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Andhra High Court · body

2012 DIGILAW 874 (AP)

Bojja Subba Rao v. Government of Andhra Pradesh, rep. by its Secretary, Panchayat Raj Department, Rural Development Wing, Secretariat

2012-09-14

M.S.RAMACHANDRA RAO

body2012
Judgment : This writ petition has filed by the petitioner challenging the proceedings of the second respondent in reference No.4829/RD.V(2)/99, dated 5.1.2000 and for consequential direction to the respondents to regularize his services forthwith from the date of his initial appointment in terms of G.O.Ms.No.212 (Finance and Planning (FW.PC.III) Dept dated 22.4.1994. 2. The petitioner was initially appointed as Section Writer on 16.10.1986 on daily wage basis by the District Rural Development Agency, Prakasam Bhavan, Ongole, Prakasam District ( for short ‘DRDA’). 3. The DRDA is a project under the control of the Panchayat Raj Department headed by the second respondent. The main function of the DRDA is to help the rural people by lending the loans or giving financial assistance in order to augment their development. The District Collector is the Chairman of the DRDA at District level. The respondents have also constituted Handicrafts Artisans Marketing Promotion Institute (for short ‘HAMPI’) , a co-operative society regd. Under the A.P.Co-operative Societies Act,1964 with the 4th respondent as it’s Managing Director . Services of the Staff working under him were being utilized either in DRDA or in its subsidiary HAMPI. 4. The petitioner worked in DRDA as Section Writer from 24.10.1986 to 31.03.1987. From 1.4.1987, the petitioner was made to work on consolidated wages as a salesman-cum- clerk in HAMPI. vide order dated 10.10.1997 of the Project Director, DRDA, Ongole, the petitioner along with the three other employees were ordered to assist the personnel of DRDA and to keep the attendance register of HAMPI staff on the table of the Superintendent (DRDA). 5. The Government of Andhra Pradesh issued G.O.Ms.No.212, Finance & Planning (FW-PC-III) Department, 22.4.1994 providing for regularizing the services of persons who worked continuously for a minimum period of five years in Government Offices, local bodies, Universities, public sector undertakings and various other bodies and institutions operating on government finances and who are continuing as on 25.11.1993, subject to the fulfillment of the following conditions: “1) The persons appointed should possess the qualifications prescribed as per rules in force as on the date from which his/her services have to be regularized. 2) They should be within the age limits as on the date of appointment as NMR/Daily Wage employee. 3) The rule of reservation wherever applicable will be followed and back-log will be setoff against future vacancies. 4) Sponsoring of candidates from Employment Exchange is relaxed. 2) They should be within the age limits as on the date of appointment as NMR/Daily Wage employee. 3) The rule of reservation wherever applicable will be followed and back-log will be setoff against future vacancies. 4) Sponsoring of candidates from Employment Exchange is relaxed. 5) Absorption shall be against clear vacancies of posts considered necessary to be continued as per work-load excluding the vacancies already notified to the Andhra Pradesh Public Service Commission/District Selection Committee. 6) In the case of work charged Establishment, where there will be no clear vacancies, because of the fact that the expenditure on work charged is at a fixed percentage of P.S. charges and as soon as the work is over, the services of work charged establishment will have to be terminated, they shall be adjusted in the other departments, District Offices provided there are clear vacancies of last Grade Service.” 6. The petitioner filed W.P.No.18400 of 1998 seeking regularization of his services in terms of the said G.O contending that he has satisfied all the requirements laid down in the said G.O and also contending that the action of the respondents in not regularizing his services is arbitrary and illegal. On 9.6.1999, the said writ petition was allowed by this Hon’ble Court and a direction was given to the respondents to consider the case of the petitioner for regularization of his services in accordance with G.O.Ms.No.212, dated 22.4.1994 and to pass appropriate orders within a period of eight weeks from the date of receipt of a copy of this order. On 23.7.1999, the said order was further modified in W.P.No.17419 of 1998 and the respondents were directed to consider the case of the petitioner for regularization of the services not only in accordance with the G.O.Ms.No.212, dated 22.4.1994, but also in the light of the Judgment of the Supreme Court in District Collector/Chairman and others Vs. M.L.Singh and others (1) 1998 (2) ALT 5 (SC)and pass orders within a period of eight weeks from the date of receipt of a copy of the said order. 7. Alleging that the said order was not complied with, the petitioner filed Contempt Case No.21 of 2000 in the High Court of Andhra Pradesh. M.L.Singh and others (1) 1998 (2) ALT 5 (SC)and pass orders within a period of eight weeks from the date of receipt of a copy of the said order. 7. Alleging that the said order was not complied with, the petitioner filed Contempt Case No.21 of 2000 in the High Court of Andhra Pradesh. When the said Contempt Case was pending, the counsel for the 4th respondent informed the Court that an order has been passed in proceeding No. 4829/RD.V(2)/99, dated 5.1.2000 by 2nd respondent holding that the petitioner was not eligible for regularization and he also produced a copy of the said order before the Court. In view of this, the Hon’ble Court dismissed the Contempt Case holding that there was no willful disobedience on the part of the 4th respondent to comply with the order dated 9.6.1999 in W.P.No.18400 of 1998 and that it is open to the petitioner to question the proceedings dated 05.01.2000 of the 2nd respondent. 8. Thereafter, the petitioner filed the present writ petition challenging the impugned proceedings dated 5.1.2000 of the second respondent to declare the same as illegal and arbitrary. 9. Heard Sri M.S.N.Prasad for the petitioner and the Asst.Govt. pleader for Finance and Planning for the Respondents. 10. A reading of the impugned proceedings dated 5.1.2000 shows that the second respondent had rejected the request of the petitioner for regularization on two grounds: a) since the petitioner is not an employee of DRDA, Ongole as on 1.4.1987, his case cannot be considered for regularization in DRDA, Ongole and b) that there is no sanctioned post as on that date in HAMPI to consider the request of the petitioner for regularization in HAMPI; 11. The learned counsel for the petitioner submits that HAMPI is mainly sponsored by DRDA for the promotion of rural artisans, that HAMPI is under the direct control and supervision of DRDA, that the Project Director, DRDA is the Ex-officio Managing Director of HAMPI, that although there is a separate budget allotment for HAMPI, the same is controlled by DRDA and funds have been released to HAMPI for the period 1986 to 1995 directly by DRDA. The petitioner alleges that HAMPI is not a separate entity, that it has no staffing pattern and that it is part and parcel of DRDA under the control of the 4th respondent and all the funds were being allocated by the respondents for the functioning of DRDA and HAMPI .He also contends that the petitioner had joined DRDA on 16.7.1986 as Section Writer and worked there up to 14.12.1986 and that from 14.12.1986 to 31.3.1987 he worked for HAMPI and the salary was paid by DRDA. He contends that from 1.4.1987 onwards, he has been working with HAMPI and salary is paid through HAMPI. He also contended that vide order dated 10.10.1997, the Project Director, DRDA, Ongole, instructed the petitioner and three other employees to assist the personnel of DRDA and to keep the attendance register of HAMPI staff on the table of the Superintendent, DRDA. He therefore contended that HAMPI is nothing but part of DRDA and the employees engaged in working for HAMPI either directly or through DRDA are to be treated as employees of DRDA. He also placed reliance on an order dated 30.9.2002 passed by the Assistant Provident Fund Commissioner & Authority under Section 7 of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for short ‘the Act’) . In the said order , the said authority has held that HAMPI is nothing but a Branch/Department of DRDA under the meaning of Section 2A of the said Act , that the DRDA has been constituted as a Nodal Agency for the specific purpose of ensuring all-round development and growth of the Rural People and the Area within the District concerned and for this very purpose all the development schemes targeted for the upliftment of the poor are being implement directly or indirectly by DRDA such as I.R.D.P etc. The said authority held that HAMPI was sponsored by DRDA, Ongole with the main objective of selling the products manufactured by the Rural Artisans, IRDP beneficiaries, Dwakra Beneficiaries, self-employed youth under TRYSEM and also to supply raw material, tools etc., to artisans so as to enable them to improve their living standards and that not only DRDA is the main sponsor of HAMPI but also major (perhaps only) source of funds to HAMPI and DRDA also has direct supervision and control over the affairs of the HAMPI. The authority also held that there is transferability of the employees from DRDA to HAMPI and vice versa and that in the absence of DRDA, there is no question of survival of HAMPI . The authority, therefore, directed the DRDA, Ongole, to implement the provisions of the Act and Schemes framed there under to all the eligible employees of HAMPI from the date of setting up of HAMPI including the petitioner herein and the other three employees , by remitting the contributions and other charges and by submitting all the statutory returns. The counsel for the petitioner contended that this order of the authority under Section 7A of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 is a quasi judicial order to which the DRDA is a party and the said order, not having been challenged by the DRDA in appeal or by any other appropriate remedy, has become final and operates as resjudicata. He contended that all though the petitioner was made to work in HAMPI, HAMPI is just a branch of DRDA and the third respondent had sent proposals of regularization of daily wage employees as per their seniority and he has clearly shown the petitioner at serial No.1 of the said list (page 35-36 of the petitioner’s material papers) and contended that the petitioner was continuously working from 24.10.1986 and he fulfilled all the eligibility criteria for regularization as per G.O.Ms.212 dt.22.4.1994 and his services are entitled to be regularized in the equivalent post of Junior Assistant which was shown therein as available and vacant. .12. The learned Government Pleader representing the respondents 1 to 4, however, contended that the impugned order has been validly passed and does not suffer from any infirmity. The Government Pleader would contend that HAMPI is a separate organization, that it is not part of DRDA and that the fact that the 4th respondent is an Ex-officio of HAMPI where the petitioner is working does not mean that the services of persons working in HAMPI can be utilized in DRDA and his services cannot be said to be interchangeable. He also contended that the DRDA has prescribed staffing pattern whereas HAMPI is constituted under the different statute (i.e “A.P.Cooperative Societies Act,1964), that HAMPI had no sanctioned staff and therefore, HAMPI cannot be said to be part and parcel of the DRDA. He also contended that the DRDA has prescribed staffing pattern whereas HAMPI is constituted under the different statute (i.e “A.P.Cooperative Societies Act,1964), that HAMPI had no sanctioned staff and therefore, HAMPI cannot be said to be part and parcel of the DRDA. He also contended that the petitioner is only employed on consolidated wages , that the petitioner services were engaged in HAMPI and salaries were paid out of the funds of HAMPI only, that separate attendance registers and acquittance registers for HAMPI and DRDA are maintained, that the wages of employees of DRDA are paid from different heads of accounts and both the said entities have different managing committees, who manage the affairs of the two institutions and that the petitioner is signing in a different attendance register meant for the staff of HAMPI and taking the wages from out of the funds of the HAMPI. The learned Government Pleader therefore contended that the petitioner cannot claim for regularization of his services in DRDA, which is a different organization. 13. In an additional counter filed by the 4th respondent, it is stated that the administration of DRDA is mainly looked after by the Chief Executive Officer, SERP, A.P, Hyderabad, that the Project Director, DRDA cannot quash orders passed by the Commissioner, Rural Development, dated 5.1.2000, which are impugned in the writ petition, that vide the letters dated 27.7.2004 and 20.8.2009, the 4th respondent had informed the Assistant Provident Fund Commissioner, Employees Provident Fund Sub-Regional Officer, Guntur, that HAMPI and DRDA are different and the provisions of the Employees Fund and Miscellaneous Provisions Act,1952 are not applicable to HAMPI and HAMPI was handed over to the liquidator to take further action. 14. I have considered the submissions of both the parties and the documents filed by them. 15. On 2.7.2002, the petitioner and 3 other employees of HAMPI filed a complaint before the Asst.Provident Fund Commissioner, Sub-Regional office, Guntur (competent authority under s.7-A of the Employees Provident Fund and Miscellaneous Provisions Act,1952) alleging that HAMPI is a unit of DRDA, that they had been working there for the previous 16 years and complaining that their management had not extended provident fund benefits to them and sought a direction from the authorities under the Employees Provident Fund and Miscellaneous Provisions Act,1952 for extension of provident benefits to them. The petitioners contended that HAMPI is mainly sponsored by the DRDA, that it is under the direct control and supervision of DRDA, that the Project Director , DRDA is ex-officio Managing Director of HAMPI, that even though there was separate budget allocation for HAMPI, the same is controlled by DRDA and funds have been released to HAMPI for the period 1986-1995 directly by DRDA and that HAMPI is nothing but a part of DRDA and employees engaged and working for HAMPI directly or through DRDA should be treated as employees of DRDA for the purposes of the Employees Provident Fund and Miscellaneous Provisions Act,1952 for extending necessary benefits to them. This was disputed by the DRDA which contended before the said authority that complainants are not employees of DRDA, that they are employees of HAMPI only, that HAMPI is a separate entity and there is no question of extending benefits of the Employees Provident Fund and Miscellaneous Provisions Act,1952 to them by DRDA does not arise. The authority under S.7-A of the Employees Provident Fund and Miscellaneous Provisions Act,1952 framed two issues : a) Whether the Act is applicable to HAMPI on the ground of schedule head and required employment strength? b) Whether HAMPI can be treated as a Branch/Department of the DRDA u/s.2A of the Act ? After considering the material produced by both the complainants and the DRDA, the said authority held that HAMPI is very much a Branch/Department of DRDA within the meaning of S.2A of the Employees Provident Fund and Miscellaneous Provisions Act,1952. It held that HAMPI was sponsored by the DRDA, that is the major (perhaps only) source of funds to HAMPI, that DRDA also has direct supervision and control over the affairs of HAMPI, that there is transferability of employees from DRDA to HAMPI and vice versa and that in the absence of DRDA there is no question of survival of HAMPI . He held that all the provisions of the Employees Provident Fund and Miscellaneous Provisions Act,1952 are applicable to HAMPI from date of it’s setting up and that the employer of the complainants is DRDA and directed it to implement provisions of the said Act and schemes framed thereunder to all the eligible employees of HAMPI from the date of setting up including the complainants therein by remitting the contributions and other charges and by submitting all the statutory returns. 16. 16. The order dated 30.9.2002 of the Assistant Provident Commissioner and Competent authority under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, has been passed after hearing both the petitioner and DRDA. Findings have been given in the said quasi judicial order, after considering the evidence adduced by both parties, that HAMPI is nothing but a branch/department of DRDA. The issue whether HAMPI is a separate entity from DRDA or is part of DRDA was specifically raised, contested and decided in favor of the petitioner in the above proceedings. The said issue was directly and substantially in issue before the said authority. The said authority had exclusive jurisdiction to decide the matter raised before it i.e whether or not to give benefit of the provisions of the said Act to the complainants before it and a decision on the issue “whether HAMPI is a separate entity or a part of DRDA” was necessary for it to decide the matter before it. The said findings have become final and have not been challenged by any of the respondents in any forum. 17. In my view, the said decision, on general principles of resjudicata binds the respondents. 18. The principle of law in such cases is succinctly put in the judgment of the Supreme Court in UjjamBai vs. State of Uttar Pradesh (AIR 1961 SC 1621)at para15 P.1629-1630 as follows: “What is the position with regard to an order made by a quasi-judicial authority in the undoubted exercise of it’s jurisdiction in pursuance of a provision of law which is admittedly intravires? … Whenever a judicial or a quasi-judicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in law or in fact…. The characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong. Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in law or in fact…. The characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasi-judicial body, cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends. These principles govern not only the findings of inferior courts stricto-senso but also findings of administrative bodies which are held to be acting in a judicial capacity. Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction; and provided that they keep within those limits , their decisions must be accepted as valid unless set aside in appeal. Even the doctrine of res-judicata has been applied to such decisions. … In Burn and Co Vs. Their employees ( AIR 1957 SC 38 ), this court said that although the rule of res-judicata as enacted by S.11 of the Code of Civil procedure did not in terms apply to an award made by an industrial tribunal, it’s underlying principle which is founded on sound public policy and is of universal application must apply.” 19. In R.C.Tiwarivs. M.P.State Co-operative Marketing Federation Ltd (1997) 5 SCC 125 ), where a dispute relating to the dismissal of an employee was decided by a Deputy Registrar under the M.P.Co-operative Societies Act,1960 (whose power was held to be wide enough to encompass disciplinary matters relating to employees in a co-operative society on an interpretation of the provisions of S.55 of the said Act), it was held that the matter could not be reagitated before a Labour Court under the Industrial Disputes Act,1947 . It was held that a finding recorded by a Deputy Registrar upholding the misconduct of an employee will constitute res-judicata and even if S.11 CP.C does not in terms apply because it is not a court, but a tribunal having special jurisdiction, the principle laid down thereunder would apply. 20. It was held that a finding recorded by a Deputy Registrar upholding the misconduct of an employee will constitute res-judicata and even if S.11 CP.C does not in terms apply because it is not a court, but a tribunal having special jurisdiction, the principle laid down thereunder would apply. 20. In view of the said order dt.30.9.2002 of the Asst.Provident Fund Commissioner and Authority u/s.7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, whose jurisdiction to pass it has not been questioned by the respondents, it has to be held that HAMPI is a branch of DRDA, that even though the petitioner was made to work in HAMPI, he was and continued to be in the service of DRDA from 16.10.86 . Therefore, the finding in the impugned order passed by the second respondent that the petitioner is not an employee of DRDA, Ongole, is not sustainable. 21. Moreover vide order dated 10.10.1997 of the Project Director, DRDA, Ongole, the petitioner along with the three other employees were ordered to assist the personnel of DRDA and to keep the attendance register of HAMPI staff on the table of the Superintendent (DRDA). If DRDA and HAMPI were two separate entities as contended by the respondents, the petitioner could not have been asked to assist the personnel of the DRDA by the above order. The Collector and Chairman, DRDA, Ongole (third respondent) had himself sent proposals for regularization of services of daily wage/NMR/Consolidated pay workers working in DRDA, Prakasam district mentioning the name of the petitioner at S.No.1 (page 35-36 of the petitioner’s material papers) and stated therein that there is one Junior Assistant Post vacant where the petitioner may be regularized in view of his continuous services from 24.10.1986 till 25.11.1993 (which is the cut of date fixed in G.O.Ms.No.212, dated 22.4.1994. This also would not have been done if HAMPI and DRDA were two separate entities. The fact that the funds for HAMPI were being routed through DRDA and the management control of HAMPI was being done by DRDA shows that , notwithstanding the fact that HAMPI is registered under the A.P.Co-operative Societies Act,1964, it is not a separate entity from DRDA but a part of DRDA when the corporate veil is lifted. 22. The fact that the funds for HAMPI were being routed through DRDA and the management control of HAMPI was being done by DRDA shows that , notwithstanding the fact that HAMPI is registered under the A.P.Co-operative Societies Act,1964, it is not a separate entity from DRDA but a part of DRDA when the corporate veil is lifted. 22. In the impugned order, the second respondent has also said that there is no sanctioned post in HAMPI to consider the request of the petitioner for regularization in HAMPI. In view of the fact the Collector and Chairman, DRDA, Ongole (third respondent) has himself sent proposals for regularization of services of daily wage/NMR/Consolidated pay workers working in DRDA, Prakasam district mentioning the name of the petitioner at S.No.1 (page 35-36 of the petitioner’s material papers) and stated therein that there is one Junior Assistant Post vacant where the petitioner may be regularized in view of his continuous services from 24.10.1986 till 25.11.1993 (which is the cut of date fixed in G.O.Ms.No.212, dated 22.4.1994), the second respondent is not correct in stating that there is no sanctioned post where the petitioner’s services could be utilized. Thus, on both the grounds, the impugned order is erroneous and is set aside. 23. In view of the fact that HAMPI is nothing but the branch of DRDA, that there is a post of Junior Assistant vacant in DRDA as per the proceedings of the third respondent referred to above and as the petitioner fulfills the requirements of continuous service for a period of five years in DRDA and he was also in service on 25.11.1993, the petitioner is entitled for regularization in the post of Junior Assistant in DRDA, Ongole. In District Collector/Chairman and others (1 supra), the Supreme Court held that employees should be regularized w.e.f the date or dates, they completed five years continuous service as per G.O.MsNo.212 dt.22.4.1994. 24. Therefore, the impugned order dated 5.1.2000 of the second respondent is quashed and a consequential direction is issued to the respondents to regularize the services of the petitioner forthwith from the date of his initial appointment in the post of Junior Assistant in DRDA, Ongole. 25. In the result, the Writ Petition is allowed. There shall be no order as to costs.