B. Venkata Subbamma, vs Chief Secretary Secondary School ...
2022 Latest Caselaw 8846 AP

 HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

                 WRIT PETITION No. 25186 of 2021

ORDER:

Heard Sri Y. Koteswara Rao, learned counsel for the petitioner,

learned Government Pleader for Services-I appearing for the official

respondents, and Sri K.V. Raghu Veer, learned standing counsel

appearing for the 4th respondent.

2. This writ petition is filed to declare the action of the 4th

respondent in issuing the proceedings dated 07.04.2021 ordering the

petitioner to pay a sum of Rs.1,61,719/- and keeping her under

suspension till payment of the said amount, as illegal and arbitrary.

3. In brief, the case of the petitioner is that she was appointed as a

Teacher on contract basis on 11.10.2011 and he worked for nearly ten

years without any remark or blemish. On 05.02.2018, she was

appointed as a Special Officer in K.G.B.V. Residential School at

Kolimigundla, Kurnool District, and worked till 19.11.2019. While so,

on 27.10.2019, the 3rd respondent issued a show cause notice

dated 31.10.2019 calling upon the petitioner to submit an explanation

within three days, on the allegations that the Moment Register of

students was not maintained, the Stock Register was not maintained

NV,J W.P.No.25186 of 2021

properly, ANM & PET were not available, etc., for which the petitioner

submitted a detailed representation on 01.11.2019 and stated facts and

circumstances. Subsequently, i.e., on 16.11.2019 the 3rd respondent also

issued proceedings dated 16.11.2019 relieving the petitioner from duties

with immediate effect. It is also the case of the petitioner that on

28.03.2020 an enquiry was conducted by a Committee and a report was

filed by the Committee. Basing on the said report, the 4th respondent

issued a show cause notice dated 15.06.2020 calling upon the petitioner

to explain as to why the disciplinary action should not be taken against

her for her negligence in discharge of duties and for misappropriation of

funds. On 18.06.2020, the petitioner gave a detailed explanation to the

said show cause notice. Without taking into consideration of the

explanation submitted by the petitioner, on 29.09.2020 the 5th

respondent passed an order keeping the petitioner under suspension till

the misappropriated amounts are recovered and also to remit an amount

of Rs.1,61,719/-. Thereafter, on the instructions of the 6th respondent,

the petitioner attended an enquiry held on 22.02.2021 and pleaded that

she never committed any mistake. Finally, on 07.04.2021, the 4th

respondent issued the impugned proceedings instructing the petitioner to

remit an amount of Rs.1,61,719/- in the name of the 5th respondent.

Hence the writ petition.

NV,J W.P.No.25186 of 2021

4. The 4th respondent filed a counter affidavit wherein it is stated

that the 5th respondent instructed the Joint Director, Animal Husbandry,

Kurnool, to visit the KGBV, Kalimgundla and to conduct enquiry on the

irregularities made by the petitioner and one Smt. C.Harathi, Accountant

of said institution. The Enquiry Officer visited the school on 31.12.2019

and conducted a preliminary enquiry. The Enquiry Officer stated that

the both the petitioner and the Accountant marked excess attendance of

the students and claimed DIET charges and they committed

irregularities and requested to take disciplinary action against them vide

letter dated 04.01.2020. The same was submitted to the State Project

Director, APSS, Amaravati vide letter dated 28.01.2020 for taking

necessary action. As per the orders of the State Project Officer, a

Committee was constituted to conduct a detailed enquiry on the

irregularities committed by the petitioner and the Accountant and for

submission of a report. The Committee conducted a detailed enquiry

and submitted a detailed report vide letter dated 28.03.2020 stating that

the petitioner committed irregularities in collusion with the Accountant

and the petitioner was negligent in discharge of her duties. Basing on the

enquiry report, a show cause notice dated 15.06.2020 was issued to the

petitioner to submit an explanation. Subsequently, on the

representations of the petitioner, the 5th respondent appointed the 6th

NV,J W.P.No.25186 of 2021

respondent as an Enquiry Officer to cause enquiry on the irregularities

committed by the petitioner and the Accountant of the School. The 6th

respondent also conducted enquiry and submitted a report stating that

the petitioner misappropriated the funds and committed irregularities in

discharging her duties. Pursuant thereto and as per the orders of the 5th

respondent, the 4th respondent issued proceedings dated 07.04.2021

instructing the petitioner to remit an amount of Rs.1,61,719/-.

i) It is also stated that the State Project Director, APSS, Amaravati,

issued certain guidelines vide proceedings dated 24.04.2019 for

reengaging the services of employees on outsourcing/contract basis in

SSA for the year 2019-2020 and also issued instructions to obtain

agreements from the contract staff only, to the effect that they will abide

by the conditions of the SSA and they are liable for withdrawal of

contract without any notice, if they deviated any one of the conditions

including misappropriation of the funds and if their services are not

satisfactory.

ii) For the reasons stated above, the petitioner is not entitled to seek

any relief from this Court and there are no merits in the writ petition and

the same is liable to be dismissed.

NV,J W.P.No.25186 of 2021

5. Learned counsel for the petitioner would submit that the enquiry

was not conducted as per the Rules and the petitioner was not issued any

charge-memo; the statements of the witnesses were not recorded in the

presence of the petitioner so as to enable the petitioner to cross-examine

the witnesses; the copies of statements of the witnesses were also not

supplied to the petitioner along with the show cause notice, thereby, the

petitioner lost the opportunity of giving a detailed and comprehensive

explanation to the show cause notice; the method and manner of arriving

the misappropriated amount is not correct; the entire report of the

Committee was vitiated and therefore it could not be the basis for taking

any action against the petitioner; and the subsistence allowance was not

paid to the petitioner during the suspension period. He, therefore, prays

to allow the writ petition.

6. On the other hand, learned Government Pleader for Services-I

and learned standing counsel appearing for the 4th respondent would

submit that in the presence of the petitioner, the enquiry was conducted

and the statements of the witnesses were recorded and the petitioner was

also given an opportunity to cross-examine the witnesses. There are no

merits in the writ petition and the same is liable to be dismissed.

NV,J W.P.No.25186 of 2021

7. Having considered the submissions made by both the learned

counsels, it is apt to refer to Clauses 6 and 7 of the Contract of

Agreement entered into between the petitioner and the respondent

authorities which reads as under:

"6. Rescission - Either party may rescind this contract at any time by giving the other party at least 30 calendar days notice in writing of its intention to dos. However, the SSA will suspend or dismiss the services of the signatory immediately, if involved in disciplinary/criminal cases and prima facie findings establish the irregularities. The State Project Director, Sarva Shiksha Abhiyan is empowered to take necessary appropriate action without giving any notice.

7. Termination - In case of improper conduct and/or unsatisfactory performance by the signatory having regard to particular to the terms of reference mentioned above, Sarva Shiksha Abhiyan shall terminate this contract without any notice and no compensation shall be payable in such case."

8. As seen from the reports of the Enquiry Officers, it is revealed

that the petitioner committed irregularities by claiming excess diet

charges while showing excess attendance than the presence of the

inmates of the hostel and also exhibited her negligence in discharging

her duties entrusted to her.

NV,J W.P.No.25186 of 2021

9. In M. Deenaviolet Vs. Samagra Shiksha Abhiyan1 and S.

Prakash Vs. State of Andhra Pradesh2, this Court held that when an

employee engaged on contract basis, no departmental enquiry need be

initiated to take departmental action against him and termination of

services of such employee always depends upon the terms and

conditions of the contract.

10. In M. Deenaviolet (1 supra), in paras 13 and 15 of the judgment,

the learned Single Judge of this Court held as under:

"13. The petitioner by accepting the terms and conditions of the contract agreement, condition No. 7 referred to above, cannot now complain the violation of the principles of natural justice of affording opportunity of hearing. The acceptance of such condition amounted to waiver of the opportunity of hearing/notice before termination of contract, to which the petitioner would not be entitled, unless by reason of some statute, rules or regulations governing the service conditions, the petitioner was or became entitled to such opportunity. Any such statute, rules or regulations has not been placed before the court.

15. The court does not find force in the contention of the learned counsel for the petitioner that before passing the order of termination of contract a regular enquiry should

2022 SCC Online AP 956

2020 SCC Online AP 4957

NV,J W.P.No.25186 of 2021

have been conducted. Any provision for holding any regular detailed enquiry with respect to contract employees, as in the present case, has not been placed before the court."

11. In S. Prakash (1 supra), in para 9 of the judgment, the learned

Single Judge of this Court held thus:

"9. When an employee engaged on contract basis, no departmental enquiry need be initiated to take departmental action against him. In the present case, since there is no relationship between the temple and the petitioner as an employer and employee, and at best, it is only contract to render services in the temple on payment of consideration for such rendering services. Termination of service of this petitioner always depends upon terms and conditions of the contract. Therefore, the petitioner, if entitled to any notice in terms of the contract or payment of any salary before termination, the respondent may take appropriate action in terms of contract of service between the petitioner and the respondent. But the petitioner is not entitled to claim a writ of Mandamus as a matter of right, having indulged in such unethical and immoral activities. Therefore, at best, the petitioner may claim any right, if conferred on him by terms and conditions of the contract for payment of salary. In view of the above, the petitioner may proceed against the department to enforce contract of service, but not by way of Writ petition, as per the terms of the contract, if permitted."

NV,J W.P.No.25186 of 2021

12. In view of the foregoing discussion and in view of the above

legal position, this Court is of the opinion that the decisions of the

learned Single Judge of this Court referred to above are applicable to the

case on hand and therefore, the impugned proceedings warrant no

interference by this Court.

13. Accordingly, the Writ Petition is dismissed. No order as to costs.

Consequently, Miscellaneous Petitions, if any, pending in the

writ petition shall stand closed.

____________________________________ VENKATESWARLU NIMMAGADDA, J 18th November, 2022 cbs

NV,J W.P.No.25186 of 2021

HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

Writ Petition No.25186 of 2021

18th November, 2022 cbs