Andhra Pradesh Sothern Power ... vs T. Panduranga Vittal,
2021 Latest Caselaw 1623 AP

      IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI


     HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                           &
                 HON'BLE MR. JUSTICE C. PRAVEEN KUMAR

                            WRIT APPEAL No.315 of 2020

                       (Taken up through video conferencing)

Andhra Pradesh Southern Power
Distribution Company Limited,
rep. by its Chairman and Managing Director,
Tirupathi, Chittoor District and 2 Others
                                                                     .. Appellants.

     Versus

T.Panduranga Vittal, S/o. Late Nageswara Rao,
Aged about 42 years, Occ : Unemployee,
R/o. Sai Baba Colony, Madhuranagar,
Vijayawada, Krishna District, A.P. & another                 ..Respondents.


Counsel for the Appellants             : Mr.Y.Nagi Reddy

Counsel for respondent                 : Mr.M.Pitchaiah

Dates of hearing                       : 25.01.2021 & 22.02.2021

Date of pronouncement                  :   20.03.2021


                                  JUDGMENT

(per C. Praveen Kumar, J)

1. Heard Sri Y.Nagi Reddy, learned Standing Counsel for APSPDCL and Sri

M.Pitchaiah, learned counsel for the respondents-writ petitioners.

2. Aggrieved by the order, dated 19.03.2020, in W.P.No.44691 of 2017, the

Andhra Pradesh Southern Power Distribution Company Limited (for short,

'APSPDCL') filed the present appeal.

3. For the sake of convenience, the parties shall be referred to as arrayed in

Writ Petition.

4. A Writ Petition was filed under Article 226 of the Constitution of India

seeking issuance of writ of Mandamus declaring the order

Lr.No.SE/O/VIA/PO/Adm/JAO.I/U2/D.No.331/2016, dated 05.02.2016, issued by

the 3rd respondent i.e., Superintendent Engineer, APSPDCL, Vijayawada, rejecting

absorption of the services, as arbitrary, illegal, violative of Articles 14 and 21 of the

Constitution of India and consequently direct the respondents to absorb the

petitioners into regular services of the respondent-corporation in any suitable post

from the date of eligibility with all consequential benefits.

5. The averments in the affidavit filed in support of the writ petition show that

the first petitioner worked as a contract labour from 01.09.1996 to 31.12.1997 in

erection and dismantling of LTHT lines, including stringing of lines, digging pits,

poles and erecting of transformer structures at various places in Penamaluru of

Patamata Sub-Division, Vijayawada, while the 2nd petitioner worked as contract

labour from 01.02.1996 to 31.03.1998 along with the 1st petitioner. Both of them

worked under the contractor, by name, M.Sambasiva Rao during the above period.

It is averred that service certificates to that effect were also issued and their work

was supervised and controlled by the respondents. On 18.05.1997, the Andhra

Pradesh State Electricity Board framed a scheme for absorption of casual labours

into certain regular posts. As per the scheme, the contract labours have to be

considered for selection and appointment against 50% existing vacancies and

seniority shall be reckoned based on services rendered by the candidates in the

units as per the muster roles or wage register maintained under Contract Labour

(Regulation and Abolition) Act. Pursuant thereto, the 1st respondent in the writ

petition i.e., APSPDCL issued a notification on 25.05.2001 inviting applications

from contract labours for filling up left over vacancies from contract labours who

are in service as on 18.05.1997. The petitioners, along with others, applied for

selection and being unsuccessful, challenged the action of the respondents in Writ

Petition No.22713 of 2004, which was allowed directing the respondents to

consider the case of the petitioners.

6. Aggrieved by the same, APSPDCL (respondent in the writ petition) filed

Writ Appeal No.260 of 2010. By an order, dated 31.03.2015, the Writ Appeal was

disposed of, directing the respondents to verify service particulars with greater

clarity, etc. The inaction on the part of the respondents lead to filing of the

contempt case, which was dismissed on 01.09.2017. After disposal of the

contempt case, the 3rd respondent in the writ petition, who is Superintendent

Engineer, APSPDCL, Vijayawada, issued the impugned proceedings, dated

05.02.2016, rejecting the claim of the petitioners for absorption.

7. Challenging the same, Writ Petition No.44691 of 2017 was filed, which was

allowed on 19.03.2020, directing the respondents to absorb the petitioners, in any

suitable post, with effect from March, 2016 along with all consequential benefits

from that day. Aggrieved by the same, the present appeal is filed by the Andhra

Pradesh Southern Power Distribution Company Limited.

8. Sri Y.Nagi Reddy, learned counsel for the appellants, would submit that

writ petitioners submitted only statement of work done by the contractor, but the

service certificate filed by them does not refer to the agreement number and the

same was not certified by the officer concerned, with reference to the agreement

entered by the contractor. He further pleads that the vigilance reports make it

clear that service certificate produced by the writ petitioners was not genuine, as

the same was manipulated in collusion with the contractor. He further submits

that in view of the order passed in W.P.No.22713 of 2004 and in W.A.No.260 of

2010, the learned Single Judge ought to have dismissed the writ petition in limine.

9. On the other hand, Sri M.Pitchaiah, learned counsel for the respondents-

writ petitioners, would submit that the order under challenge requires no

interference. He submits that Division Bench of this High Court in its order dated

31.03.2015 in Writ Appeal No.260 of 2010, directed the appellants herein to

examine the service certificates filed by the respondents-writ petitioners to

ascertain as to whether they conform to the requirements as per B.P.Ms.No.36,

dated 18.05.1997 and whether the writ petitioners have worked as contract

labours or not, with reference to the agreement entered by the Department with

the contractor. According to him, pursuant to the order passed, the writ

petitioners furnished relevant documents, but the 3rd respondent rejected the

request giving the very same reasons which were not accepted earlier. In so far

as the genuineness of the service certificate is concerned, he would submit that

matter was exhaustively dealt with by this Court in W.P.No.22713 of 2004 and laid

down that vigilance Inspector's report cannot be a ground to reject the application

of contract labours seeking absorption. Since the said finding attained finality,

pleads that order under challenge requires no interference.

10. Before proceeding further it will be appropriate to extract the relevant

portion in the order, dated 31.03.2015, passed by a Division Bench of this Court in

Writ Appeal No.260 of 2010, the same is as under :

"We have perused the order passed by the learned Single Judge and the service certificates produced by the writ petitioners and also other material available on record. The learned Single Judge, while setting aside the order of rejection dated 10.03.2005, directed the respondents therein/appellants herein to consider the cases of the writ petitioners for appointment in terms of B.P.Ms.No.36, dated 18.05.1997, in suitable posts as per their eligibility and fitness. As per the requirement under B.P.Ms.No.36 dated 18.05.1997, the Assistant Divisional Engineer was authorised to certify the service certificates with reference to agreement entered by the Department with the contractors, whether licensed or unlicensed. In that view of the matter, we are of the view that mere attestation by the Assistant Divisional Engineer is not sufficient and the service certificates are to be certified by the concerned Officer with reference to the agreements entered by the Department with the licensed/unlicensed contractors. In view of the same, we deem it appropriate to dispose of the writ appeal permitting the appellants to examine the service certificates filed by the respondent/writ petitioners so as to ascertain whether they conform to the requirements as per B.P.Ms.No.36 dated 18.05.1997 and whether the writ petitioners have worked as contract labour or not, with reference to the agreements entered by the Department with the contractors, before taking a decision. It is open to the respondent/writ petitioners to place the relevant material to substantiate their claim that they worked as contract labour during the relevant time. As the claims of the respondent/writ petitioners are pending, the appellants shall pass appropriate orders in the light of the directions issued in this order, within a period of two months from today."

11. A reading of the above would show that, while disposing of the writ appeal,

a direction was given to the writ petitioners to place relevant material to

substantiate their claim as to whether they worked as contract labours during the

relevant time. As directed by the court, on 13.02.2020, the service particulars of

the petitioners were furnished before the learned Single Judge, which is as under :

MEMO FILED ON BEHALF OF THE PETITIOENRS

It is humbly submitted that as directed by this Hon'ble Court on 13.02.2020,

the service particulars of the petitioners are furnished in a Tabular form, as mentioned

below :

______________________________________________________________________ Sl.No. Name of the Period of Agreement No. Page Nos. in W.P.

Writ Petitioner Employment Material Papers.

______________________________________________________________________

1. T.Panduranga Vittal 01.09.1996 to LS Agreement No.9, 116, 117,

K2 Agreeemnt No.2, Chit Agreement Nos.9 to 26 & 29 to 31

2. S.Anjani Kumar 01.02.1997 to LS Agreement No.20, 119, 120 31.03.1998 K2 Agreement No.2, 134&135

29 to 31 LS Agreement No.35

______________________________________________________________________

Amaravati

Date : 18.02.2020 Counsel for the petitioners.

12. From the above, the plea of the writ petitioners is that the respondents

have wrongly denied their entitlement and that they should be absorbed into

service in terms of G.O., that was in force, at the time of they working as contract

labourers. Though the learned counsel for the appellants Sri Y.Nagi Reddy denied

the genuineness of the same, but the record clearly disclose that the writ

petitioners have furnished information on 23.10.2015 itself. After considering the

said material, the claim of the petitioners was rejected on the ground that the

service certificate does not refer to the agreement numbers and the same was not

attested by the officer concerned.

13. But, from a perusal of the letter, dated 30.07.2015, addressed by the

Divisional Electrical Engineer to the 3rd respondent - Superintendent Engineer, it is

apparent that agreements were identified and four numbers of M-books were also

traced out. Though the averments in the counter filed by the writ appellants show

that on verification of the available records, no material was found and that

necessary orders were issued basing on the available records, but the material,

dated 13.02.2020, filed by the petitioners, pursuant to an order of the High Court,

would reveal the agreement numbers, employment period etc. Therefore, it

cannot be said that no documents were available to verify. In fact, on 23.04.2015,

the writ petitioners addressed a letter to the 3rd respondent seeking

implementation of the order in Writ Appeal No.260 of 2010, wherein they

furnished details of the agreements, nature of work, the sub-division/section

where they were employed. On the very same day, another letter was addressed

by both the petitioners giving a tabular statement of the contracts executed by the

contractor with whom the petitioners have worked. The letter, dated 30.07.2015,

addressed by the Divisional Electrical Engineer also gives a tabular statement of

the work executed by the contractor from the year 1996 to 1998. In fact, the

learned Single Judge also referred to the memo filed by the petitioners disclosing

the agreements and the period for which they worked with the contractor.

14. Therefore, plea taken by the writ appellants that no records are available

to come to a conclusion that the writ petitioners have entered into an agreement

with the contractor cannot be accepted. As seen from the records, the records,

which were maintained, are not placed on record. No reasons are forthcoming as

to why the said records are not available. It is difficult to digest the plea that the

records are missing from the office. It is not a sheet of paper to say it was

misplaced. Things would have been different had any responsibility is fixed on a

person responsible for the missing of the records and that action has been

initiated against said person for missing of the records. But that is not the case of

the writ appellants. Hence, basing on the records produced by the petitioners,

which gets support from the letter addressed by the Divisional Electrical Engineer

to the Superintending Engineer, showing the works executed by the contractor

and the letters addressed to the 3rd respondent about the details of the

agreements, nature of work etc., and the contents of M.Book, we do not find any

reason to interfere with the order impugned in the Writ Appeal.

15. Accordingly, the Writ Appeal is dismissed. No costs.

As a sequel, all the pending miscellaneous applications shall stand

closed.

ARUP KUMAR GOSWAMI, CJ                               C. PRAVEEN KUMAR, J

                                                                             skmr





       IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI


  HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                  &
            HON'BLE MR. JUSTICE C. PRAVEEN KUMAR




                 WRIT APPEAL No.315 of 2020
               (per Hon'ble Mr.Justice C.Praveen Kumar)




Skmr

                          Date : 20.03.2021