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2018 DIGILAW 637 (AP)

S. Tulasi Vasundhara v. State of Andhra Pradesh

2018-08-29

M.SEETHARAMA MURTI

body2018
JUDGMENT : M. SEETHARAMA MURTI, J. 1. This writ petition, under Article 226 of the Constitution of India, is filed requesting to issue a writ of mandamus or any other writ/order declaring the action of the respondents in terminating the services of the petitioner orally and without issuing any proceedings and in not permitting the petitioner to attend to her duties as Library Assistant, from 1.6.2018, as wholly illegal, arbitrary and violative of Articles 13, 16 and 21 of the Constitution of India. In the writ petition, a consequential direction to the respondents to continue the petitioner in service as Library Assistant, with all consequential benefits is also sought. 2. I have heard the submissions of Sri Ravi Kondaveeti, learned Counsel appearing for the petitioner; of learned Government Pleader for Higher Education (AP) appearing for respondents 1 & 4; of Sri C. Sudesh Anand, learned Standing Counsel appearing for respondents 2 & 3; and, of Sri V. Kishore, learned Standing Counsel appearing for respondent No. 5. I have perused the material record. 3. The case of the petitioner is this: The petitioner is having other qualifications apart from Postgraduate Degree in Library Sciences; she has also completed a certificate course in SOUL Software Programme (Software for University Libraries) in Library Management from INFLIBNET Centre, Gujarat University Campus, Ahmedabad. She was selected and appointed by the respondent-University as Library Assistant in June, 2010, by terming her appointment as outsourced appointment in order to avoid regularization of her services though there is a regular vacancy available. The petitioner continued to work as Library Assistant in the University by discharging her duties to the utmost satisfaction of her superiors. As number of books useful to the students as well as teaching staff are available and as the existing accommodation is not sufficient, the petitioner requested the University authorities to provide more accommodation; however, no accommodation was provided. Therefore, the petitioner made a representation for the said purpose. Since then, the Principal and staff members started harassing her. Therefore, she made a representation to the Vice-Chancellor bringing to the notice of the said authority, the harassment being resorted to against her by the Principal and other staff members. Instead of taking action against those persons, the respondents orally directed the petitioner not to attend to duties from 1.6.2018. When the petitioner made enquiries, the Registrar and Vice-Chancellor orally stated that her services were terminated. Instead of taking action against those persons, the respondents orally directed the petitioner not to attend to duties from 1.6.2018. When the petitioner made enquiries, the Registrar and Vice-Chancellor orally stated that her services were terminated. No orders were passed terminating her services. She approached R.K. Force Security and Services, the 6th respondent herein, which is an outsourcing agency and asked as to why she is not being permitted to attend to duties. The Proprietor of the said agency also stated that the Vice-Chancellor, Principal and the Registrar orally instructed him not to permit the petitioner to attend to duties. Her request to give an order terminating her services was declined and no order is issued to her till today. Similarly situated persons earlier approached this Court and this Court granted interim orders in their favour and the said interim orders granted by the learned Single Judge of this Court were confirmed by a Division Bench in the writ appeal. The State Government has issued orders to prevent irregularities being resorted to by the departments and outsourcing agencies against the outsourced employees. In fact, guidelines are also prepared for protecting the contract employees/outsourced persons. Hence, the outsourced persons cannot be discontinued without the acquiescence of the employer. The departments are required to create grievance cells to attend to the complaints received from the contractual employees and outsourced persons regarding payment of remuneration etcetera. The guidelines deal with not only the entitlement of the outsourced employees/contract employees to casual leave etcetera but also the powers of the controlling authorities. As per the Government Orders, outsourced employees taken on outsourcing basis against sanctioned vacancies have to be continued for subsequent years. However, rule of reservation has to be followed. Minimum remuneration is also fixed, vide guidelines issued under various Government Orders. Thus, the Government authorities have taken many measures to avoid irregularities being committed by the departments and outsourcing agencies against outsourced employees and to give job protection to such employees. Further, the Government are taking steps for regularization of the employees in the Universities who are working on contract basis/temporary/outsourcing basis. In order to engage their own interested persons in place of the petitioner, the respondents are trying to terminate the services of the petitioner without following the procedure and are not permitting her to attend to her duties by orally stating that her services are terminated. In order to engage their own interested persons in place of the petitioner, the respondents are trying to terminate the services of the petitioner without following the procedure and are not permitting her to attend to her duties by orally stating that her services are terminated. Hence, having no other alternative remedy, the petitioner approached this Court by way of this writ petition. 4. The 2nd respondent filed a counter on behalf of respondents 2 & 3. The case of the respondents 2 and 3 is as under: 'The petitioner is an outsourced employee and her services were outsourced through the 6th respondent agency and hence, there is no contract with the outsourced employees including the petitioner herein. There is a contract between the 6th respondent agency and the 2nd respondent-University. The petitioner was employed as a Library Assistant, on outsourced basis and she is an outsourced employee. She has no legal right for regularization of her services automatically. Regular appointments are to be made through APPSC selection process. Hence, the writ petition is liable to be dismissed. The petitioner has not approached this Court, with the clean hands. She suppressed material facts while filing the writ petition. The petitioner gave complaints, dated 9.1.2018 and 27.1.2018 against the Principal, KRU Campus College, and Library Coordinator, KRU, and some of the employees from teaching and non-teaching staff also made allegations against the petitioner. In the said circumstances and in view of the gravity of the allegations and the directions of the Supreme Court, the Vice-Chancellor, Krishna University, issued proceedings, dated 16.5.2018, appointing a Three Member Lady High Power Inquiry Committee to enquire into the complaints filed by the petitioner. The following are the members of the High Power Committee: S. No Name of the Member Nominated 1. Prof. L. Jaya Sree, Former Professor, Acharya Nagarjuna University, Guntur-Chairperson 2. Prof. P. Sri Devi, Professor in Law, Damodaram Sanjivayya National Law University, Sabbavaram, Visakhapatnam-Member 3. Dr. V.R Jyostna Kumari, Principal, V.S.R Government Degree College, Movva-Member The High-Power Inquiry Committee met, on 28.5.2018, at 10.30 a.m., at the Vice-Chancellor's chambers and conducted enquiry on the matters alleged in the complaints of the petitioner and submitted its report on the same day to the Registrar of the University. Dr. V.R Jyostna Kumari, Principal, V.S.R Government Degree College, Movva-Member The High-Power Inquiry Committee met, on 28.5.2018, at 10.30 a.m., at the Vice-Chancellor's chambers and conducted enquiry on the matters alleged in the complaints of the petitioner and submitted its report on the same day to the Registrar of the University. The copy of the said report, dated 28.5.2018, discloses that the Committee summoned all staff members whose names were mentioned in the complaints of the petitioner and that their explanations were recorded and the proceedings of enquiry were video-graphed and that during the course of enquiry, Ms. A. Krishna Kumari, Mr. Sadakhathulla Baig, Ms. M. Sujatha, Ms. Priyanka, Ms. Naga Lakshmi, Mr. Brahmaji, and Dr. J.N. Lavanya Latha gave their statements and the same were recorded and that the petitioner was unable to produce her evidence to prove the allegations made in her complaints. The Enquiry Report reflects that the members of the High-Power Committee after such enquiry unanimously arrived at the following observations: '(a) That there is no harassment and ill treatment against complainant by the respective Principal and Library Coordinator. (b) That there is no harassment and ill treatment against any one of the staff members of the Library by the respective Principal and Library Coordinator. (c) That she is irregular in her duties.' The High-Power Enquiry Committee opined that the allegations made by the complainant against the Principal and others are baseless and that necessary action can be taken by the University authorities against the petitioner. Hence, the 2nd respondent discontinued the services of the petitioner as an outsourced employee on daily wages, from 1.6.2018. Accordingly, the 2nd respondent, vide proceedings, dated 31.5.2018, communicated to the 6th respondent for discontinuation of services of the petitioner. Question of communicating the fact of discontinuation of services of the petitioner by the University directly to the petitioner does not arise as the petitioner is an outsourced employee of the University and her services are outsourced through the 6th respondent-agency. The petitioner placed reliance on certain interim orders granted in some other writ petitions, which were confirmed in the writ appeal by a Division Bench of this Court; however, the facts of those cases are totally distinct and different from the facts of the case on hand. The University while employing outsourced employees and in dealing with them, has not violated any Government Orders. The University while employing outsourced employees and in dealing with them, has not violated any Government Orders. The petitioner, who is an outsourced employee, is disturbing the atmosphere in the University by approaching social media about the alleged harassment of the employees of the University and its alleged administration, without there being any iota of truth and thereby she is damaging the reputation of the University, its authorities and the employees of the University. The University has taken utmost precautions in appointing a High-Power Committee to enquire into the matter immediately; and, due opportunity was given to the petitioner and other members of staff to produce the evidence; and, the enquiry was conducted in accordance with the principles of natural justice; and, thereafter, to protect larger public interests, action was taken and proceedings were issued by the 2nd respondent to the outsourcing agency for discontinuation of the services of the petitioner. All these facts were suppressed by the petitioner in her affidavit. The writ petition is liable to be dismissed for suppression of material facts and as the contentions of the petitioner are devoid of merit' 5. During the course of submissions, learned Counsel for the petitioner while reiterating the pleaded case of the petitioner submitted as follows: Though an enquiry was conducted, copy of the enquiry report was not furnished to the petitioner. For the first time through the counter & additional documents filed along with the counter, the petitioner is made aware of the contents of the enquiry report. When an enquiry was initiated pursuant to the complaints of the petitioner, the High-Power Committee, without any authority and without providing an opportunity to the petitioner, recorded one more finding, along with other findings, that the petitioner is 'irregular in her duties'. The said finding casts a stigma and effects the career progression of the petitioner. Even the services of an outsourced employee, whose services are outsourced through an agency, cannot be stigmatized without an enquiry. In the counter-affidavit, while reiterating that the petitioner is irregular in her duties, it is also stated that the petitioner is disturbing the atmosphere in the University and several other allegations were also made. In that view of the matter and as the foundation for termination of the services of the petitioner is stigmatic allegations, the petitioner is entitled to the reliefs claimed in the writ petition. 6. In that view of the matter and as the foundation for termination of the services of the petitioner is stigmatic allegations, the petitioner is entitled to the reliefs claimed in the writ petition. 6. Learned Standing Counsel appearing for the respondents 2 & 3 while reiterating the pleaded case of the respondents, which is referred to supra, has drawn the attention of this Court to the proceedings of the Vice-Chancellor whereby, a High-Power Committee with reputed professors of various Universities was constituted and also the conclusions in the report of the said Committee which are based on the statements recorded by it and as follows: 'The petitioner made false allegations against the superior officers of the University. Her allegations were found to be false by the said Committee. She is found to be irregular in her duties. About (50) employees, whose services are outsourced, are working in the University. The petitioner, who is an outsourced employee, is disturbing the atmosphere in the University by approaching social media and by making false allegations with regard to harassment of the employees of the University and its administration, without there being any iota of truth. She is damaging the reputation of the University, its authorities and the staff (teaching & non-teaching). It would be difficult for the authorities to smoothly function and run the University in the manner expected if employees like the petitioner are continued in service. Since the petitioner is only an outsourced employee, the University communicated to the agency, the proceedings requesting to discontinue the services of the petitioner from 1.6.2018 as an outsourced employee on daily wages and the same was implemented by the outsourcing agency. The petitioner, who suppressed the material facts, is not entitled to equitable and discretionary relief as per the settled legal position.' 7. I have given detailed and thoughtful consideration to the facts and submissions. 8. The petitioner, who suppressed the material facts, is not entitled to equitable and discretionary relief as per the settled legal position.' 7. I have given detailed and thoughtful consideration to the facts and submissions. 8. The main grievance of the writ petitioner, who is admittedly an outsourced employee and who worked as Assistant Librarian in the Library of the University, is that her services were orally terminated without following the procedure established by law and that she was not served with any proceedings with reasons for such termination of her services and that from the counter-affidavit and material record filed by the respondents along with the counter-affidavit she came to know about the report of the High Power Enquiry Committee that her termination was a result of the report of the said Committee and also its finding that she was 'irregular in her duties' and, therefore, her termination in view of the facts that have come to light is punitive in nature and, therefore, she is entitled to the relief claimed in the writ petition. 9. Per contra, the case of the respondents is that the allegations made by the petitioner in her complaints were found to be false by the High Power Enquiry Committee and that she being an outsourced employee engaged through the 6th respondent agency, the necessary communication is sent to the said agency and there is no need to communicate any proceeding to the petitioner directly and her termination is not punitive and that the University can at any time simply terminate the services of an outsourced employee like the petitioner. 10. The issue is not with regard to the nature of the employment of the petitioner, who is admittedly an outsourced employee. The question is not whether the petitioner's services were engaged on temporary basis or on contractual basis or on outsourcing basis or whether she is a probationer. The vital question is as to whether the termination of the services of the petitioner is to be treated as based or founded upon misconduct and will be punitive and if so, the same would affect the rest of her career. The vital question is as to whether the termination of the services of the petitioner is to be treated as based or founded upon misconduct and will be punitive and if so, the same would affect the rest of her career. This is so because if the findings as to misconduct of a definitive nature are arrived at after an enquiry and the termination order is issued based on such an enquiry and report, the same would cast a stigma, which would attach to the rest of her career. In which event, such termination, being punitive since based on such foundation, would affect the future career and opportunities of employment of the person who suffered such termination. 11. It is profitable to first refer to the settled legal position. In Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and others, AIR 1999 SC 609 , having referred to the catena of decisions, the Supreme Court while dealing with the legal aspect, which, in the considered view of this Court, is relevant to the case on hand, held as follows: 34. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J., (as he then was) in Ram Narayan Das's case (1961) I LLJ 552 (SC). It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry. It has been so decided in Champaklal's case (1964) I LLJ 752 (SC). The purpose of the preliminary inquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. It has been so decided in Champaklal's case (1964) I LLJ 752 (SC). The purpose of the preliminary inquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental inquiry is started, a charge-memo issued, reply obtained, and an Enquiry Officer is appointed -- if at that point of time, the inquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the Enquiry Officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur's case, (1970) I LLJ 373 (SC) and in Benjamin's case, (1967) Lab LJ 718) (SC). In the latter case, the departmental inquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J., in Gujarat Steel Tubes case, (1980) I LLJ 137 (SC), the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive. 35. But in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental inquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the Inquiry Officer, which are all arrived at behind the back of the employee even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive, in such cases. The Supreme Court in a recent decision in Director, Aryabhatta Research Institute of Observational Sciences (ARIES) and others v. Devendra Joshi and others, AIR 2018 SC 1493 , referred to the above legal position which was followed in Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and others, AIR 2016 SC 467 . 12. In the case on hand, in the enquiry report submitted by the High-Power Enquiry Committee reflects that on the complaints made by the petitioner against the Superior Officers, an enquiry was held by the said Committee and that the enquiry revealed that her complaints against the Principal, Registrar, Coordinator and other members of staff are false. In the said report submitted by the said committee to the Registrar, it was also stated that 'the petitioner is irregular in her duties'. Further, though there is no termination letter directly issued to the petitioner, the communication sent to the outsourcing agency reflects that the agency was requested to discontinue the services of the petitioner as the High Power Committee concluded that 'the petitioner is irregular in her duties'. Having regard to the events that preceded the termination, the petitioner contends that the alleged misconduct viz., 'irregular in her duties' was one of the foundations for termination of her services as an outsourced employee and that therefore, the termination is punitive and that it casts a stigma and that the stigma would attach to the rest of her career. The respondents while admitting the events that preceded the termination contend that at best, the said events constitute a motive but not a foundation for termination. The respondents while admitting the events that preceded the termination contend that at best, the said events constitute a motive but not a foundation for termination. The fact of the matter is that based on the complaints of the petitioner against the Registrar and others, an enquiry was undertaken by appointing a high power enquiry committee and that enquiry committee while recording the finding that the averments in the complaints of the petitioner are false further found that the petitioner is irregular in her duties. Further, in the letter addressed to the outsourcing agency, the findings of the enquiry committee including the finding 'that she is irregular in her duties' was also stated. In that view of the matter, this Court finds that the termination of the case on hand is to be treated as based or founded upon mis-conduct and will be punitive. Therefore, the termination in the case on hand, which is based upon the report of the High Power Enquiry Committee, is unsustainable. 13. However, before proceeding further it is to be noted that the respondents strongly contended that the petitioner suppressed material facts and that therefore, her writ petition is liable to be dismissed. It is true that the petitioner has not disclosed in her writ petition that on her complaints, an enquiry was ordered by appointing a High Power Enquiry Committee and that an enquiry was held. However, her case is that the result of the enquiry is not made known to her and that the report, if any, of the enquiry committee is not furnished to her and that she came to know about the report and the findings in the report, after the same is filed along with the counter-affidavit of the respondents. However, she ought to have stated that on her complaints an enquiry was ordered and held. She did not state so in her affidavit filed in support of the writ petition. She had only stated that she made a representation to the Vice-Chancellor bringing to the notice of the said authority the harassment being resorted to against her by the Principal and other staff members and that instead of taking action against those persons, the respondents orally directed the petitioner not to attend to her duties from 1.6.2018. Be that as it may, this Court already found that termination of the petitioner is punitive. She is highly qualified. Be that as it may, this Court already found that termination of the petitioner is punitive. She is highly qualified. She holds three post graduate degrees viz., M.Com., M.Li.Sc., and M.B.A. (HRD). She also possesses a certificate in Software for University Libraries. Therefore, considering the wholesome nature of the case, this Court finds that the writ petition need not be dismissed for mere suppression of the fact that on her complaints an enquiry was ordered and was held, more particularly when the result of such enquiry was not communicated to her. 14. Now, the short question is as to what is the appropriate relief to be granted to the petitioner, in the facts and circumstances of the case and in the light of the fact that she is only an outsourced employee and in view of the contentions of the University that an outsourced employee can be terminated without any enquiry and that it would be difficult for the University to manage and control the outsourced employees who are about fifty in number in the event the employee like the petitioner is directed to be reinstated with instructions to conduct fresh enquiry. Having given earnest consideration to this aspect of the matter as well, this Court is of the view that the writ petition can be ordered with appropriate directions as indicated infra. 15. In the result, the writ petition is allowed in part declaring the action of the respondents in terminating the services of the petitioner on the foundation of the conclusions in the enquiry report and by merely sending a communication to the outsourcing agency to discontinue the services of the petitioner is unsustainable in the facts and circumstances of the case; and, as a sequel, the respondents are directed to deal with the issue of termination of the services of the petitioner in strict accordance with the procedure established by law and the guidelines, if any, applicable to her case and complete the necessary exercise in the above regard as expeditiously as possible, and in any event within two months from the date of receipt of a copy of this order. The outcome of such exercise would decide as to whether the petitioner would be entitled to continue in service on outsourced basis and also payment of wages through the agency/6th respondent. The outcome of such exercise would decide as to whether the petitioner would be entitled to continue in service on outsourced basis and also payment of wages through the agency/6th respondent. It is made clear that in the event the necessary exercise is not completed within the time frame stipulated above, the respondents shall continue to avail the services of the petitioner as in the past as an outsourced employee by making a request to the agency to continue her services. 16. There shall be no order as to costs. 17. Pending miscellaneous petitions, if any, shall stand closed.