B.Narasimha Naik vs Southern Power Distribution ...
2021 Latest Caselaw 468 AP

     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.

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.

AIR 2000 Supreme Court 1080

AIR 1998 Supreme Court 3261

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:-

(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

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

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

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).

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.

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

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION NO.11719 OF 2020

Date: 01.02.2021

IS