Boddu Rathaiah vs The State Of Andhra Pradesh, Rep. ...
2022 Latest Caselaw 8821 AP

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

                  WRIT PETITION No.9631 OF 2014

ORDER:

This Writ Petition is filed under Article 226 of the

Constitution of India for the following relief:-

"To issue writ, order or direction more particularly, one in the nature of Writ of Mandamus declaring the action of the third respondent in issuing the impugned Proceedings No. 1316/SRDS/SPM (DM-1)/541/2013 dated 2.1.2014, in terminating the petitioner contract appointment as an Assistant Project Director, Tenali Cluster, District Water Management Agency (DWMA) Guntur as arbitrary and illegal and set-aside the same and pass such other order."

2. The petitioner was selected as Assistant Project

Director, Tenali Cluster, District Water Management Agency,

Guntur District, in the year 2005, and he has been working as

Assistant Project Director till the date of impugned order dated

02.01.2014. Due to change of Programme Officer from MPDOs

to NREGS staff from March, 2013, the petitioner has been

appointed/instructed to take charge of the post of Programme

Officer for six mandals for wage seekers. It is also the contention

of the petitioner that he has received two awards for best service

for the years 2010-2011 and 2012-2013 from the District

Collector. Basing on the complaint made by the political party, a

Special Social Audit team was appointed and conducted an audit

in his absence and the present impugned proceedings came to

be passed, vide Proceedings No.1316/SRDS/SPM (DM-

1)/541/2013 dated 02.01.2014. As per the impugned

proceedings, one Sri M.Arun Prasad, who was suspended by the

District Project Coordinator (DPC) on 07.02.2012 and the

petitioner herein appointed the wife of the suspended employee

and the suspended employee performed the duties of his wife

Smt. Sowjanya as de facto Field Assistant and during her tenure,

several irregularities were unearthed in the execution of 43

works in the Gram Panchayat and the deviation in those works

was to a tune of Rs.25,43,961/- and basing on the said audit

report, the petitioner herein was terminated. The said

termination order came to be challenged in the present Writ

Petition on the ground that before terminating the services of the

petitioner herein no procedure was followed or issued any show

cause notice or conducted any enquiry and it amounts to

violation of principles of natural justice and prayed to set aside

the impugned proceedings.

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 the petitioner herein was

appointed on contract basis on 20.11.2007 and it comes to an

end on 31.03.2013 and there is no extension of contract

subsequent to 31.03.2013 and that the post of Assistant Project

Director is a fixed tenure post and a disciplinary case is pending

against the petitioner and the contract renewal was kept in

abeyance till the case is disposed of. This respondent has

decided not to extend the term of contract as per Clauses 4, 25

and 33 of the terms and conditions of the contract agreement,

which reads as follows:

"Clause No.4: That this contract is a fixed one and there is no commitment on either side to extend the contract.

Clause No.25: The FTE further agrees that the Commissioner, Rural Development, Government of A.P. Hyderabad is vested with unfettered power to terminate this contract service order without prior notice in the event of FTE is found to be indulged in financial irregularity directly or indirectly or involved in any criminal case, misbehavior, misconduct or dishonest behavior of any such actions detrimental to the interests of the organization.

Clause No.33: Any violation of the conditions mentioned above would result in dispensing with the services of FTE without any notice."

4. Learned counsel for the respondents would further

submit that the relationship between the petitioner and the

respondents is purely on contractual obligation and 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.

5. 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.

6. 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.

2016 (1) ALT 469

7. 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.

8. 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.

9. 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,

(1999) 2 SCC 21

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.

10. 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.

11. 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.

(2011) 15 SCC 180

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

12. 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.

13. 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.

14. 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.9631 OF 2014

Date: 17.11.2022

siva