P.R.S.S.S. Thammayya Naidu vs State Of Andhra Pradesh
2021 Latest Caselaw 1787 AP

      HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


                       W.P.No.5309 of 2021
ORDER:

This writ petition is filed for the following relief:

"To issue an appropriate writ or order or direction more particularly one in the nature of Writ of Mandamus declaring the proceedings in Roc.No.555/2015G4 dated 24.02.2021 issued by the 2nd Respondent canceling the Work Order dated 25.08.2020 is highly illegal, arbitrary and violative of principles of natural justice and accordingly set aside the same with a consequential directions to the Respondents to permit the Petitioner to execute the works as per Work Order dated 25 08 2020...."

This Court has heard Sri Dheera Kanishk, learned

counsel for the petitioner and Sri Manohar Reddy learned

counsel appearing for respondent Nos.2 to 4. For the 1st

respondent, Government Pleader for Municipal

Administration appears.

Counsel for the petitioner points out that the

petitioner's work was terminated by proceedings dated

24.02.2021. He raises two essential contentions (a) that the

termination was not because of any failure in the contract

and (b) that the petitioner was not given a copy of the

complaint submitted by a third party on the basis of which he

was removed.

Learned counsel submits that the petitioner was issued

a work for supplying vehicle/tipper to the town planning

section of the respondent for a period of eight months along

with a driver and five workers. However, he points out that

the petitioner's services were terminated on the basis of a

complaint given by one Sri Ismail Thahir. He admits that

even though the enquiry has taken place, it is not related to

his failure to perform the contract and therefore, he argues

that the termination is bad. It is also submitted that the copy

of the complaint alleged to have been received is not given to

him. Therefore, there is a failure of the rules of natural

justice.

Sri Manohar Reddy, learned standing counsel for the

respondent relies upon the impugned order and points out

that the due process of law was followed. He points out that

the statement of the petitioner is also recorded by the

Commissioner before the impugned order was passed. It is

also clarified that the petitioner participated in the enquiry

and after considering the statements recorded, evidence

gathered etc., the impugned order was passed. He took the

Court through the order dated 24.02.2021 which is impugned

in this writ petition to argue that it is a perfectly reasoned

order passed after considering the facts and the evidence.

Learned counsel for the petitioner also relied upon the

case law, which is filed by him along with a memo vide USR

No.18785 of 2021. The first grievance of the petitioner is

that since the complaint given by the said Sri Ismail Thahir is

not supplied, the petitioner was handicapped in preparing a

reply. It is also argued that rules of natural justice were

totally flouted. On this ground itself, the learned counsel

submitted that the enquiry should be set aside.

However, this Court notices that a show cause notice

was issued on 29.12.2020 to which a reply was issued by the

petitioner on 27.02.2021. Only on 08.01.2021 he gave a

letter requesting for a copy of the complaint. This letter

dated 08.01.2021 appears to have been delivered to the

respondent on 08.02.2021. It is also clear that the

petitioner's statement was recorded on 08.02.2021 in the

Commissioners' chamber. Therefore, this Court holds that

the petitioner participated in the enquiry without any

reservation. The date of service of the letter is also not clear,

whether it is 08.01.2021 or 08.02.2021. This Court,

therefore, holds that it cannot be presumed that there is a

failure of the rules of natural justice. Prejudice also does not

appear to have been caused since the petitioner knew facts

that are alleged against him and also participated in the

enquiry.

However, the second issue alleged by the petitioner is

more important in the opinion of this Court. In the grounds

that are urged, it is very clearly stated that the contract work

has been satisfactorily executed and more than 50% was

completed. In said para (d) of the grounds, it is also urged

that there is no complaint about the execution of the work.

In the course of hearing, learned counsel relied upon a

case law and a case reported in M/s. Pancham Singh v. The

State of Bihar1. In that case, the Full Bench of the Patna

High Court commented upon the cancellation of a contract,

dehorns the terms of the contract. Relying upon

Radhakrishna Agarwal v. State of Bihar2, the Full Bench

held that a contract cannot be cancelled, dehors any of its

terms and that such an action is per se violative of Article 14

of the Constitution of India.

The contract agreement between the parties is also filed.

It is for supply of a tipper with five workers and one driver.

Therefore, the essence of the contract is the supply of vehicle

with workers thereon. However, the ground on which the

action was taken against the petitioner is that on 23.12.2020,

a board of a business venture called Moghal Biryani Palace, is

removed without prior intimation. Later, when the owner

came and met the petitioner, he was abused. This is the gist

1991 SCC Online Part 31

AIR 1977 SC 1496

of the complaint against the petitioner. A show cause notice

was issued; an enquiry was conducted and ultimately, his

contract was terminated. A reading of the clauses of the

contract does not show that the respondents have reserved a

right to cancel the contract in the event of the personal

behavior of the tender/contractor being improper. The order

impugned does not refer to any of the terms and conditions of

the contract which could be relied upon for terminating the

contract. The conduct of the petitioner in removing a board

and not taking care of it is not an issue that is covered by the

terms and conditions of the contract. Even though the

petitioner participated in the said enquiry, it cannot be said

that the respondents have a right to cancel the contract

agreement. The actions of a State or State Authorities should

be informed by a reason and based upon law and the terms of

the contract.

During the course of hearing, no provision of law was

brought to the notice of this Court which would justify the

termination of the order. Similarly, no term of the contract

which would justify the termination in case of such alleged

misconduct/misbehavior is brought to the notice of the

Court.

The mere fact that the petitioner participated in this

interview cannot be held against him. In the opinion of this

Court, the action taken by the respondent is per se illegal and

incorrect. The judgment of the Hon'ble Supreme Court which

is referred to in the Full Bench judgment of the Patna High

Court is in the opinion of this Court is applicable to the facts

of the case. Cancellation of the contract was not for the

breach of any of the terms of the contract. The cancellation is

dehors the terms of the contract and hence, it is held to be

per se illegal. The proceedings dated 24.02.2021 are set

aside.

The counsel for the petitioner argued that the works

were to be completed in March, 2021. In the opinion of this

Court, restoration of the contract and ordering status quo

ante is not really called for. The black mark on the record of

the petitioner in the form of termination of the contract is set

aside without ordering restoration. It is however, left open to

the petitioner to proceed against the respondent-Municipality,

if he so desires for recovery of monetary

compensation/damages etc.

With these observations, the writ petition is allowed. No

order as to costs.

As a sequel, the miscellaneous petitions if any shall

stand dismissed.

________________________ D.V.S.S.SOMAYAJULU,J

Date : 31.03.2021 KLP