V.Srinivasa Rao, Guntur Dist. vs Prl. Secy., P.R. R.D. Dept. 2 Ors.
2022 Latest Caselaw 8820 AP

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

              WRIT PETITION No.32022 OF 2015
ORDER:

This Writ Petition is filed under Article 226 of the

Constitution of India for the following relief:-

"To issue a Writ or Order or Direction more particularly, one in the nature of Writ of Mandamus, declaring the action of the respondents 2 and 3 in terminating the petitioner from service as arbitrary, illegal and violative of Articles 14 and 21 of the Constitution of India and the rules governing Disciplinary Action employees in MGNRES and consequently direct the respondents to reinstate the petitioner into service, back wages and all other attendant benefits together with the interest at the rate of 12% per annum grant costs of the proceedings and pass such other order."

2. The petitioner was originally appointed as Computer

Operator-cum-Accounts Assistant, vide proceedings dated

20.11.2007 of the 3rd respondent and posted at Macherla and he

worked there for some time and subsequently at Durgi Mandal,

Guntur District till 16.11.2012. On 16.11.2011, the 3rd

respondent issued a notice keeping the petitioner under

temporary out of contract employment on the ground that

certain financial irregularities were detected in the fifth round of

social audit conducted during the period from 07.10.2012 to

19.10.2012 and subsequently, the 3rd respondent issued

proceedings dated 21.01.2013, terminating the petitioner from

service. Aggrieved by the said termination order, the petitioner

herein made an appeal to the 2nd respondent and the same was

allowed vide order dated 15.05.2013 remanding the case to the

3rd respondent to afford an opportunity of being heard and to

decide the case afresh. Thereupon, the 3rd respondent after

hearing the petitioner, passed an order dated 29.07.2013

upholding his earlier order. Aggrieved by the same, the

petitioner again preferred an appeal to the 2nd respondent and

the same was disallowed vide order dated 19.11.2013.

Challenging the orders of termination of services of the petitioner

passed by the 3rd respondent, as upheld by the 2nd respondent,

the present Writ Petition came to be filed on the ground the

impugned order is contrary to law, inconsistent and against the

probabilities of the case.

3. Learned counsel for the 3rd respondent filed counter

on behalf of the 3rd respondent and on behalf of respondents 1

and 2 and he would submit that the petitioner herein has

committed several irregularities and a disciplinary case is

pending against the petitioner. Learned counsel for the

respondents would further submit that the petitioner is infringed

to invoke the extraordinary jurisdiction under Article 226 of the

Constitution of India much less the fundamental rights are

violated. It is also the contention of the respondents that an

appeal is provided under the Society for Rural Development

Services Rules (SRDS Rules) issued vide G.O.Ms.No.338,

Panchayat Raj & Rural Development (RD-III) Department dated

06.09.2008 and there is an alternative remedy to the petitioner

herein provided under SRDS Rules and sought for dismissal of

the Writ Petition.

4. Per contra, learned counsel for the petitioner submits

that it trite law that no incumbent can be dismissed or

terminated during his services without following due procedure

of law, which amounts to violation of principles of natural

justice, when the termination itself casts stigma on the part of

the incumbent, then, the services of an incumbent cannot be

terminated without following due procedure of law much less

without issuing show cause notice and without conducting

enquiry and relied on Rule 6.2 of the SRDS Rules which enjoins

that a delinquent/FTE shall be given 7 days time to rebut the

charges and give evidence in his defence by way of written

submission and on personal hearing. The delinquent/FTE is

provided to rebut the evidence and to give explanation and in the

absence of FTE on the date of given for personal hearing, the

Disciplinary Authority shall conclude the disciplinary

proceedings and pass finally a speaking order based on the

evidence on record duly discussing the evidence. Learned

counsel for the petitioner would further submit that in the

present case, no notice was issued and no personal hearing was

given and no explanation was called for, which is contrary to the

SRDS Rules, hence, prayed to set aside the impugned order, as it

is contrary to the said Rules which amounts to violation of the

principles of natural justice and spelt that the present Writ

Petition is maintainable in view of the violation of the principles

of natural justice.

5. Learned counsel for the petitioner relied on the

judgment of the composite High Court in the case of S.Zabeda

Parveen v. A.P.Women's Co-operative Finance Corporation,

Hyderabad and another1, wherein an issue was framed as

"Whether holding of a regular departmental enquiry against the

petitioner, who was a temporary contract employee, was

necessary?" Learned Judge, after considering the plethora of

judgments of the Hon'ble Apex Court, and set aside the

impugned order and directed the authorities to conduct enquiry

as per Rule 20 of the APCS Rules, 1991.

6. In the case of Radhe Shyam Gupta v. U.P. State Agro

Industries Corporation Limited2, after summing up of the legal

position to the effect that where termination of a temporary

employee or probationer is simpliciter and misconduct was the

motive behind such termination no enquiry is necessary, but

where misconduct constitutes foundation of the termination

order, regular departmental enquiry must precede such

termination.

2016 (1) ALT 469

(1999) 2 SCC 21

7. In Radhe Shyam Gupta's case (2 supra), Hon'ble

Supreme Court determined that when a misconduct constitutes

foundation of the termination order, regular departmental

enquiry must precede such termination. In the present case, it

was attributed to the petitioner that he misappropriated the

amounts, which is a misconduct, hence, a regular departmental

enquiry must precede before such termination.

8. In S.Zabeda Parveen's case (1 supra), the society has

adopted Andhra Pradesh Civil Services (Classification, Control

and Appeal) Rules, 1991 (APCS Rules, 1991). In the said case,

the A.P.Women's Co-operative Finance Corporation has

terminated the services of the petitioner therein deviating the

procedure as contemplated under Section 20 of the APCS Rules,

1991, as such, the composite High Court has set aside the

termination order and directed the disciplinary authority to

conduct enquiry by following Rule 20A of the APCS Rules, 1991,

and directed to conduct enquiry by following the procedure as

contemplated under Rule 20A of the APCS Rules, 1991.

9. Learned counsel for the respondents would rely on

the judgments in the case of U.P.State Textile Corporation Ltd., v.

Suresh Kumar3 and Naripogula Anandaiah v. the State of A.P.4

for the proposition that an employee appointed for a fixed time,

which would have come to an end, no relief beyond that period

could have been given to the employee by the Tribunal or the

High Court.

10. Even in Suresh Kumar's case (3 supra), the Hon'ble

Apex Court held that if the stigma is addressed the regular

enquiry must precede.

11. In the present case, it was attributed/imputed that

the writ petitioner has misappropriated and deviated the funds,

which is a misconduct under the APCS Rules. Hence, the

termination of service is a stigmatic termination and even the

SRDS Rule postulated a procedure for taking disciplinary action

and the disciplinary authority shall duly exercise power to

enforce rules and ethical guidelines, deviation would amount to

violation of natural justice.

(2011) 15 SCC 180

W.A.No.719 of 2016 dated 16.08.2016 AP

12. In view of the same, the impugned order is liable to

be set aside and, accordingly, it is set aside and it is remanded

to the Enquiring Authority to conduct enquiry as contemplated

under the SRDS Rules, issued vide G.O.Ms.No.338 dated

06.09.2008 and the said procedure shall be completed within a

period of three months from the date of receipt of a copy of this

order and the petitioner shall cooperate for the enquiry and if the

petitioner fails to cooperate for the enquiry, the respondents are

at liberty to pass an ex parte order and it is needless to say that

the petitioner is not entitled for any back wages or reinstatement

pending disciplinary enquiry.

13. Accordingly, this Writ Petition is allowed. There shall

be no order as to costs of the Writ Petition.

As a sequel, interlocutory applications pending, if any, in

this Writ Petition shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO

Date: 17.11.2022 siva

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

WRIT PETITION No.32022 OF 2015

Date: 17.11.2022

siva