Telangana High Court

Gangula Nagaiah vs State Of Telangana And 3 Others on 25 November, 2022

Bench: N.V.Shravan Kumar

       HONOURABLE SRI JUSTICE N.V.SHRAVAN KUMAR

              WRIT PETITION No. 36254 of 2022

ORDER:

The present writ petition is filed seeking issuance of writ

of mandamus to declare the Memo No.B/CWA/Termination/

2022, dated 23.06.2022 issued by the Principal, Government

Polytechnic for Women, Suryapet, respondent No.4, and the

proceedings, dated 17.06.2022 issued by the Commissioner of

Technical Education, Hyderabad, respondent No.2, as wholly

illegal, arbitrary and violative of Articles 14, 16 and 21 of the

Constitution of India and without application of mind apart from

being violative of principles of natural justice and consequently,

declare that the petitioner is entitled to be continued in service

with all consequential benefits.

2) The facts, in brief, are that the petitioner had completed

Intermediate and I.T.I. in Fitter Trade. In the year 2012,

pursuant to the notification issued by respondent No.2, the

petitioner applied for the post of Workshop Attendant on

contract basis. The petitioner was selected for the said post

and posted in Government Polytechnic, Nalgonda on contract

basis for the academic year 2012-2013 vide proceedings No.RJD

(H)/B1/Workshop/2099/2012, dated 19.08.2012 issued by

respondent No.3. The petitioner joined duty as Workshop

Attendant on 23.08.2012 and he has been continuing on renewal

of his contract yearly. The petitioner worked for four years in

Government Polytechnic, Nalgonda and thereafter in the year

2016 he was transferred to Government Polytechnic for Women,

Suryapet and since then he has been working as Workshop

Attendant in the said college. While things stood thus,

respondent No.4 addressed a letter bearing No.B/Surrender1/

Gpwscpt/2022, dated 02.05.2022 to respondent No.2

surrendering the petitioner to the head office for further action.

In the above letter, respondent No.4 referred to certain memos

issued to the petitioner and the replies given by him to the said

memos. Though the petitioner was surrendered, he had

continued in the said college till 22.06.2022. Respondent No.2

issued Memo, dated 19.05.2022 informing respondent No.4 to

issue a show-cause notice to the petitioner as to why his

services should not be terminated and submit a detailed report,

along with his remarks, for taking further necessary action in

the matter. Pursuant to the said memo, respondent No.4 issued

show-cause notice No.B/01/2022, dated 24.05.2022, directing

the petitioner to submit his explanation as to why his services

should not be terminated on the ground that he is not carrying

out work assigned by the higher authorities. In the show-cause

notice, respondent No.4 also referred to certain memos given to

the petitioner and the replies of the petitioner to the said

memos. The petitioner has submitted a detailed explanation on

01.06.2022 stating that he has been carrying out the work

assigned by the higher authorities and obeying the instructions

of the superiors and he is not negligent in performing the

allotted duties. In the explanation, the petitioner has

specifically denied the allegations that he is infusing ill behavior

in other contract workshop attendants and making unnecessary

arguments with the Principal and other Head of the

Departments and requested to drop further action against him in

the matter. Thereafter, the explanation given by the petitioner

to the above show-cause notice was forwarded by respondent

No.4 to the Commissioner of Technical Education, Hyderabad,

respondent No.2. Though the petitioner had submitted his

explanation on 01.06.2022, respondent No.2 recorded that he

had submitted his explanation on 16.06.2022. Then Respondent

No.2 issued orders, dated 17.06.2022, instructing respondent

No.4 to terminate the petitioner from contractual services with

immediate effect. Pursuant to the said orders, dated

17.06.2022, respondent No.4 issued memo, dated 23.06.2022,

terminating the petitioner from the contractual services with

immediate effect. Questioning the memo, dated 23.06.2022,

issued by respondent No.4 and the proceedings dated

17.06.2022, issued by respondent No.2 the present writ petition

is filed.

3) A counter has been filed by the Government Pleader for

Services-I stating that the petitioner has been initially appointed

as workshop attendant on contract basis and he has joined on

23.08.2012 as contract workshop attendant in Government

Polytechnic, Nalgonda and later in the year 2016, the petitioner

was transferred to respondent No.4 institution. It is further

stated in the counter that as per the communication received

from respondent No.4 vide letter, dated 02.05.2022, it was

noticed by respondent No.2 that the petitioner is not attending

to the institution on allotted time and not obeying the

instructions of the Principal and the Head of the Departments

and also infuses the ill behavior with other contract workshop

attendants, which shows the negligence attitude of the

petitioner towards the duties assigned to him and attracts the

provisions of the Telangana State Conduct Rules and hence

prima facie established the dereliction of duties against the

petitioner. It is further stated that it is a clear case of lack of

devotion and negligence of duties and therefore, contemplated

to issue a show-cause notice to the petitioner to submit his

explanation as to why his services shall not be terminated. The

petitioner has submitted his explanation, which was forwarded

to respondent No.2. It is also submitted that the petitioner

failed to submit any satisfactory reply to the show-cause notice

issued to him and hence, respondent No.2 issued orders, dated

17.06.2022, instructing respondent No.4 to terminate the

services of the petitioner with immediate effect, duly following

the procedure laid down in the Telangana State Civil Services

(CCA) Rules, 1991 (for short "the Rules") and accordingly, the

petitioner was terminated from service vide proceedings, dated

23.06.2022. It is further submitted that as per the terms of

contract agreement, the competent authority is respondent

No.2 and the services of a contract staff shall be terminated as

and when subject to disciplinary control in accordance with the

provisions of G.O.Rt.No.53, Higher Education (TE) Department,

dated 20.03.2018. It is further submitted that the respondents

have followed due process of law while terminating the services

of the petitioner.

4) Heard Sri Kondaveeti Ravi, learned Senior Counsel

appearing for Sri Kirthi Teja Kondaveeti, learned counsel for the

petitioner; learned Government Pleader for Services-I and

perused the material available on record.

5) Learned Senior Counsel appearing for the petitioner

submits that it is well settled principle of law that the

termination of services of a contract employee without

conducting an enquiry would only cast stigma on the employee

and attributes malafides against him. In support of the said

contention, he relied upon the judgments of this Court in

A.P.Tourism Development Corporation Limited and another

v. B.Nandeswar Rao1 and in S.Zabeda Parveen v.

A.P.Women's Cooperative Finance Corporation, Hyderabad

(2014) 15 ALD 670 (DB)

and another2. The main grievance of the petitioner is that the

respondent authorities issued the show-cause notice alleging

that the petitioner did not obey the instructions of the superiors

and not carrying the work assigned by the higher authorities and

he is infusing ill behavior in other contract workshop attendants,

negligent in performing the allotted duties i.e., watchman duty

and making unnecessary argument with the Principal and other

Head of the Departments. It is further submitted that the whole

controversy arose as the petitioner was not willing to attend the

night watchman duties allotted by respondent No.4 as those

duties are not related to Workshop Attendant. The petitioner

also appended the job chart i.e., the duties of Lab Attendant

and Workshop Attendant, along with the writ petition. It is

further submitted that the petitioner is not willing to perform

night watchman duties, which are in no way related to the

duties of workshop attendant, respondent No.4 bore grudge

against him and wantonly surrendered his services initially to

the head office and thereafter, show-cause notice was issued

and then the present termination order was issued on the

instructions of respondent No.2 without applying his mind

(2015) 6 ALD 675

independently. It is further submitted that the respondent

authorities have issued the impugned termination orders when

the regularization file of contract workshop attendants is

pending with the Government. In April, 2022, respondent No.2

sent proposals for regularization of services of contract

workshop attendants, wherein the name of the petitioner was

also included. Respondent No.4 with an ill intention to see that

the services of the petitioner are not regularized wantonly

surrendered his services. It is further submitted that the

petitioner is the Associate President of Telangana Polytechnic

Contract Workshop Attendants Association and he has been

ventilating the problems being faced by the contract workshop

attendants to the notice of respondent No.4. As the petitioner,

who is the office bearer of the said Association, was pursuing

with respondent No.4 for getting the services of contract

workshop attendants regularized, respondent No.4 bore grudge

against the petitioner and got the termination order issued to

see that his services are not regularized. The learned Senior

Counsel has drawn the attention of this Court to Rule 9 and sub

rule (1) of Rule 20 of the C.C.A. (Conduct) Rules.

6) Learned Government Pleader for Services-I, while

reiterating the contents of the counter, submits that as per the

instructions of respondent No.2, respondent No.4 had

terminated the services of the petitioner by duly following the

procedure laid down in the Rules. It is further submitted that as

per the provisions of G.O.Rt.No.53, Higher Education (TE)

Department, dated 20.03.2018, the services of a contract staff

shall be terminated on giving one month's notice or pay in lieu

thereof. Learned Government Pleader has drawn the attention

of para 4 (VII) of G.O.Rt.No.53, which discloses the conditions of

appointment.

7) From the above rival submissions, the issues that fall for

consideration are whether the termination which is punitive or

stigmatic can be inflicted without following the principles of

natural Justice and whether it is necessary to hold a

departmental enquiry while terminating the services of the

petitioner, who is a contract employee?

8) The undisputed fact is that the petitioner was appointed

on a contract basis as Workshop Attendant initially for the

academic year 2012-2013 which was renewed from time to time.

The services of the petitioner was surrendered by respondent

No.4 alleging that he is not attending the work allotted to him

stating that he is not attender/Class-IV employee and he also

infuses the ill-behaviour in other Contract Workshop attendants

to the head office vide letter, dated 02.05.2022. Vide memo,

dated 19.05.2022, respondent No.2 instructed respondent No.4

to issue show-cause notice to the individual as to why his

services should not be terminated and accordingly submit a

detailed report along with his remarks for taking further

necessary action in the matter. Pursuant to the instructions,

show-cause notice, dated 24.05.2022 has been issued by

respondent No.4 as to why the services of the petitioner will not

be terminated with immediate effect. It is apt to refer to the

contents of the show-cause notice which reads as under:-

"It is construed that Sri G.Nagaiah, Contract Workshop Attendant of this institution is intentionally not carrying the work assigned by higher authorities. As to why disciplinary action should not be taken against him on the following grounds:-

1. He is not obeying the instructions of the superiors, stating that he is not an Attender.

2. Insubordination to the administration.

3. Infuses the ill-behaviour in other contract workshop attendants.

4. Negligent in performing allotted duties i.e., Watchman duty.

5. Unnecessary argument with the Principal and other HODs. Therefore, as to why his services will not be terminated with immediate effect. His detailed explanation should be reached to the undersigned within ten days from the date of receipt of this show-cause notice."

9) A perusal of the show-cause notice in the first paragraph it

is mentioned that "as to why disciplinary action should not be

taken against the petitioner on the aforesaid grounds" and in

the conclusion para it is mentioned that "as to why his services

will not be terminated with immediate effect".

10) The petitioner has submitted his explanation, dated

01.06.2022 to respondent No.2. A perusal of the explanation

would show that the petitioner is attending to the duties of

night watchman in Government Women Polytechnic, Suryapet

for the last six years i.e., since 2016 as well as attending to the

duties of day watchman as per turn. In this regard he sought

request for verification of the watchman register. It is also

clear from the explanation that the petitioner made a request

for exemption for one day i.e., on 14.12.2021 in view of the

health problem of his four months daughter, but never said that

he will not attend to the duty. It is also stated in the

explanation that in obedience to the instructions of respondent

No.4, the petitioner also performed the other duties like putting

the furniture outside from the old room damage slab for

verification of furniture, along with others.

11) Though the petitioner has elaborately explained in the

explanation submitted to the show-cause notice, respondent

No.2 has not considered the same and instructed respondent

No.4 to terminate the petitioner from contractual services with

immediate effect. Admittedly, the impugned memo does not

disclose the cogent reasons to substantiate his termination.

12) Even otherwise, without conducting any enquiry, the

cryptic order terminating the contractual services of the

petitioner with immediate effect has been passed. It is well

settled law that even an outsourced employee cannot be

stigmatized without an enquiry. In the case of S.Zabeda

Parveen v. A.P.Women's Cooperative Finance Corporation,

Hyderabad and another (supra) wherein an issue was framed

as "Whether holding of a regular departmental enquiry against

the petitioner, who was a temporary contract employee, was

necessary?" After considering the plethora of judgments of the

Hon'ble Apex Court, this Court, held as under:-

"16. Even if the petitioner is treated as a purely temporary contract employee, she is entitled to the protection of Article 311 (2) of the Constitution of India as in the case of permanent Government Servants, if her services are sought to be terminated on the ground of misconduct. ...

19. ... Therefore, the order being not only stigmatic, but also punitive, the stand of the respondents that there was no need to conduct a regular departmental enquiry is contrary to the settled legal principles discussed above."

13) In A.P. TOURISM DEVELOPMENT CORPORATION LIMITED,

V/s. B.NANDESWAR RAO (supra), a Division Bench of this Court

held as under:-

"11. It is true that unlike an employee, who is appointed on regular basis, the services of an employee appointed for a fixed tenure can be brought to an end without the necessity of conducting a detailed departmental enquiry. Much, however, would depend upon the nature of blot left upon the person while terminating the contract. Notwithstanding the fact that the appointment was for a fixed term, if the employer intends to brand the employees as inefficient or to attribute, misconduct, the conducting of enquiry becomes essential."

14) In State of A.P. rep. by its Principal Secretary,

Municipal Administration and Urban Development

Department, Velagapudi and others v. K.Madhu Phani and

another (supra), a Division Bench of this Court held as under:-

"In our opinion, even in case of an outsourced employee, he cannot be stigmatized without an enquiry and in our opinion, the learned single Judge has correctly appreciated the elements of prima facie case, balance of convenience and irreparable injury in making the interim order absolute."

15) In view of the above settled principles of law, in my

considered opinion, it was incumbent on the part of respondents

to conduct disciplinary enquiry after issuing charge memo to the

petitioner asking the petitioner to submit explanation to the

same, and thereafter conduct an enquiry by leading evidence to

prove the charge and then only take action against petitioner,

but not otherwise.

16) Further, the Government took a policy decision vide

G.O.Ms.No.94, General Administration (SR-A) Department, dated

28.03.2003, on recruitment of public services. It is apt to refer

to clause 11 of the said policy decision, which reads as under:-

"11. Disciplinary control: Subject to the overall right of the Department to terminate the contract on giving one month's notice, or pay in lieu thereof, a person appointed

on contract basis shall be subject to disciplinary control in accordance with the provisions of A.P.C.C.A. Rules."

17) Added to that, as per clause (e) of the appointment

proceedings, dated 19.08.2012 itself, the Department has

overall right to terminate the contract on giving one month's

notice or pay in lieu thereof, he/she shall be subject to

disciplinary control in accordance with the provisions of

A.P.Civil Service (CCA) Rules, 1991.

18) Further, though the learned Government Pleader referred

the conditions of appointment stipulated in para 4 (VII) of

G.O.Rt.No.53, the respondents failed to produce any contract

agreement and only filed a Format enclosed to G.O.Rt.No.53. It

is necessary to refer to para 4 (VII) of G.O.Rt.No.53, which is as

under:-

"VII. Conditions of appointment: The appointment of a person on contract basis shall be made under Rule 9 of A.P.State and Subordinate Service Rules, 1993. The person appointed under sub rule (a) of the said Rule (9) shall not be regarded as a member of the service in which the post to which he/she is appointed, and shall not be entitled by reason, only of such appointment, to any preferential right to any other appointment in that or any other service. The Department or the person appointed may revoke the

contractual appointment or discontinue the contract by giving one month's notice in writing on either side."

19) Admittedly, the services of the petitioner were utilized for

a continuous period of ten years. Since the respondents did not

produce any contract agreement and also failed to produce any

record to show that while terminating the services of the

petitioner, the respondent authorities have complied with

clause (e) of the proceedings, through which the petitioner was

appointed or clause (11) of the policy decision vide

G.O.Ms.No.94, General Administration (SR-A) Department, dated

28.03.2003 or para 4 (VII) of G.O.Rt.No.53. In view of the

above, the respondents have not discharged their obligations

and liabilities. Moreover, the petitioner has been appointed by

respondent No.3, who is an appointing authority. The impugned