respondent and set aside his termination.

The respondent's father Bal Krishna, who was a regular conductor working with the UPSRTC, died on October 18, 2003 while in service. After attaining the age of majority in 2008 and having completed his qualification, he applied for compassionate appointment under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974.

In 2012, the UPSRTC decided to appoint him on preferential basis as a contract conductor. After completing the formalities, he joined as contract conductor. During his service, he was found guilty of carrying three passengers without ticket on two occasions and on one occasion was found carrying 500 kg of extra luggage without booking. His services were thus terminated on the ground of misconduct.

On his plea, the High Court concurrently held that the appointment of the respondent was on compassionate basis and as such he was a permanent employee whose services could not have been terminated on account of any misconduct without holding a disciplinary inquiry. 

After hearing the counsel from both the sides, the bench said there is no dispute to the legal proposition that any appointment made on compassionate basis is in the nature of a permanent appointment and is not liable to be treated as temporary or contractual. 

However, the court noted, the respondent was never offered any compassionate appointment. In his case, instead of compassionate appointment under the Dying in Harness Rules, he was extended the benefit of the 2012 policy, which envisaged to offer preferential treatment in the matter of appointment on contractual basis to the dependents of the deceased employees. 

"It is crystal clear that the respondent was appointed as a contract conductor on preferential basis being the son of the deceased employee. He was not appointed on compassionate basis. There is no reference of any compassionate appointment in any document," the top court noted.

The mere fact that the respondent was appointed on contract basis pursuant to the application for compassionate appointment would not make his appointment to be one under Dying in Harness Rules, the bench opined.

"The respondent had accepted the offer of contractual employment with his open eyes and had even signed the agreement to that effect which is not disputed. Thus, his appointment was simply on contract basis and cannot be treated as permanent," the bench held.

The court declared the single judge and the division bench manifestly erred in law in holding that the respondent was appointed under Dying in Harness Rules. 

The High Court, erroneously on complete misreading of the material on record, held that the appointment of the respondent to be on compassionate basis and that he is liable to be treated as a permanent employee. The High Court has erred factually in treating the appointment of the respondent under the Dying in Harness Rules, though, it is not so, the bench added.

However, the court held the order of termination of his services, even if on contractual basis, has been passed on account of alleged misconduct without following the principles of natural justice. The termination order is apparently stigmatic in nature, it added.

The court thus held terminating the services of the respondent is bad in law and cannot be sustained. 

"It has rightly been set aside though on a different ground that the respondent is a permanent employee having been appointed on compassionate basis. The appointment of the respondent, in fact, is a contractual appointment entitling him to continue as such in service and to claim regularisation if so advised in accordance with law," the bench said.

The court set aside the HC's judgments to the extent they held the appointment to be on compassionate basis under the Dying in Harness Rules and that of a permanent nature but maintained the order quashing of the termination.