Nalanda Educational Society Amp ... vs Shaik Mastan Vali, Guntur ...
2021 Latest Caselaw 4902 AP

         IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

     HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
                                &
          HON'BLE MR. JUSTICE M. SATYANARAYANA MURTHY



                     W.A.Nos.1357 & 1406 of 2012

                        (Through physical mode)



Nalanda Educational Society, Siddharth Nagar, Kantepudi Village,
Sattenapalli, Guntur District and another
                                                            ...Appellants

                                  Versus


Shaik Mastan Vali S/o late Shaik Dada Buda Saheb
Near Water Tank, Sattenapalli Mandal & Post,
Guntur District and others
                                                         ... Respondents

Counsel for the Appellants : Mr. Muralidhar Reddy Katram

Counsel for the respondent No.1 : Mr.M.Pitchaiah

COMMON JUDGMENT (ORAL)

Dt: 30.11.2021

(per Prashant Kumar Mishra, CJ)

These two writ appeals arise out of order, dated 08.07.2011,

passed by the learned Single Judge in W.P.No.9705 of 2010 and order,

dated 22.08.2011, passed in Review W.P.M.P.No.32303 of 2011 in

W.P.No.9705 of 2010.

2. While W.A.No.1406 of 2012 is preferred against the main order

passed in W.P.No.9705 of 2010, W.A.No.1357 of 2012 is against the order

of rejection of the appellants' review application in Review

W.P.M.P.No.32303 of 2011 in W.P.No.9705 of 2010.

3. Brief facts of the case are that the writ petitioner was appointed

as Physical Director (PD) on 27.06.2006. He continued in service,

according to the petitioner, till 15.12.2009. Thereafter, the writ

petitioner neither attended the job nor was paid salary. On the other

hand, according to the appellants-management, the writ petitioner

abandoned the service on and after 17.12.2009. Therefore, he was not

paid the salary nor any enquiry was conducted against him.

4. Based on the above undisputed fact that no enquiry has preceded

either before treating the service of the writ petitioner abandoned or

before terminating his services, the learned Single Judge has allowed

the writ petition on the sole ground of violation of principles of natural

justice. The plea of the writ petitioner that no enquiry was conducted

before disallowing him from attending the job and not making payment

of the salary, was not controverted before the writ Court by filing any

counter affidavit. In this view of the matter, the learned Single Judge

also found that the petitioner's statement in the writ affidavit has

remained uncontroverted leaving the Court with no other option but to

accept the plea raised by the petitioner.

5. Mr.Muralidhar Reddy Katram, learned counsel for the appellants

vehemently argued on the basis of law laid down by the Supreme court

in Vijay S.Sathaye v. Indian Airlines Limited1 that when an employee

abandons service unilaterally, it is not required for the employer to issue

an order treating the abandonment of service. According to him, the

2013 (10) SCC 253

present case also involves similar facts. Therefore, the learned Single

Judge ought not to have interfered with the decision taken by the

appellants treating the service of the writ petitioner as abandoned.

6. What is argued before us, as stated in the above paragraph, was

never brought to the notice of the learned Single Judge by filing any

counter affidavit. Such plea cannot be allowed to be raised for the first

time in an intra-court appeal. Even otherwise, in one of the documents,

which is part of the material papers available before us, the Principal of

the appellants-Institution has noted against the column 'Reasons for

leaving' as 'Resignation'. Thus, the appellants are taking inconsistent

and varied stand in respect of the method of termination or the reason

for treating the writ petitioner to be not in service. At one stage, the

writ petitioner is treated to have abandoned the service and in some

other documents, he is treated to have resigned from service without

there being any document placed before this Court that he has resigned

from service.

7. Learned counsel for the appellants also tried to convince us by

arguing that the initial order of appointment was got forged by the writ

petitioner. However, firstly; this plea was not raised before the learned

Single Judge by filing counter affidavit and secondly; as per the

pleadings in the review application, particularly paragraph no.3 thereof,

the writ petitioner was earlier subjected to an enquiry after which he

was terminated on 17.12.2008, but later on, this order of termination

was withdrawn and he was taken back in service. Thus, the

appointment order issued by the management was acted upon and he

was employed with the appellants-Institution. Therefore, the plea of

forgery of appointment order cannot be examined at this stage.

8. For all the aforesaid reasons, there is no force in either of the

writ appeals.

9. Both the Writ Appeals fail and are accordingly dismissed. No

costs. Pending miscellaneous applications, if any, shall stand closed.

PRASHANT KUMAR MISHRA, CJ M.SATYANARAYANA MURTHY, J

RAR