HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
WRIT PETITION No. 25186 of 2021
ORDER:
Heard Sri Y. Koteswara Rao, learned counsel for the petitioner, learned Government Pleader for Services-I appearing for the official respondents, and Sri K.V. Raghu Veer, learned standing counsel appearing for the 4th respondent.
2. This writ petition is filed to declare the action of the 4th respondent in issuing the proceedings dated 07.04.2021 ordering the petitioner to pay a sum of Rs.1,61,719/- and keeping her under suspension till payment of the said amount, as illegal and arbitrary.
3. In brief, the case of the petitioner is that she was appointed as a Teacher on contract basis on 11.10.2011 and he worked for nearly ten years without any remark or blemish. On 05.02.2018, she was appointed as a Special Officer in K.G.B.V. Residential School at Kolimigundla, Kurnool District, and worked till 19.11.2019. While so, on 27.10.2019, the 3rd respondent issued a show cause notice dated 31.10.2019 calling upon the petitioner to submit an explanation within three days, on the allegations that the Moment Register of students was not maintained, the Stock Register was not maintained 2 NV,J W.P.No.25186 of 2021 properly, ANM & PET were not available, etc., for which the petitioner submitted a detailed representation on 01.11.2019 and stated facts and circumstances. Subsequently, i.e., on 16.11.2019 the 3rd respondent also issued proceedings dated 16.11.2019 relieving the petitioner from duties with immediate effect. It is also the case of the petitioner that on 28.03.2020 an enquiry was conducted by a Committee and a report was filed by the Committee. Basing on the said report, the 4th respondent issued a show cause notice dated 15.06.2020 calling upon the petitioner to explain as to why the disciplinary action should not be taken against her for her negligence in discharge of duties and for misappropriation of funds. On 18.06.2020, the petitioner gave a detailed explanation to the said show cause notice. Without taking into consideration of the explanation submitted by the petitioner, on 29.09.2020 the 5th respondent passed an order keeping the petitioner under suspension till the misappropriated amounts are recovered and also to remit an amount of Rs.1,61,719/-. Thereafter, on the instructions of the 6th respondent, the petitioner attended an enquiry held on 22.02.2021 and pleaded that she never committed any mistake. Finally, on 07.04.2021, the 4th respondent issued the impugned proceedings instructing the petitioner to remit an amount of Rs.1,61,719/- in the name of the 5th respondent. Hence the writ petition.
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4. The 4th respondent filed a counter affidavit wherein it is stated that the 5th respondent instructed the Joint Director, Animal Husbandry, Kurnool, to visit the KGBV, Kalimgundla and to conduct enquiry on the irregularities made by the petitioner and one Smt. C.Harathi, Accountant of said institution. The Enquiry Officer visited the school on 31.12.2019 and conducted a preliminary enquiry. The Enquiry Officer stated that the both the petitioner and the Accountant marked excess attendance of the students and claimed DIET charges and they committed irregularities and requested to take disciplinary action against them vide letter dated 04.01.2020. The same was submitted to the State Project Director, APSS, Amaravati vide letter dated 28.01.2020 for taking necessary action. As per the orders of the State Project Officer, a Committee was constituted to conduct a detailed enquiry on the irregularities committed by the petitioner and the Accountant and for submission of a report. The Committee conducted a detailed enquiry and submitted a detailed report vide letter dated 28.03.2020 stating that the petitioner committed irregularities in collusion with the Accountant and the petitioner was negligent in discharge of her duties. Basing on the enquiry report, a show cause notice dated 15.06.2020 was issued to the petitioner to submit an explanation. Subsequently, on the representations of the petitioner, the 5th respondent appointed the 6th 4 NV,J W.P.No.25186 of 2021 respondent as an Enquiry Officer to cause enquiry on the irregularities committed by the petitioner and the Accountant of the School. The 6th respondent also conducted enquiry and submitted a report stating that the petitioner misappropriated the funds and committed irregularities in discharging her duties. Pursuant thereto and as per the orders of the 5th respondent, the 4th respondent issued proceedings dated 07.04.2021 instructing the petitioner to remit an amount of Rs.1,61,719/-.
i) It is also stated that the State Project Director, APSS, Amaravati, issued certain guidelines vide proceedings dated 24.04.2019 for reengaging the services of employees on outsourcing/contract basis in SSA for the year 2019-2020 and also issued instructions to obtain agreements from the contract staff only, to the effect that they will abide by the conditions of the SSA and they are liable for withdrawal of contract without any notice, if they deviated any one of the conditions including misappropriation of the funds and if their services are not satisfactory.
ii) For the reasons stated above, the petitioner is not entitled to seek any relief from this Court and there are no merits in the writ petition and the same is liable to be dismissed.
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5. Learned counsel for the petitioner would submit that the enquiry was not conducted as per the Rules and the petitioner was not issued any charge-memo; the statements of the witnesses were not recorded in the presence of the petitioner so as to enable the petitioner to cross-examine the witnesses; the copies of statements of the witnesses were also not supplied to the petitioner along with the show cause notice, thereby, the petitioner lost the opportunity of giving a detailed and comprehensive explanation to the show cause notice; the method and manner of arriving the misappropriated amount is not correct; the entire report of the Committee was vitiated and therefore it could not be the basis for taking any action against the petitioner; and the subsistence allowance was not paid to the petitioner during the suspension period. He, therefore, prays to allow the writ petition.
6. On the other hand, learned Government Pleader for Services-I and learned standing counsel appearing for the 4th respondent would submit that in the presence of the petitioner, the enquiry was conducted and the statements of the witnesses were recorded and the petitioner was also given an opportunity to cross-examine the witnesses. There are no merits in the writ petition and the same is liable to be dismissed. 6
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7. Having considered the submissions made by both the learned counsels, it is apt to refer to Clauses 6 and 7 of the Contract of Agreement entered into between the petitioner and the respondent authorities which reads as under:
"6. Rescission - Either party may rescind this contract at any time by giving the other party at least 30 calendar days notice in writing of its intention to dos. However, the SSA will suspend or dismiss the services of the signatory immediately, if involved in disciplinary/criminal cases and prima facie findings establish the irregularities. The State Project Director, Sarva Shiksha Abhiyan is empowered to take necessary appropriate action without giving any notice.
7. Termination - In case of improper conduct and/or unsatisfactory performance by the signatory having regard to particular to the terms of reference mentioned above, Sarva Shiksha Abhiyan shall terminate this contract without any notice and no compensation shall be payable in such case."
8. As seen from the reports of the Enquiry Officers, it is revealed that the petitioner committed irregularities by claiming excess diet charges while showing excess attendance than the presence of the inmates of the hostel and also exhibited her negligence in discharging her duties entrusted to her.
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9. In M. Deenaviolet Vs. Samagra Shiksha Abhiyan1 and S. Prakash Vs. State of Andhra Pradesh2, this Court held that when an employee engaged on contract basis, no departmental enquiry need be initiated to take departmental action against him and termination of services of such employee always depends upon the terms and conditions of the contract.
10. In M. Deenaviolet (1 supra), in paras 13 and 15 of the judgment, the learned Single Judge of this Court held as under:
"13. The petitioner by accepting the terms and conditions of the contract agreement, condition No. 7 referred to above, cannot now complain the violation of the principles of natural justice of affording opportunity of hearing. The acceptance of such condition amounted to waiver of the opportunity of hearing/notice before termination of contract, to which the petitioner would not be entitled, unless by reason of some statute, rules or regulations governing the service conditions, the petitioner was or became entitled to such opportunity. Any such statute, rules or regulations has not been placed before the court.
15. The court does not find force in the contention of the learned counsel for the petitioner that before passing the order of termination of contract a regular enquiry should 1 2022 SCC Online AP 956 2 2020 SCC Online AP 4957 8 NV,J W.P.No.25186 of 2021 have been conducted. Any provision for holding any regular detailed enquiry with respect to contract employees, as in the present case, has not been placed before the court."
11. In S. Prakash (1 supra), in para 9 of the judgment, the learned Single Judge of this Court held thus:
"9. When an employee engaged on contract basis, no departmental enquiry need be initiated to take departmental action against him. In the present case, since there is no relationship between the temple and the petitioner as an employer and employee, and at best, it is only contract to render services in the temple on payment of consideration for such rendering services. Termination of service of this petitioner always depends upon terms and conditions of the contract. Therefore, the petitioner, if entitled to any notice in terms of the contract or payment of any salary before termination, the respondent may take appropriate action in terms of contract of service between the petitioner and the respondent. But the petitioner is not entitled to claim a writ of Mandamus as a matter of right, having indulged in such unethical and immoral activities. Therefore, at best, the petitioner may claim any right, if conferred on him by terms and conditions of the contract for payment of salary. In view of the above, the petitioner may proceed against the department to enforce contract of service, but not by way of Writ petition, as per the terms of the contract, if permitted."9
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12. In view of the foregoing discussion and in view of the above legal position, this Court is of the opinion that the decisions of the learned Single Judge of this Court referred to above are applicable to the case on hand and therefore, the impugned proceedings warrant no interference by this Court.
13. Accordingly, the Writ Petition is dismissed. No order as to costs.
Consequently, Miscellaneous Petitions, if any, pending in the writ petition shall stand closed.
____________________________________ VENKATESWARLU NIMMAGADDA, J 18th November, 2022 cbs 10 NV,J W.P.No.25186 of 2021 HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA Writ Petition No.25186 of 2021 18th November, 2022 cbs