Andhra Pradesh High Court - Amravati

Batraju Siva Prasad vs The State Of Andhra Pradesh, on 19 February, 2021

Bench: M.Satyanarayana Murthy

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                 WRIT PETITION NO.13551 OF 2020

ORDER:

This writ petition is filed under Article 226 of the

Constitution of India seeking the following relief:

"To declare the action of the Respondents herein particularly Respondent No 2 in not allowing the petitioners to discharge their duties as Salesman at Nidamarru Wine Shop on the ground that Crime No.158 of 2020 was registered against the petitioners herein without causing any enquiry with the supervisor of the wine shop about the presence of the petitioners on the even date and time basing on the mediators report prepared by the Station House Officer Nidamarru Police Station West Godavari District and without terminating and without issuing any notice to the petitioners about the termination orders as nothing but illegal arbitrary erroneous high handed and violative of principles of natural justice apart from violative of Articles 14 and 21 of the Constitution of India and consequently direct the Respondent No.2 to allow the petitioners to discharge their duties as salesman at Nidamarru Wine Shop without adhering the Crime No 158 of 2020 registered by the Station House Officer Nidammaru Police Station for the offence under Section 34-A APEA Amendment 2020"

The brief facts of the case are that, the petitioners were

initially taken on Nominal Muster Rolls (hereinafter 'NMR') in

month of October, 2019 to work in a wine shop at Nidamarru

village and Mandal, West Gdoavari District, which is under the

control of the second respondent/Andhra Pradesh State Beverages

Corporation Limited. Thereafter, they were directed to work as

salesman on regular basis, but not issued any appointment orders,

as their selection is not done through notification.

While the matter stood thus, on 29.07.2020, on receiving

credible information about sale of liquor without having license,

the Sub-Inspector of Police, Nidamarru Police Station apprehended

one Konakalla Venkateswara Rao, for selling liquor bottles illegally MSM,J WP.No.13551 of 2020

at higher price for their illegal gains. The police seized 52 bottles of

'President medal fine whisky 180 ml', total worth Rs.9,360/-.

During interrogation, Konakalla Venkateswara Rao (A-1) stated

that he purchased the liquor bottles from the shop where the

petitioners are working as salesman. Thereupon, the Sub-Inspector

of Police summoned the petitioners and the supervisor of the wine

shop. The petitioners stated that, as part of their duty, they have

sold the liquor from 6 a.m to 11 a.m amid COVID-19 by following

the directives issued by the State Government.

However, the Mediator's Report disclosed that, Konakala

Venkateswara Rao (A-1) and the petitioners herein/(A-2 & A-3) are

selling the liquor bottles at Rs.20/- more than the rate of M.R.P,

without taking permission from the Excise Department. A case in

Crime No.158 of 2020 was registered on the file of Nidamarru

Police Station, West Godavari, against the petitioners

herein/Accused Nos.2 and 3 for the offence punishable under

Section 34(A) of the Andhra Pradesh Excise (Amendment) 2020.

Based on registration of crime, the petitioners were

remanded to judicial custody and thereafter, removed from the

employment as salesman at the instance of local M.L.A, who is

intending to engage his own followers in the wine shop, as he had

promised to provide employment to some of his followers.

Therefore, it is contended that, removal of the petitioners from the

employment of salesman is contrary to principles of natural justice

and they cannot be removed from service as salesman in the wine

shop under the control of the second respondent on the ground of

indulging in Crime No.158 of 2020 was registered on the file of MSM,J WP.No.13551 of 2020

Nidamarru Police Station, West Godavari and requested to issue a

direction as stated supra.

The respondents filed counter affidavit denying material

allegations, inter alia, contending that the petitioners are working

as NMRs, but not as salesman engaged by the second respondent

and since they were involved in illegal sale of 52 bottles of

President medal fine whisky 180 ml, total worth Rs.9,360/-, a case

in Crime No.158 of 2020 was registered on the file of Nidamarru

Police Station, West Godavari for the offence punishable under

Section 34(A) of the Excise Act. As the petitioners were involved in

criminal case, they were removed from the services of NMR and

that they have no right to engage in sale of liquor in the wine shop,

due to their involvement in illegal activities.

It is further contended that, purchase of liquor on behalf of

Konakala Venkateswara Rao (A-1) by these petitioners and selling

the same to the said Konakala Venkateswara Rao is a serious

offence and it amounts to violation of duty of these petitioners. it is

further contended that, when these petitioners were remanded to

judicial custody, that itself is sufficient to remove these petitioners

from the services of Nominal Muster Rolls who are engaged in the

sale of liquor in the wine shop of the second respondent and finally

sought to dismiss the writ petition.

During hearing, Sri A.K. Kishore Reddy, learned counsel for

the petitioner contended that, the petitioners received salary from

the second respondent, while they rendered their services as NMRs

in the wine shop under the control of the second respondent and MSM,J WP.No.13551 of 2020

produced certain documents viz., pay-slips, bank account

statements etc, to establish that the petitioners are being paid

salary; based on those documents, the learned counsel for the

petitioners contended that the petitioners are the employees under

the second respondent and they cannot be described as members

in Nominal Muster rolls and that they cannot be removed without

following due process of law, though no appointment order was

issued in their favour and requested to declare the action of the

respondents in not allowing these petitioners to discharge their

duties as salesman in the wine shop run by the second respondent

as illegal, arbitrary and consequently direct the second respondent

to permit the petitioners to discharge their duties in the wine shop

at Nidamarru, West Godavari District.

Whereas, Sri M. Jaya Rami Reddy, learned Standing Counsel

appearing for the second respondent contended that the

petitioners have no right to claim reinstatement, as the second

respondent paying daily wage to the members of Nominal Muster

Rolls and no notice is required to be issued to these petitioners

either as NMRs or as salesman. Apart from that, no material is

produced to establish that the services of the petitioners were

converted from the services of Nominal Muster Rolls to salesman.

In the absence of any material, learned counsel would contend

that, it is difficult to hold that these petitioners are salesman

engaged by the second respondent for sale of liquor and

consequently the petitioners are not entitled to claim writ of

mandamus, as they have no existing legal right and requested to

dismiss the writ petition.

MSM,J WP.No.13551 of 2020

A bare look at the allegations made in Paragraph No.3 of the

writ affidavit, the petitioners were engaged as members in Nominal

Muster Rolls for a period of three months. Thereafter, they were

directed work as salesman on regular basis, without any

appointment order. Similarly, the second respondent also admitted

in the counter affidavit that these petitioners were engaged as

members of Nominal Muster Rolls, while denying their conversion

into salesman. Therefore, engaging the services of these petitioners

as NMRs is an undisputed fact, but their conversion into salesman

is a disputed question of fact.

The conversion of these petitioners into salesman on regular

basis by the second respondent, who is a state instrumentality,

must be evidenced by some material. But, no piece of evidence is

produced and therefore, at best, it can be inferred that the services

of these petitioners were engaged as NMRs and they are being paid

daily wages and crediting the amount payable to the petitioners on

accumulation after every month.

The month-wise salary details of the first petitioner are

tabulated hereunder:

                 I                 II                  III
            Months         Amount in Rupees   Date of transfer

            March, 2020    13087.00           19.03.2020
            April, 2020    11587.00           07.04.2020
            May, 2020      13087.00           12.05.2020
            June, 2020     13087.00           23.06.2020
            July, 2020     12435.00           23.07.2020

The bank account statements of the first petitioner herein

would clinchingly show that the amount was credited to the MSM,J WP.No.13551 of 2020

account of the first petitioner by departmental transfer on the

respective dates shown in Column No.III of the table. The details of

the departmental transfer NEFT number was also furnished in the

said bank statement. Similarly, the bank account statement of the

second petitioner issued by State Bank of India disclosed transfer

of amount from the department on various dates and the details

are not required to be mentioned, as respondents admitted about

engaging the petitioners as members of NMR. Even NMRs are being

paid daily wage on monthly basis and such entries discloses that

the petitioners are only members of Nominal Muster Rolls and they

are not entitled to claim any right to continue in service.

Yet, the contention of the learned counsel for the petitioners

is that, when the petitioners were engaged as NMRs and later their

services were converted into salesman without issuing any order of

appointment, they cannot be removed from service, except by due

process of law i.e. initiating enquiry.

The contention of the learned counsel for the petitioners

cannot be accepted for the reason that, the petitioners failed to

prove that the services of the petitioners were converted into

salesman on regular basis from NMR by producing any iota of

evidence. Therefore, the contention of the learned counsel for the

petitioners that the services of the petitioners were converted into

salesman from NMR is hereby rejected and that this Court cannot

decide such disputed question of fact while exercising power under

Article 226 of the Constitution of India, while holding that the

petitioners services were engaged as Nominal Muster Rolls.

MSM,J WP.No.13551 of 2020

Members of Nominal Muster Rolls are only being paid daily

wage as and when work is available in the shop. The second

respondent can disengage their services at any time, if it feels that

their services are not necessary and no notice is required to be

issued for removal of these petitioners treating them as NMRs.

Their services are not governed by any Rules. Hence, no procedure

is specified by the State for removal of such NMRs. Therefore,

failure to issue notice in compliance of alleged principles of natural

justice is not a ground to declare the action of the second

respondent as illegal and arbitrary, since the petitioners are daily

wage earners engaged by the second respondent as NMRs. They

have no right to continue in service when there is no work in the

shop and when their services are not required by the second

respondent, refusal to engage the services of the petitioners by the

second respondent is not an illegality.

Learned counsel for the petitioners placed reliance on the

judgment of the Division Bench of High Court of Judicature at

Hyderabad for the State of Telangana and State of Andhra

Pradesh, in Gangikuntal Sridhar and others v. State of Andhra

Pradesh1. In the facts of the above case, Aarogya Mitras who were

working under the deed of trust namely, Aarogyasri Health Care

Trust were removed on the ground of misconduct without issuing

any notice prior before removal and the same was questioned

before the High Court on various grounds, including violation of

principles of natural justice. The Division Bench held that, if

anyone of the appellants therein are found committing any

2017 (2) ALT 485 (D.B) MSM,J WP.No.13551 of 2020

misconduct or their services are found not satisfactory, the Trust

shall be free to proceed against them by following the principles of

natural justice.

Taking advantage of this principle, learned counsel for the

petitioners would contend that, the services of the petitioners were

disengaged by the second respondent without following due

procedure. In the facts of the judgment in Gangikuntal Sridhar

and others v. State of Andhra Pradesh (referred supra), the

appellants could establish that they are working in Aarogya Sri

Health Care Trust on outsourcing basis. Their services were

terminated without following the principles of natural justice. But,

in the present case, the petitioners could establish that their

services were engaged as NMRs, but failed to establish that their

services are engaged as salesman under the control of the second

respondent. In the absence of proof of conversion of petitioners

services from NMRs to salesman, this Court can conclude based on

the material that these petitioners were working as NMRs. For

removal of NMRs, principles of natural justice are not required to

be followed, as engagement of their services is purely need based.

Their services can be engaged or disengaged by the second

respondent depending upon the work exigency. Mere transfer of

amount to the account of the petitioners by the second respondent

on monthly basis is not sufficient to conclude that the services of

the petitioners were converted into salesman from NMRs and it

represents the total accrued amount paid to the petitioners for that

particular month as daily wage. Therefore, the petitioners are not

entitled to claim any notice prior to their removal and the principle MSM,J WP.No.13551 of 2020

laid down in Gangikuntal Sridhar and others v. State of Andhra

Pradesh (referred supra) will have no application to the present

facts of the case, as distinguished in earlier paragraphs.

On overall consideration of the material on record, it is

evident that the petitioners were engaged in the services of

Nominal Muster Rolls and this fact is admitted by the second

respondent in the counter affidavit. Though the petitioners

contended that their services were converted from NMRs to

salesman, the same is not substantiated by any material and this

Court cannot inquire into the disputed question of fact, while

exercising power of judicial review under Article 226 of the

Constitution of India. Apart from that, the petitioners are not

required to serve any notice, affording reasonable opportunity to

disengage the services as NMRs, as there are no rules prescribing

issue of notice to NMR to disengage their services. Hence,

disengaging the services of these petitioners on account of

indulgence in illegal sale of liquor and registration of Crime No.158

of 2020 on the file of Nidamarru Police Station, West Godavari

District is sufficient to disengage the services of these petitioners.

As per the allegations made in the affidavit, the petitioners

were engaged as members of NMRs and later, engaged as salesman

on regular basis without any appointment order. The very

appointment is contrary to provisions in the Andhra Pradesh

(Regulation of Appointments to Public Services and Rationalization

of Staff Pattern and Pay Structure) Act, 1994 (for short 'the Act').

MSM,J WP.No.13551 of 2020

The word 'daily wage employee' is defined under Section 2(ii)

of the Act. 'Daily wage employee' means any person who is

employed in any public service on the basis of payment of daily

wages and includes a person employed on the basis of nominal

muster roll or consolidated pay either, on full-time or part-time or

piece rate basis or as a work charged employee and any other

similar category of employees by whatever designation called other

than those who are selected and appointed in a sanctioned post in

accordance with the relevant rules on regular basis.

The pleadings of these petitioners and respondents would

directly attract the term 'daily wage employee' as defined under

Section 2(ii) of the Act. Daily wage appointments and regularization

of temporary appointments are prohibited by Section 3 of the Act.

According to Section 3 of the Act:-

(1) The appointment of any person in any public service to any post, in any class, category or grade as a daily wage employee is hereby prohibited.

(2) No temporary, appointment shall be made in any public service to any post, in any class, category or grade without the prior permission of the competent authority and without the name of the concerned candidate being sponsored by the Employment Exchange

Therefore, the very appointment of these petitioners either as

Nominal Muster Rolls on temporary basis or regular basis as

salesman in the wine shop of the second respondent is contrary to

Section 3 of the Act.

According to Section 6 of the Act, any person who

contravenes the provisions of the Act is liable for penalties.

MSM,J WP.No.13551 of 2020

(1) Where any holder of an elective office or any officer or authority makes any appointment in contravention of the provisions of this Act-

(a) it shall be deemed in the case of the holder of an elective office that he has abused his position or power and accordingly the competent authority shall initiate proceedings for his removal; and

(b) in the case of an officer, or authority it shall be deemed that he is guilty of misconduct and the competent authority shall initiate action under the relevant disciplinary rules.

(2) In addition to taking action under sub-section (1) the pay and allowances paid the person whose appointment is in contravention of the provisions of this Act shall be deemed to be an illegal payment and a loss to the Government or, as the case may be, to the concerned institution and the same shall be recoverable by surcharging the same under the Andhra Pradesh State Audit Act, 1989 (Act 9 of 1989) against the person, officer or authority who makes such appointment in contravention of the provisions of this Act or where such surcharge is not possible under the said Act in accordance with such manner as may he prescribed including as arrears of land revenue.

In the present case, as per the admission made by the

second respondent, admittedly, the petitioners were appointed as

NMRs in contravention to Section 3 of the Act and liable for

punishment prescribed under Section 6 of the Act.

As per the provisions of the Excise Act, or any other law, no

posts are sanctioned to engage the salesman either as NMRs on

daily wage basis or on regular basis. In the absence of any

sanctioned posts of salesman or supervisors, engaging the services

of these petitioners in any mode, including appointment on regular

basis, as contended by these petitioners, though they are initially

appointed as NMRs, is a serious illegality and in contravention to

Section 3 of the Act, thereby, the second respondent is liable for

penalties prima facie. Thus, the petitioners have no subsisting legal

right enforceable in the Court of law, as their appointment itself is

illegal and in contravention to Section 3 of the Act.

MSM,J WP.No.13551 of 2020

The jurisdiction of this Court under Article 226 of

Constitution of India is limited and such power can be exercised

only certain circumstances which are enumerated in "West Bengal

Central School Service Commission v. Abdul Halim2" wherein

the Apex Court reiterated the following principles of judicial review.

"It is well settled that the High Court in exercise of jurisdiction Under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention Under Article 226 of the Constitution of India.

In any case, the High Court exercises its extraordinary jurisdiction Under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the Petitioner, or whether there has been lapse in performance by the Respondents of a legal duty.

The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.

In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.

The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.

However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect."

(2019) 18 SCC 39 MSM,J WP.No.13551 of 2020

Yet issuance of Writ of Mandamus is purely discretionary

and the same cannot be issued as a matter of course.

In "State of Kerala v. A.Lakshmi Kutty3", the Hon'ble

Supreme Court held that a Writ of Mandamus is not a writ of

course or a writ of right but is, as a rule, discretionary. There must

be a judicially enforceable right for the enforcement of which a

mandamus will lie. The legal right to enforce the performance of a

duty must be in the applicant himself. In general, therefore, the

Court will only enforce the performance of statutory duties by

public bodies on application of a person who can show that he has

himself a legal right to insist on such performance. The existence

of a right is the foundation of the jurisdiction of a Court to issue a

writ of Mandamus. In "Raisa Begum v. State of U.P.4", the

Allahabad High Court has held that certain conditions have to be

satisfied before a writ of mandamus is issued. The petitioner for a

writ of mandamus must show that he has a legal right to compel

the respondent to do or abstain from doing something. There must

be in the petitioner a right to compel the performance of some duty

cast on the respondents. The duty sought to be enforced must

have three qualities. It must be a duty of public nature created by

the provisions of the Constitution or of a statute or some rule of

common law.

Writ of mandamus cannot be issued merely because, a

person is praying for. One must establish the right first and then

he must seek for the prayer to enforce the said right. If there is

failure of duty by the authorities or inaction, one can approach the

1986 (4) SCC 632

1995 All.L.J. 534 MSM,J WP.No.13551 of 2020

Court for a mandamus. The said position is well settled in a series

of decisions.

In "State of U.P. and Ors. v. Harish Chandra and Ors.5"

the Apex Court held as follows:

"10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition."

In "Union of India v. S.B. Vohra6" the Supreme Court

considered the said issue and held that 'for issuing a writ of

mandamus in favour of a person, the person claiming, must

establish his legal right in himself. Then only a writ of mandamus

could be issued against a person, who has a legal duty to perform,

but has failed and/or neglected to do so.

In "Oriental Bank of Commerce v. Sunder Lal Jain7" the

Supreme Court held thus:

"The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:

Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.

Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be

(1996) 9 SCC 309

(2004) 2 SCC 150

(2008) 2 SCC 280 MSM,J WP.No.13551 of 2020

imposed by statute; mandamus lies as well for the enforcement of a common law duty.

Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances."

When a Writ of Mandamus can be issued, has been

summarised in Corpus Juris Secundum, as follows:

"Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective."

(emphasis supplied)

In view of the law declared by various Courts in the

judgments referred supra, this Court cannot interfere while

exercising power of judicial review under Article 226 of the

Constitution of India to issue any direction as sought for by the

petitioners, that too, a Writ of Mandamus can be issued only in the

circumstances enumerated in various judgments referred supra.

Therefore, it is difficult to accept the contention of the petitioners.

MSM,J WP.No.13551 of 2020

In view of my foregoing discussion, I am of the considered

view that the petitioners failed to show that they have no existing

legal right, thereby, this Court cannot issue a direction by way of