THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.11719 OF 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:-
"....to issue a Writ Order or direction more particularly one in the nature of WRIT OF MANDAMUS, directing the respondents to reinstate the petitioner to the duty as Energy Assistant (Junior Lineman Grade- II) by declaring the memo No.EE/O/KDP/ADM/JAO/S2/D.No.520/20, dated 08.04.2020, issued by the Executive Engineer (Operations) APSPDCL, Kadapa, as illegal, arbitrary and violative of principles of natural justice and pass such other order."
2. The petitioner was appointed as Energy Assistant (Junior Lineman Gr.II) in the respondent organization. After following due selection process, the 2nd respondent authority issued proceedings No.EE/O/KDP/JAP/ADM/S2/D.No.520/20, dated 30.09.2019 appointing this petitioner for the said post. Pursuant to the said appointment, the petitioner joined duty on 02.10.2019 as Energy Assistant (Junior Lineman Gr.II) in Kolumalapalli, C.K.Dinne Section Rural-I Sub-Division/Kadapa. Since the date of reporting to duty, he is attending to work to the satisfaction of the most of superiors and worked with utmost sincerity without any remarks. While so, the termination order was issued by the 2nd respondent vide Memo No.EE /O /KDP /JAP /ADM /S2 /D.No.520/20, dated 08.04.2020 based on some extraneous charges not connected to his duties and without giving any opportunity to the petitioner. Such termination without issuing any notice is illegal, arbitrary and violative of principles of natural justice. Therefore, the petitioner sought to declare the impugned memo in this writ petition as illegal and arbitrary.
2
3. The respondents filed counter-affidavit admitting the appointment of this petitioner as Energy Assistant (Junior Lineman Gr.II), his posting and discharging his duties, while contending that the petitioner was arrayed as accused in FIR No.112 of 2020 for the offences punishable under Section 353 read with 34 IPC and Section 79(A) read with 8(e) of the A.P. Prohibition Act, 1995, which is contrary to the undertaking given by him at the time of appointment as Energy Assistant (Junior Lineman Gr.II), therefore, the petitioner does not deserve any prior notice and no notice need be served as per the adhoc rules, which are passed for appointment as Energy Assistant (Junior Lineman Gr.II). Hence, the impugned memo issued by the respondent authorities is in accordance with law and requested this Court to dismiss the petition.
4. During the course of hearing, Sri G. Ramachandra Reddy, learned counsel for the petitioner contended that even a temporary employee also cannot be terminated, except by applying the principles of natural justice. The petitioner was not served with any notice before passing termination order, thereby the impugned memo is against the principles of natural justice and consequently the same is liable to be set aside.
5. In support of his contention, learned counsel for the petitioner placed reliance on the judgments of the Apex Court in A.P. Ahua v. State of Punjab and Ors1 and Basudeo Tiwary v. Sido Kanhu University and Ors2. On the strength of the principle laid down in the above judgments, the counsel requested to set aside the impugned memo, as it is violative of principles of natural justice, since, no notice was served on the petitioner before issuing the impugned memo. 1 AIR 2000 Supreme Court 1080 2 AIR 1998 Supreme Court 3261 3
6. Whereas, the learned counsel for the respondents mainly contended that when the adhoc rules does contemplate issue of any notice before terminating the services of the petitioner, the appointment order is clear that the respondents are not required to serve notice before termination of the services of the petitioner in terms of paras 3 and 4 of the proceedings No.EE/O/KDP/JAO/ADM/S2/D.No.1458/19, dated 30.09.2019 and therefore the petitioner is not entitled to claim any prior notice, before passing the termination order and consequently it does not amount to violation of principles of natural justice and requested to dismiss the petition.
7. Undoubtedly, the basis for appointment of this petitioner is the adhoc rules passed by the Southern Power Distribution Company of A.P. Limited dated 02.06.2020 vide S.O.O (CGM-HRD) Ms.No.755. Para 2 of the rules specifically says that in terms of permission accorded by the Secretary to Government, Energy Department vide Letter No.ENE01/490/2019-1, dated 27.07.2019 (3rd reference), the Government of Andhra Pradesh accorded permission to appoint Energy Assistant (Lineman Gr.II) for a period of two (02) years with consolidated pay of Rs.15,000/- (Rupees Fifteen Thousand only) per month, to work in the Village Secretariats/Ward Secretariats established in the Gram Panchayats/Wards as per G.O.Ms.No.110, dated 19.07.2019 of Panchayat Raj and Rural Development (MDL-1) Department and g.O.Ms.No.217, dated 20.07.2019 of Municipal Administration and Urban Development (UBS) Department read with Letter No.ENE01/49/2019-1, dated 27.07.2019 of Secretary to Government, Energy Department, Government of Andhra Pradesh and adopted the rules, and relevant rules are extracted hereunder:- 4
(iv) Their appointments are provisional and liable for termination at any time, without notice and without assigning any reasons.
(v) Their services will be terminated without any notice, if performance is not found to be satisfactory.
(vi) The tripartite agreements entered into between the APSEB, Government of A.P. and the employees Unions/associations are not applicable to these candidates and they shall at no stage, be entitled to claim any right, what so ever arising out of said Tripartite Agreement.
8. Same condition is incorporated in the order of appointment making it clear that the appointment of the petitioner as Junior Lineman Gr.II to work in the Village Secretariats/Ward Secretariats is provisional and liable for termination at any time without notice and without assigning any reasons. It is also further made clear that they shall be governed by the rules and regulations applicable as will be framed by the APSPDCL and as amended from time to time and they shall not claim any parity with the employees appointed in other cadres of APSPDCL.
9. Even according adhoc rules, except the condition incorporated in the order of appointment of the petitioner on temporary basis for a period of two (02) years with the consolidated pay of Rs.15,000/- (Rupees Fifteen Thousand only) and any notice be served on him before termination. However, these rules are adhoc in nature and not based on any statutory recommendation.
10. In any view of the matter, a similar question came up for consideration before the Apex Court in A.P. Ahua's case (referred (1) supra) as to whether the probationer was removed from service 5 without issuing any notice though the probation of two years was not completed as on the date of order of termination. The contention of the respondents that the petitioner therein cannot claim any right on the post in which he was appointed and being on probation, his work and conduct was all along under scrutiny and since his work was not satisfactory, his services were terminated in terms of the conditions set out in the appointment order. But, the Apex Court declined to accept the contention of the respondents and held in paras 7, 8 and 9 of the judgment as follows:-
7. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice.
8. The affidavits filed by the parties before the High Court as also in this Court indicate the High Court as also in this Court indicate the background in which the order terminating the services of the appellant came to be passed. Such an order which, on the face of it, is stigmatic, could not have been passed without holding a regular enquiry and giving an opportunity of hearing to the appellant.
9. The entire case law with respect to a "probationer" was reviewed by this Court in a recent decision in Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta, (1999) 3 SCC 60 : AIR 1999 SC 983 : (1999) 1 JT (SC) 396: (1999 AIR SCW 605 : 1999 Lab IC 1114). This decision fully covers the instant case as well, particularly as in this case, the order impugned is stigmatic on the face of it."
11. In another judgment in Basudeo Tiwary's case (referred (2) supra) the Apex Court held in para 8 of the judgment as follows:-
8. Several contentions have been addressed by learned counsel on either side. However, for the purpose of disposal of this appeal, it is suffice to consider only one aspect of the matter and that is, whether the appellant had been given an opportunity of being heard before terminating his services, and in the absence of the same whether such termination is valid. The High Court took the view 6 that the appointment of the appellant made by the Syndicate of the University by its resolution dated 24.01.1986 is illegal and on that basis took the view that the termination of the services was in order but did not examine the aspect with which we are concerned in the present case as to the non-observance of rule of Audi Alteram Partem, consequently set aside the order for non-compliance of principles of natural justice.
12. Article 311(2) of the Constitution does not in terms say that the protection of that article applies only to persons who are permanent members of the services or those who hold permanent civil posts. To limit the operation of the protective provision of this article to the permanent government servants alone would amount to adding of qualifying words to the article. The protection afforded by that article applies equally to persons in permanent appointment as well as to those appointed on temporary basis.1 It is a well settled law that the service of a persons appointed on a temporary basis in the service of the state is liable to be terminated in the exigencies of public service by ordering termination in accordance with rules regulating temporary government servants and to such termination provisions of article 311(2) does not apply because such termination is neither dismissal nor removal within the meaning of article 311(2).
But if the concerned authority chooses to terminate the service of temporary government servant on the basis of alleged misconduct, it is mandatory for the authority to comply with the provisions of article 311(2) before issuing such an order of termination. Termination for misconduct ola temporary employee falls within the expression of 'removal' or 'dismissal' contained in article 311(2). A temporary government servant, in such circumstances is entitled to the protection guaranteed in article 311(2). Therefore, any order of termination of service of a temporary government servant for misconduct without holding an enquiry and without giving a 7 reasonable opportunity against such termination is void as offending article 311(2). Similarly, a person appointed as extra-departmental postal delivery agent is a civil servant entitled to the protection of article 311(2) if his termination is made as a measure of punishment. An order of termination of service of a temporary employee simpliciter is not invalid. But, if disciplinary grounds or other reasons are set out in the termination order, the same attaches stigma to the employee and, therefore, such an order cannot be made without inquiry. When the order of termination of service is passed by way of punishment and is ex facie punitive in nature, such an order cannot be passed even in respect of temporary employee, without a regular departmental inquiry.
13. The Supreme Court has ruled that if there are allegations of misconduct against an employee on probation and an inquiry is held to find out the truth of that misconduct wherein an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not with a view to assess the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In such a situation, the order would be founded on misconduct.
14. If the government dismisses such an employee in a punitive manner, or as a punishment, then termination of his service may amount to 'dismissal' or 'removal' attracting the application of article 311.7 In such a case, it becomes incumbent to hold a formal inquiry by framing charges against him and giving him reasonable opportunity in accordance with article 311(2).
8
15. As in the case of reversion in cases of termination of service of persons in temporary service or appointed under special terms and conditions, it is the duty of the court in a given case to find out by applying the relevant tests whether the termination of a temporary government servant is termination simpliciter under the rules regulating termination or a penalty for misconduct, when such an order is challenged as violative of article 311 (2).8 The principles governing the cases of termination of temporary civil servants attracting the provisions of article 311(2) are set out below.
16. If these principles are applied to the present facts of the case, even though no notice is required to be served on the petitioner as per the adhoc rules and as per the appointment order, still the respondents are required to comply the principles of natural justice and failure to comply the same, vitiates the order impugned in the writ petition, since no opportunity was afforded to him, but based on the FIR No.112 of 2020, the termination order was passed. Thus, the order passed by the respondents terminating the services of the petitioner is contrary to the principles of natural justice and it is vitiated by an irregularity, thereby same is liable to be set aside as the termination of services of the petitioner is arbitrary, though the petitioner is a temporary employee. Hence, the contention of the respondents that no notice is required to be issued, is hereby rejected, as the order under challenge is not in compliance of principles of natural justice. Therefore, by applying the principles laid down in the above judgments, the order impugned in this writ petition is liable to be set aside.
9
17. In the result, the Writ Petition is allowed, declaring the impugned Memo No. EE /O /KDP /ADM /JAO /S2 /D.No.520/20, dated 08.04.2020 issued by the Executive Engineer (Operations) APSPDCL, Kadapa as illegal, arbitrary and violative of principles of natural justice, consequently same is hereby set aside while directing the respondents to reinstate the petitioner into service. However, this order will not preclude the respondent authorities to take appropriate action, in accordance with law, more particularly, in compliance of principles of natural justice.
As a sequel miscellaneous application, pending, if any, shall also stand closed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 01.02.2021 IS 10 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION NO.11719 OF 2020 Date: 01.02.2021 IS