A. P. Tourism Development Corporation Limited v. B. Nandeswar Rao
2014-06-09
CHALLA KODANDA RAM, L.NARASIMHA REDDY
body2014
DigiLaw.ai
Judgment : L. Narasimha Reddy, J. 1. This Writ Appeal is directed against the judgment, dated 24.04.2014, delivered by the learned Single Judge of this Court in W.P.No.6503 of 2014. The writ petition was filed by the sole respondent herein. 2. The appellants issued a notification inviting applications for appointment of Assistant General Manager, on contract basis, for a period of two years extendable subject to certain conditions. The respondent was one of the applicants and in the interview that ensued, he was selected. He was appointed through order, dated 04.03.2013, and he joined duty on 27.03.2013. One month thereafter, he was posted as Divisional Manager at Warangal and he was placed incharge of two hotels, two resorts and boat units. 3. On 29.07.2013, the 2nd appellant issued a charge memo to the respondent alleging certain acts of misconduct. Explanation was submitted thereto by the respondent, on 17.08.2013. Not satisfied with that, the 2nd appellant issued order, dated 20.08.2013, terminating the services of the respondent. Assailing the same, the respondent filed the writ petition. It was pleaded that none of the allegations made against him are true and that no departmental enquiry was conducted. It was also urged that the order of termination has the effect of attaching stigma to him and the same could not have been done unless a departmental enquiry was conducted. Grievance was also made, as to the non-issuance of notice of one month or payment of salary in lieu thereof, to the respondent. 4. The appellants opposed the writ petition. According to them the appointment of the respondent was purely contractual in nature and the termination was strictly in terms of contract of appointment. They further pleaded that the principles of natural justice were complied with, since a charge memo was issued and explanation, submitted by the respondent, was considered. 5. The learned single Judge took the view that the order of termination has the effect of attaching stigma to the respondent and that such an order could have been passed only after conducting the enquiry and accordingly, allowed the writ petition and directed reinstatement of the respondent. Direction was also issued for payment of salary and other allowances for the period during which he was out of service. Hence, this appeal. 6.
Direction was also issued for payment of salary and other allowances for the period during which he was out of service. Hence, this appeal. 6. Sri A. K. Narasimha Rao, learned counsel for the appellants, submits that admittedly, the appointment of the respondent was under a contract and not on regular basis, and once the respondent is not a regular employee, the question of conducting departmental enquiry does not arise. He submits that the relevant clause for the contract provided for termination without showing any reasons or conducting enquiry; and by its very nature the appointment, for a limited period, is capable of being terminated subject, however, to compliance with the conditions. He further submits that in a representation, dated 14.01.2014, the respondent admitted his lapses and in that view of the matter, holding of an enquiry would be, almost a superfluous exercise. 7. Sri P. Gangaiah Naidu, learned Senior Counsel for the respondent, on the other hand, submits that if one takes into account the contents of the charge memo and the language employed in the order of termination, there is no escape from the conclusion that the entire exercise was undertaken to scandalize the respondent and to attach stigma to his career. He submits that had it been a case of termination simplicitor, the appellants would not have chosen to make allegations of misconduct and refer to them, in the order of termination. Learned senior counsel further submits that the appellants themselves have taken a policy decision vide circular, dated 11.01.2011, to the effect that whenever the services of even a contractual employee are terminated, it must be preceded by a departmental enquiry, and that the respondent was singled out, in this behalf. He has drawn the attention of this Court to the cases of termination of services of certain employees who were employed on contract basis, but their terminations were preceded by a departmental enquiry. 8. The undisputed fact is that the respondent came to be appointed on a contractual basis as an Assistant Manager by the appellants, for a period of two years, extendable subject to certain conditions. He was entrusted with the duties to administer and manage the hotels and resorts at Warangal owned by the appellants. Stated to be on the basis of certain facts noticed in the inspection, conducted by the 2nd appellant, a charge memo, dated 29.07.2013, was issued.
He was entrusted with the duties to administer and manage the hotels and resorts at Warangal owned by the appellants. Stated to be on the basis of certain facts noticed in the inspection, conducted by the 2nd appellant, a charge memo, dated 29.07.2013, was issued. The allegations against the respondent ranging from improper management of the hotels, to the submission of improper claims. On receipt of the charge memo, the respondent submitted an explanation, denying the charges. On consideration of the same, the 2nd respondent passed an order, dated 20.08.2013, stating inter alia, as under: “The reply submitted by him is not convincing. His performance has been disappointing. Moreover, he had not brought these issues to the notice of the Corporate Office. He had executed an agreement while entering the services of the Corporation agreeing that: (a) Clause3: the Contract Appointment is terminable on either side by issue of one month’s notice or in lieu of one month’s wages to the other party without assigning any reasons whatsoever. (b) Clause 13: The Contract Appointee assures the Corporation that he would not indulge in any illegal and unsocial activities and would be a Law abiding person exhibiting high sense of devotion to Duty. (c) Clause 14: The Contract Appointee shall not indulge in any of the activities, which are detrimental to the interests of the Corporation. It is concluded that he had violated the above agreed conditions in clause 13 and clause 14 causing loss and inconvenience to the Corporation by not effectively controlling the units. The image of the Corporation is at risk due to his ineffective functioning. His performance has been disappointing. Therefore, invoking Clause No.3 of the Agreement, the contract Service of Sri B. Nandeeswara Rao, Divisional Manager, Warangal is hereby terminated on payment of One month wage i.e. Rs.34,560/- in lieu of the notice period. General Manager (Finance) may arrange to pay one month wages to Sri B. Nandeeswara Rao duly verifying the dues if any against him.” 9. From a perusal of this, it is clear that the order is much more than the one of termination simplicitor. The contract provided for termination of the services of a contract employee with just a notice of one month or one month salary, in lieu thereof.
From a perusal of this, it is clear that the order is much more than the one of termination simplicitor. The contract provided for termination of the services of a contract employee with just a notice of one month or one month salary, in lieu thereof. Without mentioning any acts or omissions on the part of the employee, the organization could have stated that they do not intend to continue his contract. Two factors are sufficient to treat the impugned order as the one issued by way of punishment. The first is that the innocuous procedure of issuance of a notice of one month or offering to pay one month salary in lieu of notice was not resorted to; and the second is that a detailed mention was made to the acts and omissions on the part of the respondent, and it was ultimately observed “his performance has been disappointing.” 10. After enlisting the alleged acts of misconduct, the 2nd appellant stated in the penultimate paragraph extracted above that on account of the reasons mentioned, he is invoking clause 3 of the agreement and terminating the services. One way of looking at the character of an order of termination of an employee, who was engaged on contract basis, is to see as to what impression a person whom such an employee approaches for employment would get on perusal of the same. Normally, a person, who intends to employ another, would be anxious to see whether there are any testimonials appreciating his performance by the previous employer. Even if there are no such commending documents, the record must be at least clean, without any blemish. Once the order of that termination refers to several acts, which reflect the misconduct and inefficiency, of the person, his career stands damned to that extent. 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.
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. Added to that, the 1st appellant itself took a policy decision on 11.01.2011 to the effect that whenever the services of even a contract employee are terminated, the departmental enquiry must be conducted. Reference was made to certain observations made by this Court in W.P. No.27829 of 2009. The relevant portion reads as under:- “In view of the orders of the Hon’ble A.P. High Court the Corporation should hold proper enquiry on the Contract / Manpower employees on the allegations / violations and recommend necessary action based on the enquiry report. Further it is to inform that in future before any Contract/ Manpower employee has to be disengaged a proper enquiry is required to be conducted through a competent officer and based on the enquiry report necessary action proposed may be taken for termination / disengagement of the charged Contract / Manpower employee.” 12. Instances are brought to the notice of this Court where the services of even contractual employees of the appellants are terminated only after conducting departmental enquiry. Therefore, we do not find any basis to interfere with the findings and conclusions arrived at by the learned single Judge as to the mode of termination and its legal effect. 13. Now remains the question as to the steps to be taken vis-à-vis the respondent. The learned single Judge intended to give a quietus to the entire issue by setting aside the order of termination and by directing his reinstatement and extension of benefit of wages and increments. We are of the view that such a course does not accord with the settled principles of law. If the appellants feel that there is no necessity of conducting enquiry, a different type of order must be issued. If on the other hand, it emerges that enquiry must be conducted, the matter must be left open. The employment of the respondent is vis-à-vis a post which carries with it, the obedience to the appellants. 14.
If the appellants feel that there is no necessity of conducting enquiry, a different type of order must be issued. If on the other hand, it emerges that enquiry must be conducted, the matter must be left open. The employment of the respondent is vis-à-vis a post which carries with it, the obedience to the appellants. 14. We are, therefore, direct that the respondent shall be deemed to be under suspension from the date of termination and from then onwards he shall be paid 50% of the emoluments. If the appellants intend to initiate penal proceedings against the respondent, they shall appoint an Enquiry Officer forthwith and conclude the proceedings within a period of six (6) weeks from today. 15. The Writ Appeal is partly allowed to the extent indicated above. There shall be no order as to costs. Miscellaneous petitions, pending if any, shall stand closed.