HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.29460 of 2015
ORDER :
This petition is filed under Article 226 of the Constitution
of India claiming the following relief:-
"to issue a writ order or direction more particularly one in the nature of WRIT OF MANDAMUS declaring the impugned proceedings in RC.No.315/2015/E6/HR ,dated 01.08.2015 passed by the 4th respondent thereby removed the petitioner from the post of Field Assistant working in Jarajam Village, Etcherla Mandal, Srikakulam District, without conducting any enquiry and without considering his detailed explanation dated 19.05.2015, as illegal, irregular, arbitrary, violative of principles of natural justice and offends Articles 14 and 21 of Constitution of India and consequently direct the 4th respondent to reinstate the petitioner into service for the said post and pass such other order or orders."
2. The case of the petitioner is that he was appointed as
Field Assistant in Jarajam Village, Etcherla Mandal,
Srikakulam District under Mahatma Gandhi National Rural
Employment Guarantee Scheme (MGNREGS) by the 4th
respondent in the year 2007 and since then he has discharging
his duties with utmost satisfaction of his superiors and there
was no adverse remarks from any corner till date. However, the
4th respondent issued Notice in No.315/2015/E6/HR, dated
02.05.2015 suspending the petitioner temporarily from the
post of Field Assistant without issuing any notice and invited
objections from the petitioner. In the said notice, the 4th
respondent has leveled three charges against the petitioner and
asked him to show cause within seven days from the date of
receipt of the said notice. Thereafter, the petitioner has 2
submitted detailed explanation dated 19.05.2015. The
petitioner stated that since 8 years he was working as Field
Assistant and for total 49 groups from January 2015 to till
today, a total 540 workers are working. On 29.04.2015 when
the 4th respondent inspected the working place it was noticed
that one worker is attended in place of another worker and due
to delay in sending D-Muster, the said mistake was considered
as primary mistake and further stated that during the
inspection the petitioner was unable to attend work in the
morning due to his brother-in-laws marriage and stated that
the petitioner family is depending on the aforesaid post and
further requested to issue orders to reinstate the petitioner into
service.
It is stated that on 19.05.2015, the 4th respondent did
not conduct any enquiry and without considering the petitioner
explanation dated 19.05.2015 issued the impugned
proceedings dated 01.08.2015 thereby removed the petitioner
from the post of Field Assistant. The same was served on the
petitioner on 11.08.2015. It is stated that the 4th respondent
did not mention in its impugned order that he conducted
detailed enquiry in the presence of employment scheme
workers in the village for the aforesaid charges leveled against
the petitioner. Due to political pressure, the 4th respondent
has issued the impugned proceedings dated 01.08.2015
thereby removed the petitioner from the aforesaid post without
conducting enquiry and without considering the petitioner's
detailed explanation dated 19.05.2015 is nothing but violation 3
of principles of natural justice which is not permissible under
law and the said proceedings are liable to be set aside. Hence,
the present writ petition.
3. The counter affidavit is filed by the respondents inter
alia contending that the petitioner was appointed as Field
Assistant in Jarajam Gram Panchyat, Etcherla Mandal,
Srikakulam District in the year 2007 on contract basis for a
period of one year under MGNREGS and the contract
agreement was extended year after year and it comes to end by
30.06.2015. The relationship between the parties is purely
contractual and the petitioner cannot invoke the writ
jurisdiction of this Court under Article 226 of Constitution of
India as no legal right of the petitioner much less fundamental
right of the petitioner has been violated. It is submitted that
the 4th respondent inspected the works executed in Jarajam
Gram Panchyat, Etcherla Mandal on 21.4.2015 and found that
the petitioner was negligent the following issues:
Charge - I : The Field Assistant failed to provide minimum facilities to the workers in the working place.
Charge- II : It was noticed that the workers of about 450 of total 49 groups doing works in Jarajapuvani Cheruvu and a total of 50 in number were attended instead of original workers.
Charge - III : It was noticed that in the Jarajam Gram Panchayat the mates are negligence in their duties and the field assistant is negligent in sending D-Muster.
It is submitted that the 4th respondent issued
Suspension-cum-show cause notice on 02.05.2015 and also 4
providing opportunity for personal hearing. Thereafter, the
petitioner attended personal hearing on 19.05.2015 and
submitted his explanation. After verifying the entire records,
the 4th respondent passed speaking orders and this respondent
following the procedure laid down the Circular
No.666/EGS(P)/2012, dated 08.01.2013 with relevant rules.
Hence, prayed to dismiss the writ petition.
4. Heard Sri Srinivas Ambati, learned counsel appearing
for the petitioner and learned Government Pleader for
Panchayat Raj appearing for the respondents No.1 and 2; Sri
M.S.R. Chandra Murthy, learned Standing Counsel for
MGNREGS appearing for the respondents no.3 and 4.
5. The main argument of learned counsel for the
petitioner is that the petitioner was appointed as Field
Assistant in Jarajam Village, Etcherla Mandal under MGNREG
Scheme by the 4th respondent in the year 2007 and
discharging his duties with utmost satisfaction of his superiors
and there are no adverse remarks from any corner. However,
the 4th respondent has suspended the petitioner vide Notice in
No.315/2015/E6/HR, dated 02.05.2015 and called for his
objections. Thereafter, the petitioner submitted his detailed
explanation on 19.05.2015. However, the 4th respondent did
not conduct elaborate enquiry and without considering the
petitioner's explanation dated 19.05.2015, issued the
impugned proceedings in Rc.No.315/2015/E6/HR, dated 5
01.08.2015 thereby removed the petitioner, which is not
permissible under law.
6. Learned counsel further submits that alternative
remedy is available in view of the judgment of Hon'ble Supreme
Court reported in Whirlpool Corporation Vs Registrar of
Trade Marks, Mumbai and others1, wherein the Hon'ble Apex
Court held that "a Writ Petition is maintainable for the
enforcement of Fundamental Rights or violation of principles of
natural justice or where the order of proceedings are wholly
without jurisdiction or the vires of the Act is challenged."
7. Learned counsel mainly contends that though the
petitioner submitted his written explanation, the same was not
considered, which is not permissible under law and falls under
violation of principles of natural justice. He also relied upon a
judgment of learned Single Judge of this Court in Nakka
Suribabu Vs. State of Andhra Pradesh and 2 others2 ,
wherein this Court held that " it should be noted that the 3rd
respondent has not discussed the contents in the written
explanation as well as the previous reports and has not given
reasons as to how he was not satisfied with the submissions
made in the explanation and how the findings in the previous
reports were not convicting. Most importantly, he has not
mentioned as to how the complaint allegations were established
and what was the material which weighed with him to come to
such conclusion. The order shows, no personal hearing seems
1 AIR 1999 SC 22 - MANU/SC/06641/1998 2 W.P.no.12941 of 2020 dated 16.09.2020 6
to have been accorded to the petitioner. Therefore it is needless
to emphasize the order is devoid of reasons and bereft of
following the principles of natural justice."
8. On the other hand, learned Standing Counsel argued
that the petitioner was negligent in discharging his duties and
therefore the 4th respondent issued suspension-cum-show
cause notice dated 02.05.2015 and also providing opportunity
for personal hearing and the petitioner has also attended the
personal hearing on 19.05.2015. After verifying the entire
records, the 4th respondent issued the impugned order and
hence there is no reason to intervene with the order impugned.
They further submitted that as per Rules and Guidelines
contained in Field Assistants Human Resource Policy (FAHRP),
Annexure to Circular No.666/EGS(P)/2012, dated
08.01.20123, an appeal is provided against the order passed
by the Project Director and in view of the availability of the
efficacious remedy, the writ petition is not maintainable and
thus prayed to dismiss the writ petition.
9. After hearing the arguments of both the counsels and
on a close scrutiny of the impugned order dated 01.08.2015
show, as rightly argued by the learned counsel for the
petitioner, after noting in detail the allegations in the
complaint, the 4th respondent has jumped into the conclusion
stating that on seeing the explanation and previous enquiry
reports, he found the petitioner violated the conditions under
Disciplinary Rules. He accordingly terminated the petitioner 7
from the post of Field Assistant. It should be noted that the 4th
respondent has not discussed the contents in the detailed
explanation as well as the previous reports and has not given
reasons as to how he was not satisfied with the submissions
made in the explanation and how the findings in the previous
reports were not convincing. Most importantly, he has not
mentioned as to how the complaint allegations were
established and what was the material which weighed with him
to come to such conclusion. Therefore, it is needless to
emphasize the order is devoid of reasons and bereft of following
the principles of natural justice. In similar circumstances, a
learned Single Judge of High Court of Andhra Pradesh at
Hyderabad, having found that proper opportunity of hearing
was afforded to the petitioner herein and his explanation was
not considered by the authority, set aside the impugned order
of termination of the petitioner therein from the service and
directed the concerned authority to pass appropriate order
after affording a personal hearing to the petitioner. The said
order squarely applies to the facts of the case on hand.
10. No doubt, it is argued by learned counsel for the
respondents No.3 and 4 that an appeal provision is provided in
the concerned rules and thereby the writ is not maintainable. I
am not convinced with the argument of the learned counsel for
the respondents, for the reason, in the instant case there is a
discernible violation of principles of natural justice as noted
supra. Though admittedly, the petitioner submitted his written
explanation, the same was not considered and no personal 8
hearing was also granted to the petitioner at the time of
enquiry. Therefore, the writ petition is maintainable. The
power to issue prerogative writs under Article 226 of
Constitution of India is plenary in nature and is not limited by
any other provision of the Constitution.
11. In view of the foregoing reasons, the Writ Petition is
allowed and the impugned proceedings in Rc.No.315/ 2015/
E6/HR, dated 01.08.2015 passed by the 4th respondent are
set aside and remanded back the matter to the 4th respondent,
and further the 4th respondent is directed to consider the
written explanation of the petitioner and other relevant
material and afford a elaborate personal hearing to the
petitioner and pass an appropriate order strictly in accordance
with the governing law and rules as expeditiously as possible
but not later than eight (08) weeks from the date of receipt of a
copy of this order. No costs.
As a sequel, interlocutory applications, if any pending,
shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : 02 -03-2022 Gvl 9
HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.29460 of 2015
Date : 02 .03.2022
Gvl 10
without considering the petitioner's detailed explanantion
found that the petitioner not providing minimum needs to the
wage seekers Ex. Drinking water etc., 50 wage seekers working
instead of original wage seekers and the petitioner negligent to
submit the D-Muster, it will be for delaying payments of wages
to the wage seekers. Therefore, the 4th respondent terminated
the service of the petitioner vide proceedings
Rc.No.315/2015/E6/HR, dated 01.08.2015.
Even though alternative remedy is available, a writ is
maintainable in view of the judgment in Whirlpool Corporation
Vs Registrar of Trade Marks, where the Hon'ble Supreme Court
held that a Writ petition is maintainable for the enforcement of
Fundamental Rights or violation of prinples of natural justice
or where the order of proceedigns are wholly without jurdiction
or the vires of the Act is challenged.
illegal, arbitrary.
11
has worked as Work Inspector in the respondents' organization
initially at Kuderu vilalte and Mandal, Anantapur from
January 1985 to April, 1986 and subsequently he was made
In-charge Assistant Engineer of Rayadurg of Anantapur
District. While he was working at Rayadurg, the 3rd
respondent officials have given a complaint alleging that an
amount of Rs.1,33,000/- has been misappropriated by the
petitioner at Rayadurg and Dharmavaram and the same were
registered as Crime No.17 of 1989 of Rayadurg Police Station
and Crime No.24 of 1989 of Dharmavaram Police station, and
basing on the said complaints, the petitioner was terminated
from service on 03.05.1989. Subsequently it was proved that
no such misappropriation has been occurred and the cases
filed by mistake of fact and as such the same were withdrawn
by the 3rd respondent vide letter No.RC MC1 No.1818/91,
dated 02.07.1992. Basing on the above, the 1st respondent has
written a letter to the 2nd respondent vide letter
No.1301/RH1/93, dated 05.05.1995 asking them to reinstate
the petitioner into service with immediate effect.
It is stated that in spite of the 1st respondent's letter
dated 05.05.1995, the petitioner was not reinstated into
service. Thereafter, as the petitioner made several requests
and representations to the respondents, the 1st respondent
addressed a letter to the 2nd respondent referring his 12
representations dated 28.06.2010 and 29.01.2011, asking for
appointment to the petitioner as Work Inspector afresh on
Outsourcing purely on temporary basis subject to obtaining
irrevocable undertaking from the petitioner that the petitioner
would not claim his earlier service/seniority in the cadre of
Work Inspector, condonation of break-in service and
consequential benefits thereon, but the petitioner did not give
any such undertaking. Even then, the 2nd respondent has
appointed the petitioner on 02.06.2011 only as Outsourcing
Work Inspector on temporary basis without considering the
continuous persuasion and representations.
It is stated that prior to termination of the petitioner, he
has attended to the Test and Interviews conducted for the post
Assistant Engineer on direct recruitment and secured
99 ½ marks and placed second position in the merit list of the
OCs. But subsequent to his termination, he lost every
opportunity in his career and now he has grown up to the age
of 46 years and is not eligible for any appointment in the
Government Post. Whereas, his colleagues who have been
regularized in the year 1991 vide G.O.Ms.No.182 Housing (RH)
Department, dated 13.11.1991, who worked on par with the
petitioner, are now in high positions and promotions. It is
stated that without there being any mistake or offence on his
part, but for the vague news item complaints and taking action
in irresponsible way without even getting clarified or enquired
before initiating any action by the respondent, the petitioner
lost his precious life and career. Thereafter, again the 13
petitioner sent a representation dated 27.01.2012 requesting to
reconsider his case. But the respondents did not take any
action. Hence, the present writ petition.
3. Heard Sri J.U.M.V. Prasad, learned counsel for the
petitioner and Sri E.V. Jagannadha Rao, learned Standing
Counsel for APSHC Limited appearing for the respondents.
4. Learned counsel for the petitioner submitted that
even though the letter No.103/RH1/93, dated 05.05.1995
issued by the respondents for reinstatement of the petitioner,
they did not consider the petitioner to reinstate into service
and hence, requests to consider the case of the petitioner.
5. Learned Standing Counsel submits that they filed
Memo, dated 01.02.2022 along with Service Agreement dated
13.05.2011 between the Outsourcing Agency i.e., The
Anantapur District Computer Data Entry Operators Welfare
Association, Anantapur and the petitioner with an undertaking
that petitioner should join in service subject to the terms and
conditions. He stated that as per this undertaking, the
petitioner joined in service in the year 2011 and the contract
period is ONE year. Now he is continuing in service and
drawing salary. But surprisingly, the petitioner filed the
present writ petition questioning his reinstatement into service
in the respondents' organization, which is not maintainable
under law. Hence, prayed to dismiss the writ petition. 14
6. In reply, learned counsel for the petitioner submits
that the said Agreement filed by the respondents is only in
collusion with the Outsourcing Agency, it is not at all
acceptable and prays to allow the petition by giving direction to
the respondents for reinstating the petitioner into service and
for grant of consequential reliefs as prayed for.
7. It is an admitted fact that the petitioner joined in
service as per Service Agreement in the year 2011. While
disputing the same, the petitioner never raised this issue in his
affidavit, approached this Court. On filing the undertaking by
the respondents only, the petitioner is giving explanation
stating that undertaking was obtained by way of fraud and
collusion.
8. This Court, having perused the entire material on
record especially the Memo filed by the 2nd respondent, which
is taken on file that the petitioner, as per Clause(6) of the
Terms and Conditions, he was agreed that he will not claim his
earlier service/seniority in the cadre of Work Inspector,
condonation of break in service and consequential benefits
thereon as stipulated in Government letter,
Rc.No.2224/U&IAY.A2/2010, dated 11.04.2011 and letter
Rc.No.8393/ APSHCL/ Vig(3)/ATP/2010, dated 03.05.2011 of
the Managing Director, AP State Housing Corporation Limited,
Hyderabad and now the petitioner by suppressing the above
fact came to this Court with another plea which this Court
cannot entertain its jurisdiction under the Article 226 of 15
Constitution of India since he has no locus poenitentiae to
plead at this moment and principle of estoppel while applied to
him, this writ petition cannot be maintainable and devoid of
merit and hence it is liable to be dismissed.
9. Accordingly, the Writ Petition is dismissed. No order
as to costs.
As a sequel, all the pending miscellaneous applications
shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : -02-2022
Gvl
16
HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.6333 of 2012
Date : .02.2022
Gvl
