HONOURABLE SRI JUSTICE N.V.SHRAVAN KUMAR
WRIT PETITION No. 36254 of 2022
ORDER:
The present writ petition is filed seeking issuance of writ of mandamus to declare the Memo No.B/CWA/Termination/ 2022, dated 23.06.2022 issued by the Principal, Government Polytechnic for Women, Suryapet, respondent No.4, and the proceedings, dated 17.06.2022 issued by the Commissioner of Technical Education, Hyderabad, respondent No.2, as wholly illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India and without application of mind apart from being violative of principles of natural justice and consequently, declare that the petitioner is entitled to be continued in service with all consequential benefits.
2) The facts, in brief, are that the petitioner had completed Intermediate and I.T.I. in Fitter Trade. In the year 2012, pursuant to the notification issued by respondent No.2, the petitioner applied for the post of Workshop Attendant on contract basis. The petitioner was selected for the said post and posted in Government Polytechnic, Nalgonda on contract 2 basis for the academic year 2012-2013 vide proceedings No.RJD (H)/B1/Workshop/2099/2012, dated 19.08.2012 issued by respondent No.3. The petitioner joined duty as Workshop Attendant on 23.08.2012 and he has been continuing on renewal of his contract yearly. The petitioner worked for four years in Government Polytechnic, Nalgonda and thereafter in the year 2016 he was transferred to Government Polytechnic for Women, Suryapet and since then he has been working as Workshop Attendant in the said college. While things stood thus, respondent No.4 addressed a letter bearing No.B/Surrender1/ Gpwscpt/2022, dated 02.05.2022 to respondent No.2 surrendering the petitioner to the head office for further action. In the above letter, respondent No.4 referred to certain memos issued to the petitioner and the replies given by him to the said memos. Though the petitioner was surrendered, he had continued in the said college till 22.06.2022. Respondent No.2 issued Memo, dated 19.05.2022 informing respondent No.4 to issue a show-cause notice to the petitioner as to why his services should not be terminated and submit a detailed report, along with his remarks, for taking further necessary action in the matter. Pursuant to the said memo, respondent No.4 issued 3 show-cause notice No.B/01/2022, dated 24.05.2022, directing the petitioner to submit his explanation as to why his services should not be terminated on the ground that he is not carrying out work assigned by the higher authorities. In the show-cause notice, respondent No.4 also referred to certain memos given to the petitioner and the replies of the petitioner to the said memos. The petitioner has submitted a detailed explanation on 01.06.2022 stating that he has been carrying out the work assigned by the higher authorities and obeying the instructions of the superiors and he is not negligent in performing the allotted duties. In the explanation, the petitioner has specifically denied the allegations that he is infusing ill behavior in other contract workshop attendants and making unnecessary arguments with the Principal and other Head of the Departments and requested to drop further action against him in the matter. Thereafter, the explanation given by the petitioner to the above show-cause notice was forwarded by respondent No.4 to the Commissioner of Technical Education, Hyderabad, respondent No.2. Though the petitioner had submitted his explanation on 01.06.2022, respondent No.2 recorded that he had submitted his explanation on 16.06.2022. Then Respondent 4 No.2 issued orders, dated 17.06.2022, instructing respondent No.4 to terminate the petitioner from contractual services with immediate effect. Pursuant to the said orders, dated 17.06.2022, respondent No.4 issued memo, dated 23.06.2022, terminating the petitioner from the contractual services with immediate effect. Questioning the memo, dated 23.06.2022, issued by respondent No.4 and the proceedings dated 17.06.2022, issued by respondent No.2 the present writ petition is filed.
3) A counter has been filed by the Government Pleader for Services-I stating that the petitioner has been initially appointed as workshop attendant on contract basis and he has joined on 23.08.2012 as contract workshop attendant in Government Polytechnic, Nalgonda and later in the year 2016, the petitioner was transferred to respondent No.4 institution. It is further stated in the counter that as per the communication received from respondent No.4 vide letter, dated 02.05.2022, it was noticed by respondent No.2 that the petitioner is not attending to the institution on allotted time and not obeying the instructions of the Principal and the Head of the Departments 5 and also infuses the ill behavior with other contract workshop attendants, which shows the negligence attitude of the petitioner towards the duties assigned to him and attracts the provisions of the Telangana State Conduct Rules and hence prima facie established the dereliction of duties against the petitioner. It is further stated that it is a clear case of lack of devotion and negligence of duties and therefore, contemplated to issue a show-cause notice to the petitioner to submit his explanation as to why his services shall not be terminated. The petitioner has submitted his explanation, which was forwarded to respondent No.2. It is also submitted that the petitioner failed to submit any satisfactory reply to the show-cause notice issued to him and hence, respondent No.2 issued orders, dated 17.06.2022, instructing respondent No.4 to terminate the services of the petitioner with immediate effect, duly following the procedure laid down in the Telangana State Civil Services (CCA) Rules, 1991 (for short "the Rules") and accordingly, the petitioner was terminated from service vide proceedings, dated 23.06.2022. It is further submitted that as per the terms of contract agreement, the competent authority is respondent No.2 and the services of a contract staff shall be terminated as 6 and when subject to disciplinary control in accordance with the provisions of G.O.Rt.No.53, Higher Education (TE) Department, dated 20.03.2018. It is further submitted that the respondents have followed due process of law while terminating the services of the petitioner.
4) Heard Sri Kondaveeti Ravi, learned Senior Counsel appearing for Sri Kirthi Teja Kondaveeti, learned counsel for the petitioner; learned Government Pleader for Services-I and perused the material available on record.
5) Learned Senior Counsel appearing for the petitioner submits that it is well settled principle of law that the termination of services of a contract employee without conducting an enquiry would only cast stigma on the employee and attributes malafides against him. In support of the said contention, he relied upon the judgments of this Court in A.P.Tourism Development Corporation Limited and another v. B.Nandeswar Rao1 and in S.Zabeda Parveen v. A.P.Women's Cooperative Finance Corporation, Hyderabad 1 (2014) 15 ALD 670 (DB) 7 and another2. The main grievance of the petitioner is that the respondent authorities issued the show-cause notice alleging that the petitioner did not obey the instructions of the superiors and not carrying the work assigned by the higher authorities and he is infusing ill behavior in other contract workshop attendants, negligent in performing the allotted duties i.e., watchman duty and making unnecessary argument with the Principal and other Head of the Departments. It is further submitted that the whole controversy arose as the petitioner was not willing to attend the night watchman duties allotted by respondent No.4 as those duties are not related to Workshop Attendant. The petitioner also appended the job chart i.e., the duties of Lab Attendant and Workshop Attendant, along with the writ petition. It is further submitted that the petitioner is not willing to perform night watchman duties, which are in no way related to the duties of workshop attendant, respondent No.4 bore grudge against him and wantonly surrendered his services initially to the head office and thereafter, show-cause notice was issued and then the present termination order was issued on the instructions of respondent No.2 without applying his mind 2 (2015) 6 ALD 675 8 independently. It is further submitted that the respondent authorities have issued the impugned termination orders when the regularization file of contract workshop attendants is pending with the Government. In April, 2022, respondent No.2 sent proposals for regularization of services of contract workshop attendants, wherein the name of the petitioner was also included. Respondent No.4 with an ill intention to see that the services of the petitioner are not regularized wantonly surrendered his services. It is further submitted that the petitioner is the Associate President of Telangana Polytechnic Contract Workshop Attendants Association and he has been ventilating the problems being faced by the contract workshop attendants to the notice of respondent No.4. As the petitioner, who is the office bearer of the said Association, was pursuing with respondent No.4 for getting the services of contract workshop attendants regularized, respondent No.4 bore grudge against the petitioner and got the termination order issued to see that his services are not regularized. The learned Senior Counsel has drawn the attention of this Court to Rule 9 and sub rule (1) of Rule 20 of the C.C.A. (Conduct) Rules. 9
6) Learned Government Pleader for Services-I, while reiterating the contents of the counter, submits that as per the instructions of respondent No.2, respondent No.4 had terminated the services of the petitioner by duly following the procedure laid down in the Rules. It is further submitted that as per the provisions of G.O.Rt.No.53, Higher Education (TE) Department, dated 20.03.2018, the services of a contract staff shall be terminated on giving one month's notice or pay in lieu thereof. Learned Government Pleader has drawn the attention of para 4 (VII) of G.O.Rt.No.53, which discloses the conditions of appointment.
7) From the above rival submissions, the issues that fall for consideration are whether the termination which is punitive or stigmatic can be inflicted without following the principles of natural Justice and whether it is necessary to hold a departmental enquiry while terminating the services of the petitioner, who is a contract employee?
8) The undisputed fact is that the petitioner was appointed on a contract basis as Workshop Attendant initially for the academic year 2012-2013 which was renewed from time to time. 10 The services of the petitioner was surrendered by respondent No.4 alleging that he is not attending the work allotted to him stating that he is not attender/Class-IV employee and he also infuses the ill-behaviour in other Contract Workshop attendants to the head office vide letter, dated 02.05.2022. Vide memo, dated 19.05.2022, respondent No.2 instructed respondent No.4 to issue show-cause notice to the individual as to why his services should not be terminated and accordingly submit a detailed report along with his remarks for taking further necessary action in the matter. Pursuant to the instructions, show-cause notice, dated 24.05.2022 has been issued by respondent No.4 as to why the services of the petitioner will not be terminated with immediate effect. It is apt to refer to the contents of the show-cause notice which reads as under:-
"It is construed that Sri G.Nagaiah, Contract Workshop Attendant of this institution is intentionally not carrying the work assigned by higher authorities. As to why disciplinary action should not be taken against him on the following grounds:-
1. He is not obeying the instructions of the superiors, stating that he is not an Attender.
2. Insubordination to the administration.
3. Infuses the ill-behaviour in other contract workshop attendants.11
4. Negligent in performing allotted duties i.e., Watchman duty.
5. Unnecessary argument with the Principal and other HODs. Therefore, as to why his services will not be terminated with immediate effect. His detailed explanation should be reached to the undersigned within ten days from the date of receipt of this show-cause notice."
9) A perusal of the show-cause notice in the first paragraph it is mentioned that "as to why disciplinary action should not be taken against the petitioner on the aforesaid grounds" and in the conclusion para it is mentioned that "as to why his services will not be terminated with immediate effect".
10) The petitioner has submitted his explanation, dated 01.06.2022 to respondent No.2. A perusal of the explanation would show that the petitioner is attending to the duties of night watchman in Government Women Polytechnic, Suryapet for the last six years i.e., since 2016 as well as attending to the duties of day watchman as per turn. In this regard he sought request for verification of the watchman register. It is also clear from the explanation that the petitioner made a request for exemption for one day i.e., on 14.12.2021 in view of the health problem of his four months daughter, but never said that he will not attend to the duty. It is also stated in the 12 explanation that in obedience to the instructions of respondent No.4, the petitioner also performed the other duties like putting the furniture outside from the old room damage slab for verification of furniture, along with others.
11) Though the petitioner has elaborately explained in the explanation submitted to the show-cause notice, respondent No.2 has not considered the same and instructed respondent No.4 to terminate the petitioner from contractual services with immediate effect. Admittedly, the impugned memo does not disclose the cogent reasons to substantiate his termination.
12) Even otherwise, without conducting any enquiry, the cryptic order terminating the contractual services of the petitioner with immediate effect has been passed. It is well settled law that even an outsourced employee cannot be stigmatized without an enquiry. In the case of S.Zabeda Parveen v. A.P.Women's Cooperative Finance Corporation, Hyderabad and another (supra) wherein an issue was framed as "Whether holding of a regular departmental enquiry against the petitioner, who was a temporary contract employee, was 13 necessary?" After considering the plethora of judgments of the Hon'ble Apex Court, this Court, held as under:-
"16. Even if the petitioner is treated as a purely temporary contract employee, she is entitled to the protection of Article 311 (2) of the Constitution of India as in the case of permanent Government Servants, if her services are sought to be terminated on the ground of misconduct. ...
19. ... Therefore, the order being not only stigmatic, but also punitive, the stand of the respondents that there was no need to conduct a regular departmental enquiry is contrary to the settled legal principles discussed above."
13) In A.P. TOURISM DEVELOPMENT CORPORATION LIMITED, V/s. B.NANDESWAR RAO (supra), a Division Bench of this Court held as under:-
"11. It is true that unlike an employee, who is appointed on regular basis, the services of an employee appointed for a fixed tenure can be brought to an end without the necessity of conducting a detailed departmental enquiry. Much, however, would depend upon the nature of blot left upon the person while terminating the contract. Notwithstanding the fact that the appointment was for a fixed term, if the employer intends to brand the employees as inefficient or to attribute, misconduct, the conducting of enquiry becomes essential."
14) In State of A.P. rep. by its Principal Secretary, Municipal Administration and Urban Development 14 Department, Velagapudi and others v. K.Madhu Phani and another (supra), a Division Bench of this Court held as under:-
"In our opinion, even in case of an outsourced employee, he cannot be stigmatized without an enquiry and in our opinion, the learned single Judge has correctly appreciated the elements of prima facie case, balance of convenience and irreparable injury in making the interim order absolute."
15) In view of the above settled principles of law, in my considered opinion, it was incumbent on the part of respondents to conduct disciplinary enquiry after issuing charge memo to the petitioner asking the petitioner to submit explanation to the same, and thereafter conduct an enquiry by leading evidence to prove the charge and then only take action against petitioner, but not otherwise.
16) Further, the Government took a policy decision vide G.O.Ms.No.94, General Administration (SR-A) Department, dated 28.03.2003, on recruitment of public services. It is apt to refer to clause 11 of the said policy decision, which reads as under:-
"11. Disciplinary control: Subject to the overall right of the Department to terminate the contract on giving one month's notice, or pay in lieu thereof, a person appointed 15 on contract basis shall be subject to disciplinary control in accordance with the provisions of A.P.C.C.A. Rules."
17) Added to that, as per clause (e) of the appointment proceedings, dated 19.08.2012 itself, the Department has overall right to terminate the contract on giving one month's notice or pay in lieu thereof, he/she shall be subject to disciplinary control in accordance with the provisions of A.P.Civil Service (CCA) Rules, 1991.
18) Further, though the learned Government Pleader referred the conditions of appointment stipulated in para 4 (VII) of G.O.Rt.No.53, the respondents failed to produce any contract agreement and only filed a Format enclosed to G.O.Rt.No.53. It is necessary to refer to para 4 (VII) of G.O.Rt.No.53, which is as under:-
"VII. Conditions of appointment: The appointment of a person on contract basis shall be made under Rule 9 of A.P.State and Subordinate Service Rules, 1993. The person appointed under sub rule (a) of the said Rule (9) shall not be regarded as a member of the service in which the post to which he/she is appointed, and shall not be entitled by reason, only of such appointment, to any preferential right to any other appointment in that or any other service. The Department or the person appointed may revoke the 16 contractual appointment or discontinue the contract by giving one month's notice in writing on either side."
19) Admittedly, the services of the petitioner were utilized for a continuous period of ten years. Since the respondents did not produce any contract agreement and also failed to produce any record to show that while terminating the services of the petitioner, the respondent authorities have complied with clause (e) of the proceedings, through which the petitioner was appointed or clause (11) of the policy decision vide G.O.Ms.No.94, General Administration (SR-A) Department, dated 28.03.2003 or para 4 (VII) of G.O.Rt.No.53. In view of the above, the respondents have not discharged their obligations and liabilities. Moreover, the petitioner has been appointed by respondent No.3, who is an appointing authority. The impugned termination orders were issued by respondent No.4 on the instructions of respondent No.2. As the respondent No.4 is not an appointing authority, the termination order issued by him is totally misconceived and ex facie illegal.
20) From the aforesaid discussion and having regard to the judgments referred to above and since the contractual services of the petitioner was terminated with immediate effect without 17 giving any cogent reasons and without considering the detailed explanation submitted by him to the show-cause notice and without conducting enquiry, this Court is of the opinion that the Memo No.B/CWA/Termination/2022, dated 23.06.2022 through which the services of the petitioner were terminated is punitive and stigmatic in nature and the same is not sustainable under law.
21) Accordingly, the Writ Petition is allowed setting aside the Memo No.B/CWA/Termination/2022, dated 23.06.2022 issued by respondent No.4 and directed the respondent authorities to reinstate the petitioner into service forthwith. No order as to costs.
Miscellaneous application, if any pending, shall stand closed.
______________________ N.V.SHRAVAN KUMAR, J 25.11.2022 gkv 18 HONOURABLE SRI JUSTICE N.V.SHRAVAN KUMAR WRIT PETITION No. 36254 of 2022 Date: 25.11.2022 gkv