G. David Raju, vs The Union Of India,
2023 Latest Caselaw 5168 AP

        HONOURABLE SMT. JUSTICE V.SUJATHA

 WRIT PETITION Nos.5716, 9352 of 2015, 44406, 44495
                and 44533 of 2016

COMMON ORDER:

     All these petitions are filed claiming same relief by

different petitioners, but the issue involved in these petitions

is one and the same. Therefore, I am of the view that it is

appropriate to decide all the petitions by common order.

     W.P. No.5716 of 2015 came to be filed under Article

226 of the Constitution of India seeking the following relief:-


            "....to issue a Writ Order or Direction more
     particularly one in the nature of Writ of Mandamus
     declaring the action of the Respondents 3 and 4 in forcibly

getting executed the „Contract of Service‟ dt.10.03.2014 from the petitioners for conversion of their regular service into contractual service thereby seeking to retire them from service on 9.03.2015, thereby affecting the petitioners‟ continuation of service in which posts they were originally appointed without any notice as unconstitutional, without jurisdiction, power or authority of law, wholly illegal, void, untenable, unjust and is in violation of Article 14 of Constitution of India, contrary to the Governing Guidelines issued by the 1st Respondent Ministry, apart from violation of their Constitutional Rights and consequently direct the Respondent No.3 and 4 to continue the petitioners as regular employees of the Jana Shikshan Sansthan, Visakhapatnam with all attendant

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benefits attached to their respective posts upto the age of their superannuation i.e. 60 years...."

The brief facts of the case are that respondent No.3

herein is a Society Registered with the District Registrar,

Visakhapatnam with Registration No.73 of 1984 under the

provisions of Indian Societies Registration Act, 1860.

Originally, the name of the Society was Sramik Vidhya Peeth,

which was formed with an object to provide skill

development for the urban industrial workers and urban

poor. The said organization is fully and completely running

with the financial aid and assistance of respondent No.1

Ministry and the employees of the said organization are

working on regular pay scales. Consequent upon the

establishment of Sramik Vidhya Peeth, petitioner No.1 is

appointed as Assistant Programme Officer on 03.02.1992

with the pay scale of Rs.1400-40-1800-EB-50- 2300.

Petitioner No.2 is appointed as Artist-cum- Projectionist on

29.10.1988 with the pay scale of Rs.330-10-380-EB-12-

500-15-560 (revised to Rs.1200-30-1560-EB-40-2040).

Petitioner Nos.3 and 4 are appointed as Chowkidars on

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11.12.1984 and 23.10.1985 respectively on a pay scale of

Rs.196-3-220-EB-3-232 (revised to Rs.750-12-870-EB-14-

940). Ever since the date of their respective appointments,

they have been working without any remarks whatsoever to

the utmost satisfaction of our superiors. Subsequent to their

appointment, petitioner No.1 got promotion as Programme

Officer and petitioner No.2 also got ad hoc promotion as

Assistant Programme Officer. Pay scales of employees

working in respondent No.3‟s organization were revised in

1989.

While so, respondent No.1 - Union of India has taken a

decision to introduce certain reforms in the respondent No.3

organization. Therefore, the nomenclature of said Shramik

Vidya Peeth was changed to Jana Shikshana Sansthan

(Institute of Peoples Education). The main objects of the said

organization are adult education, taking up vocational and

skill development programmes for neo-literates in urban as

well as rural areas. Consequent upon restructuring of

respondent No.3‟s organization, the Institution was

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registered once again on 21.09.2001 with Registration

No.1024/2001, which is in existence even as of now.

However, there is no change in the service conditions of

existing employees and all the employees who were earlier

employed continued in service. The functions and its

objectives are governed by certain guidelines, including the

staff working conditions by necessary regulations.

Respondent No.1 Ministry also issued an order fixing the

superannuation age of the employees working in respondent

No.3‟s organization as 60 years vide proceedings dated

29.12.2012.

Respondent No.1 Ministry has issued guidelines for

Management, Planning and Programme during the year 1999

and the same were given effect from 01.01.2000. Though it

was designed as new Guidelines, more or less, these

guidelines are similar to the old guidelines, except in certain

areas where it is concerned with the extension of activities

carried on by respondent No.3 organization. There is no

controversy regarding the status and service conditions of

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employees working in the organization. However, certain

concepts were widened and the category of target groups was

extended widely to the rural and tribal areas. Respondent

No.4 has issued a Circular, dated 22.11.2013 to apprise the

revised guidelines issued by respondent No.1 Ministry and

decision is pending as on the date of filing of the writ

petition. However, under the said Circular, respondent No.4

has mislead all the staff, including the petitioners stating

that the existing staff shall opt into a contract system

immediately and therefore, submit their service contracts in

a proforma prepared on his own. Respondent No.4 further

reposed a trust on all the petitioners stating that the

guidelines have to be implemented in its letter and spirit.

Therefore, a formal, requisition of their service contract will

not alter the service conditions of its original nature. As the

petitioners have seen the guidelines of the Ministry, where

there is no effect of change in their service conditions, they

opposed to enter into any such contract employment.

Consequently, respondent No.4 has circulated a Circular

drawn by him stating that respondent No.1 Ministry‟s

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annual action plans approval is subject to certain conditions,

and one such condition is no staff shall raise any dispute or

file any cases against respondent No.3 Organization as it

would lead to losing the sanction of funds and thereby the

salaries will not be paid to the petitioners. Under the threat

of losing their services, out of force, the petitioners have

signed the contract on 10.03.2014 designed by respondent

No.4.

Respondent Nos.3 and 4 have not issued any notice or

intimation to the petitioners about the further consequences

of the contract. However, respondent No.4 slowly started

indicating that the petitioners‟ earlier status of employment

has changed into contractual nature and they will lose the

employment soon on the expiry of the term fixed under the

service contract. On coming to know the same, the

petitioners have submitted representation, dated 12.02.2015

to respondent No.3 who refused to receive the same. As

such, they have sent the same by post and on receiving the

same, respondent No.3 replied that there is no violation of

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guidelines issued by respondent No.1 Ministry and its action

is strictly in accordance with the said guidelines. However,

respondent No.3 designed the revised instructions issued by

the Ministry on 20.06.2013 in its favour to state that the

contract is valid. This action of respondent No.3 is wholly

illegal and untenable in as much as there is no law or

governing regulations permitting respondent No.3 to convert

the permanent employees‟ status into contract basis. There

is no such authority or power as per the existing guidelines.

It only emphasizes the future appointments and the pattern

of future employment.

While the matter being so, respondent No.3 orally

informed the petitioners that their tenure of employment will

seize on the expiry of contract term mentioned in the service

of contract i.e. going to be expired on 09.03.2015.

Challenging the said action of the respondents, initially four

petitioners filed W.P.No.5716 of 2015.

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In W.P.No.5716 of 2015 this Court granted an interim

order to maintain status quo, and the same has been

extended from time to time.

As the said interim order is not complied with,

petitioners in W.P.No.5716 of 2015 have filed C.C.No.1437 of

2015 alleging willful disobedience of the interim order passed

by this Court.

While the matter stood thus, one B.Hari Prasad filed

W.P.No.9352 of 2015 challenging the action of respondent

Nos.3 and 4 therein in forcibly objecting him to

discharge/perform his duties as per the original appointment

made on 08.12.1984 as converted the one from regular

service into contractual service as „contract of service‟ offered

by respondent No.4 through letter in 1G/JSSV/ESTT/2013-

14/137 date 30.11.2013.

In W.P.No.9352 of 2015 also, this Court granted

interim order directing the respondents therein to continue

the petitioner in service till he attains the age of

superannuation and retires eventually.

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Despite the interim order passed in W.P.No.5716 of

2015, salaries were not regularly paid to the petitioners.

Petitioner No.3 in W.P.No.5716 of 2015 who is a Chowkidar

attained the age of 60 years. From March 2015 to September

2015 salaries were not paid and in January 2016 a meager

amount of Rs.89,607/- was released to the petitioner in

W.P.No.44495 of 2016.

While the things stood thus, on 21.09.2016 a letter

was sent to the petitioners stating that they are not reporting

to duty since March 2015, for which they submitted an

explanation on 23.09.2016 explaining that though they have

attending to duty, the attendance register has been kept

away from them and requested for release of salaries. After

the orders passed in W.V.M.P.No.1234 of 2015 in

W.P.M.P.No.7610 of 2015 in W.P.No.5716 of 2015, on

07.10.2016 the petitioners submitted representation

requesting the respondent authorities to permit them to

perform their duties. On 13.10.2016, the Director, Jana

Sikshana Samsthan, issued proceedings suspending the

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petitioners in W.P.Nos.44406, 44495, 44533 of 2016. On

27.10.2016 one more proceeding was issued expressing deep

displeasure on the representation dated 07.10.2016

submitted by them. Thereafter, respondents issued

proceedings framing certain charges such as non-

submission of work, non performance of duties as per the

job chart and absenting from duty etc. No details are given

as to the date on which the petitioners have failed to perform

their duties.

The petitioners addressed a letter on 14.11.2016

stating that they had already addressed a letter to the

Chairman and the Director, JSS on 04.11.2016 through

registered post requesting for relevant documents, but those

letters were returned to the petitioners and in the letter

dated 14.11.2016 the petitioners requested for four weeks‟

time to give a detailed reply. The letter dated 04.11.2016

sent by them was returned. Proceedings were issued on

15.11.2016 stating that some supporting documents are

enclosed and extended the time till 21.11.2016 for

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submitting explanation, again petitioners requested to

extend the time till 12.12.2016. Without giving any time,

proceedings were issued on 24.11.2016 directing the

petitioners to appear before the authorities on 28.11.2016

with all evidence. In pursuance of which, the petitioners

have appeared before the authorities on 28.11.2016 and

requested the respondents authorities to supply records

basing on which, charges were framed against them.

On 12.12.2016, Director, Jana Sikshana Samsthan,

issued proceedings vide Ref.No.F.1G/JSSV/ESTT/2016-

17/146 removing the petitioners in W.P.Nos.44406, 44495,

44533 of 2016 from service which are consequential to

proceedings Ref.No.F.1G/JSSV/ESTT/2016-17/105 dated

13.10.2016 and the proceedings F.1G/JSSV/ESTT/2016-

17/115 dated 31.10.2016. Despite the interim order in

favour of the petitioners, they were placed under suspension

and removed from service.

Challenging the said removal orders vide proceedings

Ref.No.F.1G/ JSSV/ ESTT/ 2016-17/146 dated 12.12.2016,

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petitioner Nos.1, 2 and 4 in W.P.No.5716 of 2015 have filed

three writ petitions vide W.P.Nos.44495, 44406 and 44533 of

2016.

Respondent No.3 in W.P.No.9352 of 2015 i.e. the Jana

Shikshan Sansthan filed counter contending that the

Ministry of Education and Culture, New Delhi sponsored a

scheme of 'Sramik Vidhya Peeth at Visakhapatnam in the

year 1984 to conduct self employment vocation training

programmes for the benefit of industrial workers and their

dependents. As per the guidelines of the Ministry, the

„Sramik Vidhya Peeth' at Visakhapatnam was registered in

district level vide its Registration No.73/1984, dated

03.03.1984 with the District Registrar, Visakhapatnam

District under Societies Registration Act XXI of 1860. The

Sramik Vidhya Peeth at Visakhapatnam has been not in

existence and that the Department of Elementary Education

and Literacy, Ministry of Human Resource Development,

New Delhi constituted a scheme of Jan Shikshan Sansthan

(Institute of People's Education)" at Visakhapatnam with a

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concept for conducting skill upgradation in the areas of

programmes of Non-formal, Adult and Continuing Education

and also provide academic and technical resource support to

Zilla Saksharata Samitis in both urban and rural areas and

accordingly the respondent organization again got registered

with the Registrar of Societies and District Registrar,

Visakhapatnam vide its Society No. 1024/2001, dated

21.09.2001 under the A.P Societies Registration Act 1860

(Act XXI of 1860) and therefore, the litigation, if any, would

be raised before the Cooperative Societies Tribunal situated

at Visakhapatnam.

It is further contended in the counter that prior to end

of contract of service by 14.05.2014 that the petitioner in

W.P.No.9352 of 2015 filed O.S.141/2014 on 21.03.2014 on

the file of II Additional Junior Civil Judge, Visakhapatnam

and obtained an exparte ad-interim temperary Junction vide

I.A.94/2014, in these circumstances, after filing the suit that

the petitioner sent e-mails to the respondent requesting to

grant to leave between 21.01.2014 and 28.02.2015 on

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different dates and sent leave applications on several times

through Speed Posts, which is not permitted for contract

employees. There is an ill motive on the part of the petitioner

to establish his endeavour to continue the service against

the contract of service suggested by the Government of India

in the scheme of Jan Shikshan Sansthan, Visakhapatnam

Therefore, prior to approaching this Court, the contract of

service of the petitioner has been expired by 14.05.2014 and

as such the writ petition is not maintainable.

It is further contended that the question of

superannuation of the petitioners with any emoluments or

benefits does not arise, as their contract of service has been

expired by 14.05.2014. The Board of Management resolved

that the contract of service of the petitioner has been

extended up to May, 2014. Therefore, the writ petitions filed

by the petitioners are liable to be dismissed.

It is further contended in the counter that the

petitioner in W.P.No.9352 of 2015 on the one hand

approached the civil court of law and on the other hand

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approached this Court by filing writ petition instead of

approaching the Cooperative Societies Tribunal at

Visakhapatnam, which has original jurisdiction.

The subject matter of the writ petition comes under

Res Judicata, as the petitioner filed the O.S.No.141 of 2014

on the file of II Additional Junior Civil Judge.

Visakhapatnam, challenging the order passed in the said

case, the respondents preferred appeal C.M.A.No.28 of 2014

on the file of I Additional District Judge, Visakhapatnam,

which has been allowed on 04.03.2015 and requested to

dismiss the writ petition.

The respondent - the Jan Shikshan Sansthan filed

counter in W.P.No.5716 of 2015 contending that the

petitioners were appointed for establishment of Sramik

Vidhya Peeth on fixed pay scales to perform their valuable

duties. Thereafter, the petitioners had entered into an

contract agreements dated 10.03.2014 and in the said

contract of service agreement, it is stated that the

employment is only for one year which ends on 09.03.2015

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and the petitioners are also aware of the terms and

conditions of the contract of service agreement and having

clearly understood the same have signed in the said contract

of service agreement in the presence of the witnesses. Prior

to entering into agreement the petitioners voluntarily with

their own handwriting submitted their respective

representations stating that they read the resolutions and

agreed to work for a period of one year and accordingly, they

entered into the agreement of contract. But, now the

petitioners filed the present writ petitions stating that the

respondent has illegally removed the petitioners from service.

It is further contended in the counter that the Jan

Shikshan Sansthan, Visakhapatnam and Sramik Vidhya

Peeth are different societies with their respective guidelines.

There are no any existing employees in the respondent

society. There is no right to the petitioners to continue them

into service in their respective posts. Once the contract of

service agreement is ended, there is no question of renewing

the said employees, hence, as per the program fixed by the

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authorities it is only for one year and basing on the said

program, respondent had appointed the staff to perform the

said program for one year only.

At the time of establishment of Jan Shikahan Sansthan

(Institute of Peoples Education), in Chapter 8 - Staff and

Finance, it is specifically mentioned at

"8.3 The members of the staff of JSS are employees of the Sansthan/Parent Organization, at the case may be, and are not employees of the Government of India. The role of the Government of India is strictly limited to providing the registered society with financial assistance as per the approved financial pattern. This too, it is providing strictly on a temporary basis and is at liberty to withdraw such assistance without assigning any reason or issuing any notice.

8.4 The members of the staff of JSS shall be engaged on contract basis with consolidated emoluments, as may be fixed by the Board of Management. This will be effective from the date of issue of the guidelines by the Government of India. All the existing vacant positions shall be filled only on contract basis."

It is further contended that the petitioners approached

this Court with unclean hands and they have willfully

entered into the contract of service agreement and the said

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job is only for one year, but before completion of the said

contract agreement, the petitioners approached this Court

and filed the writ petitions and obtained interim order of

status quo for a period of six weeks. There is no such

program to continue the petitioners in the said posts,

because the Central Government had granted the said

program for only one year i.e. from 01.04.2014 to

31.03.2015. Accordingly, the petitioners were taken into

service on contract basis for a period of one year only, hence,

there is no question of continuation of the petitioners in

service.

Respondent No.4 in W.P.No.44495 of 2016 filed

counter affidavit contending that the Department of

Education of the Ministry of Human Resource Development

of the Government of India in 1997 framed a scheme called

Shramik Vidya Peeth (in short „SVP‟) disseminating non-

formal Adult and continuing vocational education. The

scheme was entrusted area wise to registered non-

governmental organizations and the SVPs were free to engage

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their own employees and fix their pay scales subject to the

ceiling imposed on them by the guidelines. It is submitted

that the employees were not cadre born on any permanent

service. While so, the nomenclature of said SVPs were

changed to Jan Shikshan Sansthan (Institute of Peoples

Education) (for short „JSS‟) and the main object of the

organization intended by the Union of India is to take up

vocational and skilled development programmes for neo-

literates in urban as well as rural areas. Consequently, upon

restructuring of the organization, the JSS once again

registered on 21.09.2000 under Societies Registration Act,

1860 with registered No.1024/2001. The Ministry of Human

Resource Development has issued guidelines for

management, planning and programming of JSS. Some of

the guidelines of staffing and finance are as follows:

8.1 Jan Shikshan Sansthan is a scheme of assistance to voluntary agencies enabling them to run a programme with the aims and objectives provided at page 6 of the guidelines.

8.3 The members of the staff of JSS are employees of the Sansthan/Parent Organization, as the case may be,

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and are not employees of the Government of India. The role of the Government of India is strictly limited to providing the registered society with financial assistance according to the approved financial pattern. This too, it provides strictly on a temporary basis and is at liberty to withdraw such assistance without assigning any reason or issuing any notice.

8.4 The members of the staff of JSS shall be engaged on contract basis with consolidated emoluments, as may be fixed by the Board of Management. This will be effective from the date of issue of the guidelines by the Government of India. All the existing vacant positions shall be filled only on contract basis.

8.5. No contract shall be signed with any staff member for a period exceeding three years, Contracts for shorter period shall be signed at the discretion of the Board of Management. No contract shall be renewed after the period of the Board of Management. No contract shall be renewed after the period of expiry of the contract. A fresh contract shall be entered into.

8.7. The Board of Management of the Sansthan may decide the emoluments to be paid to staff members within the ceiling fixed by the Government of India.

As seen from the above guidelines it is very clear that

the financial assistance to the JSS is on temporary basis and

it can be withdrawn without any notice, further the JSS is

not constituted by a statue and control of the Central

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Government against JSS is mere regulatory. Hence, the JSS

is not a State within the meaning of Article 12 of the

Constitution of India.

The petitioner in W.P.No.44495 of 2016 was appointed

by selection as Assistant Programme Officer in the year

1992, later he was appointed by selection as Programme

Officer in the year 1996, but he was not promoted as

Programme Officer from the post of Assistant Programme

Officer as alleged by him. The pay scales attached to the post

of Assistant Programme Officer was continued till the year

1999 i.e., till the SVP renamed as JSS, as the Union of India

stopped the pay scale along with increment and DA.

Therefore, the writ petitioners herein as well as other

employees were paid only lump sum amount upto February,

2015. As the employees were not cadre born on any

permanent service, no employees including the petitioner

services were regularized and no service register was

maintained. The Union of India has issued office

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memorandum dated 20.06.2013 wherein instruction 3.2

reads as follows;

The title of Section 6.27 (Selection of other Staff) is modified to read as Selection and Continuation of other Staff, Provisions of Section 6.27 are modified to read as under:

All positions other than the Director shall be filled by following the prescribed procedures as decided by the Board of Management and through a duly constituted selection committee. The Board of Management may consider renewal of the contract of staff from time to time based on performance appraisal but not beyond the age of 60 years.

In view of the said office Memorandum, the JSS vide

resolution No.3 in the minutes of the Board of Management

meeting held on 20.11.2013 has resolved as follows:

Resolution No.3- With regard to the amendment (Order of GoI) about the extension of upper age of 60 years to staff of JSS, is only for those employees who opted to come under contract system, as per the JSS guidelines. Such application should be forwarded first Executive Committee and then Board of Management. Without the orders of Executive Committee and Board, no employee should be continued beyond 60 years.

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In view of the above minutes of the Board of

Management, all the employees of the JSS including the

petitioners gave their willingness letters to come under

contract system in obedience to the guidelines of the

Government of India. Consequently all the employees

including the petitioner entered into contract service on

10.03.2014 for a period of one year with the consolidated

amount of Rs.17,153/- per month including EPF on certain

terms and conditions. After working on contract service for a

period of almost 12 months and having received the

consolidated amount mentioned in the contract service, the

petitioners approached this Court on the last date of expiry

of contract period questioning the contract service and

obtained interim orders of status quo on 09.03.2015 in

W.P.M.P. No.7610 of 2015 in W.P.No.5716 of 2015 and as

such they were continued on contract service.

Respondents filed vacate petition W.V.M.P.No.1234 of

2015 in W.P. No.5716 of 2015, wherein this Court issued the

following order.

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"........... Be that as it may, the right of the petitioners to continue in service has to be adjudicated in the main writ petition. However, in the meanwhile, it appears that the 3rd petitioner attained the age of 60 years and he is no longer in service. It is not the case of the respondents that there is no work in the respondent organization.

In view of the same, the respondents are directed to continue the petitioners 1, 2 and 4, if they had not attained the age of 60 years, pending disposal of the writ petition. But the said petitioners are under obligation to discharge the duties entrusted by the respondents and the respondents shall allow the petitioners to sign the attendance register. It is open to the respondents to take appropriate action in case of any disobedience to their duties."

After filing the said vacate petition, the petitioner in

W.P.No.5716 of 2015 filed C.CNo.1437 of 2015. However, he

was paid the remuneration as per the agreement of contract

after deducting the amounts as was done in the case of other

contractual employees for a period of seven months.

Therefore it is not correct that he was paid a meager amount

of Ra 89,607/-

Respondents denied that the petitioner was harassed,

not allowed to sign in the attendance register properly and

not allotted any work. In fact the trouble started from the

date of granting status quo order by the Court. The

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petitioners used to report to office at their convenient date

and time and putting signature in the attendance register

weekly once or twice and signed the attendance register left

the office without permission of the Head of the Office and

not followed the procedure of maintaining movement register

while going outside for office work and also not submitted

the procedure in vogue of the field visit forms A & B for the

work done regularly. In spite of the same, was paid the

remuneration for a period of seven (7) months.

It is further stated that in view of the above allegations

even though he was on contract service, to follow the

principles of natural justice he was given memo dated

21.09.2016" calling for an explanation, not satisfying with

the explanation, he was kept under suspension on

13.10.2016 pending enquiry. Latter he was served with

charge memo dated 31.10.2016 with a request to reply with

evidences on or before 06.11.2016. As there was no reply, he

was given another opportunity vide letter dated 09.11.2016

to submit his reply on or before 15.11.2016. To the said

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letter, he submitted a representation stating that he already

sent a registered post letter on 04.11.2016 with a request to

furnish the relevant documents in support of the charges

and also requested to extend the time for submitting his

reply for a further period of four weeks from the date of

06.11.2016. The said alleged registered letter dated

04.11.2016 has not been received by the respondents.

However he was supplied relevant documents while

extending time up to 21.11.2016 for submitting his reply

vide letter dated 15.11.2016. Instead of submitting his reply

he sent another letter dated 19.11.2016 seeking time up to

12.12.2016 to submit his explanation. As seen from the

above, it is very clear that the petitioner, intentionally

dragging the issue to evade the enquiry. Therefore, an

enquiry committee was appointed on 24.11.2016 by the

respondent - Jan Sikshan Sansthan. The enquiry committee

issued notice along with questionnaire and directed the

petitioners to appear before the enquiry committee on

28.11.2016 at 11.30 AM along with evidences. The enquiry

committee also issued notice to the Director as well as to the

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staff to appear before the committee. The petitioners

appeared before the enquiry committee on the said date and

signed on the questionnaire as well as attendance sheet on

the date of enquiry. But without submitting any

documentary evidence to rebut the charges, requested for

some more documents and went away. As those documents

were already furnished, the enquiry committee basing on the

records and evidences of the staff discussed on each charge

and held proved all the charges except one charge. The

enquiry committee submitted its report to the respondent -

Jan Sikshan Sansthan and in turn submitted the same in

the executive committee meeting. The executive committee of

JSS discussed and recommended to the Board of

Management which was constituted by the Union of India,

the same also discussed and having gone through the entire

records along with enquiry report and the action of the

committed has ratified that petitioner's service is no more

required to JSS. The same was communicated to the

petitioner. Therefore, the respondents denied the contention

that the respondents have not followed the principles of

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natural justice and passed removal orders without

conducting any enquiry. As the petitioner is a contractual

employee, that too when there are no service rules, the

question of conducting enquiry as in the case of civil

servants does not arise.

The respondents denied the allegation made by the

petitioners that even though on 05.09.2016 was holiday as it

was Vinayaka Chavithi, the staff signed in attendance

register. As Teachers day also fell on 05.09.2016, therefore

as per procedure in vogue all the staff members attended the

office on 05.09.2016 and signed on the office circular and

also observed Teacher's day, and a circular was issued

stating that the staff meeting will be conducted on

06.09.2016. Accordingly, on 06.09.2016 staff meeting was

conducted. As the petitioner is dragging the issue by

requesting further time for documents, the respondents have

no other option except to proceed with the enquiry. In fact,

all the relevant documents are furnished to the petitioner,

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therefore, there is no malafide intention and procedural

irregularity, and requested to dismiss the writ petition.

Respondents filed counter in W.P.No.44406 and 44533

of 2016 on the similar lines as contended in W.P.No.44495 of

2016.

Sri K.S.Murthy, learned senior counsel representing Sri

Ponnada Sree Vyas, learned counsel for the petitioners in

W.P.Nos.44495, 44406 and 44533 of 2016 and Sri

P.Srinivasa Rao, learned counsel for the petitioners in

W.P.Nos.5716 and 9352 of 2015, have contended that the

petitioners have a right of continuation in service as they

were appointed in the year 1992 with certain service

conditions/guidelines by undergoing due selection process,

as such the same cannot be changed unilaterally without

giving any prior notice to the petitioners. Initially, the

petitioners were given respective pay scales. Later,

respondent No.1 Ministry for Management, Planning and

Programme issued circular during the year 1999, which was

given effect from 01.01.2000. Though it was designed as new

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guidelines, more or less, these guidelines are similar to the

old guidelines, except in certain areas where it is concerned

with the extension of activities carried on by respondent No.3

organisation. But, there was no change in the status and

service conditions of employees working in the organization.

Even after restructuring of respondent No.3 organisation and

change of nomenclature, there is no change in the working

pattern or service conditions including payment of salaries,

wages, and allowances. Respondent No.1 ministry has issued

guidelines for management, planning and programme during

the year 1999 and the same were given effect from 1 st

January 2015. As per the said guidelines, there is no

controversy regarding the status and service conditions of

working staff in the organization. While so, respondent No.4

has issued a circular dated 22.11.2013 informing that as per

the revised guidelines and instructions issued by the

Government of India, the Board of Management in its

meeting held on 20.11.2013 has taken a decision to bring all

the existing staff under contract system immediately. Based

on the said circular, respondent No.4 has mislead all the

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staff, including the petitioners stating that the existing staff

shall opt for contract system immediately and therefore,

submit their service contract in a proforma prepared on his

own. Therefore, a formal requisition of the service contract

will not alter the service conditions from its original nature.

Initially, petitioners opposed to enter into any such contract

employment. However, under the threat of losing their job,

the petitioners were forced to sign on the contract proforma

prepared by respondent No.4. The learned counsel for the

petitioners further contended that the regular employee

cannot be converted into contract employee unilaterally. The

undertaking given by the petitionersis contrary to actual

provision of law will not bind upon the party. Further, the

termination orders dated 12.12.2016 issued by the

respondents to the petitioners in W.P.No.44406, 44495 and

44533 of 2016 are also illegal and arbitrary as the

respondents have not followed the due process in conducting

enquiry; copies of enquiry report were also not furnished to

the petitioners, but straight away issued termination order,

which amounts to violation of principles of natural justice

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and requested to set aside the termination orders dated

12.12.2016. The judgments relied on by the learned counsel

for the petitioners will be referred at appropriate stage.

Learned counsel for the respondents contended that

the writ petition is not maintainable since respondent No.3 -

JSS was registered under the Societies Act, 1860. The

petitioners had entered into an contract agreements dated

10.03.2014 and as per the said contract of service

agreement, the employment is only for one year, which ends

on 09.03.2015 and the petitioners are also aware of the

terms and conditions of the contract of service agreement. As

the petitioners having agreed and signed on the contracts, at

a later stage, they cannot say that the said contracts are not

binding on them. They have entered into the contract of

service agreement and the said job is only for one year, but

before completion of the said contract agreement, the

petitioners approached this Court and filed the writ petitions

and have obtained interim order of status quo for a period of

six weeks. There is no any program to continue the

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petitioners in the said posts, as the Central Government had

granted the said program for only one year i.e. from

01.04.2014 to 31.03.2015. Accordingly, the petitioners were

taken into service on contract for a period of one year, hence,

there is no question of continuation of the petitioners into

service. The question of superannuation of the petitioners

with any emoluments or benefits does not arise, as their

contract of service has already expired. Further, the SVP or

JSS would not fall within the meaning of "State" as defined

under Article 12 of the Constitution of India, therefore, the

writ petitions are not maintainable against the respondents

and requested to dismiss the writ petitions.

To decide whether the respondent organisation would

fall within the meaning of "State", it would be necessary to

refer to the definition of the word "State" under Article 12 of

the Constitution of India, which is as follows:

"12.Definition: In this part, unless the context otherwise requires, "the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within

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the territory of India or under the control of the Government of India."

Further, it is to be observed that the determination of a

body as a 'State' is not a rigid set of principles. What is to be

seen is whether in the light of the cumulative facts as

established, the body is financially, functionally and

administratively dominated by or under the control of the

Government, albeit if the control is mere regulatory, whether

under statute or otherwise, it will not serve to make the body

a State. Also, the presence of some element of public duty or

function would not by itself suffice for bringing a body within

the net of Article 12 of the Constitution of India. (Vide: Zee

Telefilms Ltd. and Another Vs. Union of India and

Others1").

Chapter 6 of Guidelines for Management, Planning

and Programming deals with "Organisation and

Management", clause 6.22 deals with "power to frame,

amend or repeal bye-laws", which is as follows:

(2005) 4 SCC 649

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"6.22 Subject to the approval of the Government of India, the board shall have the power to frame, amend or repeal any bye laws for furtherance of its objective and in particular to provide for following matters....."

Chapter 8 deals with "Staff and Finance". Clause 8.3 is as follows:

"The members of the Staff of JSS are employees of the Sansthan. Parent Organisation, as the case may be, and are not employees of the Government of India. The role of the Government of India is strongly limited to providing the registered society with financial assistance as per the approved financial pattern. This too, it is providing strictly on a temporary basis and is at liberty to withdraw such assistance without assigning any reason or issuing any notice."

From the above, it is clear that the JSS,

Vishakhapatnam is fully funded and controlled by the Union

of India. Therefore, the same becomes authority and is

amenable to writ jurisdiction under Article 226 of the

Constitution of India. Further, the pervasive control lies with

the Government of India only. It is settled principle of law

that once the organization is funded and controlled by the

Government of India, it would fall within the definition of

"State" under Article 12 of the Constitution of India.

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Therefore, the present writ petitions are maintainable against

the respondent - JSS, Vishakhapatnam.

Admittedly, the petitioners were appointed by a duly

constituted Selection Committee and appointment orders

were issued in the years 1984, 1985, 1988 and 1992. Since

then, they are continuing in service. The governing rules and

regulations are issued by the Government of India, wherein

Rule 21.4 deals with Selection of other Staff, which reads as

under:

"21.4 Selection of other Staff: All positions other than the Director shall be filled by following prescribed procedures as decided by the Board of Management and through a duly constituted selection committee."

As per the material available on record, following the

above said rule, the petitioners were appointed by the

respondents and they have been continuing in service. The

Union of India has extended the benefit of Pay Revision Scale

(PRC) to the staff of the JSS. In the year 2000, the parent

institution Sramik Vidya Peeths (SVPs) are renamed as Jan

Shikshan Sansthan (JSS). Though the institution was

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renamed, there is no change in the Management, guidelines,

rules and regulations framed by the Ministry. Therefore, the

appointment orders issued to the petitioners by the SVP,

which was renamed as JSS, are valid till they attain the age

of superannuation i.e. 60 years as per the orders of Ministry.

But, in spite of the same, the Director of the Institution has

directed the petitioners/employees to opt for contract of

service by enclosing a format under circular dated

22.11.2013.

It is apt to mention here that the petitioners/employees

are shown as if they have been appointed newly into the

service a fresh, whereas they are already in service as

existing employees as on the date of the circular dated

22.11.2013.

At the time of establishment of Jan Shikahan Sansthan

(Institute of Peoples Education), in Chapter 8 - Staff and

Finance, it is specifically mentioned as follows:

8.4 The members of the staff of JSS shall be engaged on contract basis with consolidated emoluments, as may be fixed by the Board of Management. This will be effective from the date of issue of the

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guidelines by the Government of India. All the existing vacant positions shall be filled only on contract basis."

From the above, it is clear that the authorities are

directed to fill up all the existing vacant positions on contract

basis, but not to convert the regular employees as contract

employees.

Respondent No.4 did not serve any copy of Circular

dated 20.06.2013 issued by the Ministry as relied upon and

adverted in the resolution of BOM, dated 20.11.2013 when

the petitioners/employees were called upon to submit the

enclosed format to opt for contract system. Therefore, it is

violation of principles of natural justice, consequently, the

contract forcibly obtained by the respondents is not binding

on the petitioners.

In "Shri Krishnan Vs. The Kurukshetra University,

Kurukshetra2", relied upon by the learned counsel for the

petitioners, the Apex Court held that "it is well settled that

any admission made in ignorance of legal rights or under

duress cannot bind the maker of the admission."

(1976) 1 SCC 311

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In "Grid Corporation of Orissa Vs. Rasananda Das 3"

the Apex Court held that "service conditions of such

employees are to be protected and cannot be changed to

their disadvantage or detriment by virtue of the regulation of

the Board"

In "Chairman, Railway Board Vs.

C.R.Rangadhamaiah4" while stating that "legislature is

competent to legislate with retrospective effect to take away

or impair any vested right acquired under existing laws and

no law whether prospective or retrospective can be made so

as to contravene fundamental rights provided in Constitution

of India", specifically held as follows:

"The Full Bench of the Tribunal has, in our opinion, rightly taken the view that the amendments that were made in Rule 2544 by the impugned notifications dated December 5, 1988, to the extent the said amendments have been given retrospective effect so as to reduce the maximum limit from 75% to 45% in respect of the period from January 1, 1973 to March 31, 1979 and reduce it to 55% in respect of the period from April 1, 1979, are

(2003) 10 SCC 297

(1997) 6 SCC 623

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unreasonable and arbitrary and are violative of the rights guaranteed under Articles 14 and 16 of the Constitution."

In the present cases also, respondents converted the

petitioners from regular to contract employment, who were

appointed long back after following due selection procedure

with certain service conditions prevailing as on the date of

their appointment, which would amount to "change of game

rules after commencement of game", which is admittedly

impermissible under law. Following the law laid down in the

judgments referred above, change of service conditions

detriment to the petitioners, after their appointment process

is completed and during their service, is illegal and arbitrary.

With regard to the termination orders dated

12.12.2016 issued to the petitioners in W.P.Nos.44406,

44495 and 44533 of 2016, it is to be seen that on

21.09.2016 a letter was sent to the petitioners stating that

they are not reporting to the duty since March 2015, to

which explanation dated 23.09.2016 was submitted.

Thereafter, through proceedings dated 13.10.2016

petitioners were placed under suspension. Further, on

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27.10.2016 letters were issued to the petitioners informing

that an enquiry will be conducted against them and action

will be taken accordingly. Moreover, after placing them

under suspension, during enquiry, the respondents vide

proceedings dated 31.10.2016 framed charges against the

petitioners on vague and frivolous grounds, which cannot

form the basis for any disciplinary proceedings.

It is also the case of the petitioners that on 04.11.2016

and 14.11.2016, the petitioners have submitted a

representation to the authorities requesting to supply the

documents, basing on which charges have been framed

against them and sought four weeks time to submit detailed

explanation. They were given time till 2nd week of November,

2016. On 28.11.2016, the Petitioners requested for copies of

the documents, which are in the custody of the officers, to

prove their bonafides and to participate in the enquiry as

those documents are important to prove their case.

On 15.11.2016 loose papers were sent to the

petitioners, which were created subsequently by the

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respondents, wherein one such alleged document is the

circular signed by the employees on 05.09.2016 i.e.,

Vinayakachaturti holiday.

The respondents in their counters have stated that the

employees attended the office on 05.09.2016 even though it

was Vinayakchaturti holiday because Teachers‟ day also fell

on the same day. It is to be noted here that petitioners are

working in the office of Jana Sikshana Sansthan, it is not a

school to contend that all teachers would be coming to

celebrate Teachers day. In fact, the petitioners are not

Teachers, therefore, the question of petitioners attending on

Teachers‟ day does not arise.

Where the charge sheet is accompanied by the

statement of facts and the allegations are not specific in the

charge sheet, but are crystal clear from the statement of

facts, in such a situation, as both constitute the same

document, it cannot be held that as the charges were not

specific, definite and clear, the enquiry stood vitiated. Thus,

nowhere should a delinquent be served a charge sheet,

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without providing to him, a clear, specific and definite

description of the charges framed against him. When

statement of allegations are not served with the charge sheet,

the enquiry stands vitiated, as having been conducted in

violation of the principles of natural justice. Evidence

adduced should not be perfunctory, even if the delinquent

does not take the defence of, or make a protest with against

that the charges are vague, that does not save the enquiry

from being vitiated, for the reason that there must be fair-

play in action, particularly in respect of an order involving

adverse or penal consequences. What is required to be

examined is whether the delinquent knew the nature of

accusation. The charges should be specific, definite and

giving details of the incident which formed the basis of

charges and no enquiry can be sustained on vague charges.

(Vide: "State of Andhra Pradesh Vs. S. Sree Rama Rao 5";

"Sawai Singh Vs. State of Rajasthan6"; "U.P.S.R.T.C. Vs.

Ram Chandra Yadav7"; "Union of India Vs. Gyan Chand

AIR 1963 SC 1723

AIR 1986 SC 995

AIR 2000 SC 3596

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Chattar8"; and "Anil Gilurker Vs. Bilaspur Raipur

Kshetria Gramin Bank9".)

While reiterating the said principles, the Hon‟ble

Supreme Court in "Anant R.Kulkarni Vs. Y.P.Education

Society10" held as follows:

"The purpose of holding an enquiry against any person is not only with a view to establish the charges levelled against him or to impose a penalty, but is also conducted with the object of such an enquiry recording the truth of the matter, and in that sense, the outcome of an enquiry may either result in establishing or vindicating his stand, and hence result in his exoneration. Therefore, fair action on the part of the authority concerned is a paramount necessity."

With regard to necessity of affording reasonable

opportunity and supply of copies of statements of witnesses

to the employee, the Hon‟ble Supreme Court in "State of

Punjab Vs. Bhagat Ram11" held as under:

"The State contended that the respondent was not entitled to get copies of statements. The reasoning of the

(2009) 12 SCC 78

(2011) 14 SCC 379

(2013) 6 SCC 515

1975 (2) S.C R. 370

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State was that the respondent was given an opportunity to cross-examine the witnesses and during the cross- examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence.

The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against the charges on which inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have an effective and useful cross-examination.

It is unjust and unfair to deny the Government servant copies of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the Government servant. A synopsis does not satisfy the requirements of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be taken ...."

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In the present cases, copy of the enquiry report is also

not supplied to the petitioners. Non-furnishing of enquiry

report would amount to denial of reasonable opportunity and

violation of principles of natural justice.

In "Avtar Singh, Police Constable Vs. The Inspector

General of Police, Punjab12" admittedly the findings of the

Inquiry Officer were not communicated to the delinquent

employee and he was only orally told that it was proposed to

dismiss him. The Court in this context held that every public

servant is entitled to have the whole of the matter brought to

his notice before he was asked to show cause why particular

punishment should not be meted out to him. The Court has

explained what it meant by "the whole of the matter" by

stating that it is the findings on the charges against him

which should be made known to him.

In "State of Gujarat Vs. R.G. Teredesai 13" the

Hon‟ble Supreme Court held that the requirement of a

reasonable opportunity would not be satisfied unless the

(1968) SLR 131

[1970]1SCR251

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entire report of the Inquiry Officer including his views in the

matter of punishment were disclosed to the delinquent

public servant. The Inquiry Officer is under no obligation or

duty to make any recommendations in the matter of

punishment and his function merely is to conduct the

inquiry in accordance with law and to submit the records

along with his findings. But if he has also made

recommendations in the matter of punishment "that is likely

to affect the mind of the punishing authority with regard to

penalty or punishment to be imposed" it must be disclosed

to the delinquent officer. Since such recommendations form

part of the record and constitute appropriate material for

consideration of the Government it would be essential that

material should not be withheld from him so that he could,

while showing cause against the proposed punishment,

make a proper representation. The entire object of supplying

a copy of the report of the Inquiry Officer is to enable the

delinquent officer to satisfy the punishing authority that he

is innocent of the charges framed against him and that even

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if the charges are held to have been proved, the punishment

proposed to be inflicted is unduly severe".

In "General Manager, Eastern Railway and Anr. v.

Jawala Prasad Singh14" it is reiterated that the Inquiry

Officer ends with the making of the report. The disciplinary

authority has to consider the record of the inquiry and arrive

at its own conclusion on each charge. Even if the inquiry

committee makes a report absolving the employee of the

charges against him, the disciplinary authority may on

considering the entire record come to a different conclusion

and impose a penalty.

In "Uttar Pradesh Government Vs. Sabir Hussain15"

it was held that in the absence of furnishing the copy of the

report of the Inquiry Officer, the plaintiff had been denied a

reasonable opportunity of showing cause against his

removal.

(1970)IILLJ279SC

[1975] Supp. SCR 354

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Following the law laid down in the judgments (referred

supra) it has to be held that when the Inquiry Officer is not

the disciplinary authority, the delinquent employee has a

right to receive a copy of the Inquiry Officer's report before

the disciplinary authority arrives at its conclusions with

regard to the guilt or innocence of the employee with regard

to the charges levelled against him. The same is a part of the

employee's right to defend himself against the charges

levelled against him. A denial of the Inquiry Officer's report

before the disciplinary authority takes its decision on the

charges, is a denial of reasonable opportunity to the

employee to prove his innocence and is a breach of the

principles of natural justice.

It is also evident from the record that on 28.11.2016,

the petitioners requested the respondents to supply copies of

the documents. In response to the said request, the

respondents supplied some loose papers including the

circular signed by the petitioners on 05.09.2016. The

question of employees attending office on 05.09.2016

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(Vinayakachaturti and also Teachers‟ day) and signing on

circular issued by the respondents, generally, does not arise

as the petitioners are working in the office of JSS in different

capacities, but not teachers, therefore, the document dated

05.09.2016 cannot be believed. Except the document dated

05.09.2016, there is no other material to show that the

respondents served copies to the petitioners in response to

their letter dated 28.11.2016. This fact shows that the

impugned removal orders were passed even without hearing

the petitioners, which is in violation of principles of natural

justice wherein "Audi alteram Partem" is inherent part of

service jurisprudence.

"Audi alteram partem" is considered to be a principle

of fundamental justice or equity or the principle of natural

justice in most legal systems. This principle includes the

rights of a party or its lawyers to confront

the witnesses against them, to have a fair opportunity to

challenge the evidence presented by the other party, to

summon one's own witnesses and to present evidence, and

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to have counsel, if necessary at public expense, in order to

make one's case properly. Denying the opportunity of being

heard is violation of Article 14 and 21 of the Constitution of

India.

As the charges were framed on vague and frivolous

grounds and the removal of the petitioners even without

supplying the documents/papers, basing on which the

charges were framed, and even without giving opportunity of

hearing to the petitioners, this Court feels it appropriate to

allow the writ petitions.

Accordingly, the writ petitions are allowed by setting

aside the „contract of service‟ dated 10.03.2014 forcibly

obtained from the petitioners in W.P.No.5716 of 2015 as well

as the letter Ref.F.1G/JSSV/ESTT/2013-14/137 dated

30.11.2013 issued to the petitioner in W.P.No.9352 of 2015

and also the removal orders dated 12.12.2016 issued to the

petitioners in W.P.Nos.44406, 44495 and 44533 of 2016. No

costs.

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Miscellaneous petitions pending, if any, in the Writ

Petitions, shall stand closed.

________________________ JUSTICE V.SUJATHA 20.10.2023 Ksp