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2022 DIGILAW 1312 (AP)

Boddu Rathaiah v. State of Andhra Pradesh

2022-11-17

TARLADA RAJASEKHAR RAO

body2022
ORDER : 1. This Writ Petition is filed under Article 226 of the Constitution of India for the following relief: “To issue writ, order or direction more particularly, one in the nature of Writ of Mandamus declaring the action of the third respondent in issuing the impugned Proceedings No. 1316/SRDS/SPM (DM-1)/541/2013 dated 2.1.2014, in terminating the petitioner contract appointment as an Assistant Project Director, Tenali Cluster, District Water Management Agency (DWMA) Guntur as arbitrary and illegal and set-aside the same and pass such other order.” 2. The petitioner was selected as Assistant Project Director, Tenali Cluster, District Water Management Agency, Guntur District, in the year 2005, and he has been working as Assistant Project Director till the date of impugned order dated 02.01.2014. Due to change of Programme Officer from MPDOs to NREGS staff from March, 2013, the petitioner has been appointed/instructed to take charge of the post of Programme Officer for six mandals for wage seekers. It is also the contention of the petitioner that he has received two awards for best service for the years 2010-2011 and 2012-2013 from the District Collector. Basing on the complaint made by the political party, a Special Social Audit team was appointed and conducted an audit in his absence and the present impugned proceedings came to be passed, vide Proceedings No. 1316/SRDS/SPM (DM-1)/541/2013 dated 02.01.2014. As per the impugned proceedings, one Sri M.Arun Prasad, who was suspended by the District Project Coordinator (DPC) on 07.02.2012 and the petitioner herein appointed the wife of the suspended employee and the suspended employee performed the duties of his wife Smt. Sowjanya as de facto Field Assistant and during her tenure, several irregularities were unearthed in the execution of 43 works in the Gram Panchayat and the deviation in those works was to a tune of Rs. 25,43,961/- and basing on the said audit report, the petitioner herein was terminated. The said termination order came to be challenged in the present Writ Petition on the ground that before terminating the services of the petitioner herein no procedure was followed or issued any show cause notice or conducted any enquiry and it amounts to violation of principles of natural justice and prayed to set aside the impugned proceedings. 3. The said termination order came to be challenged in the present Writ Petition on the ground that before terminating the services of the petitioner herein no procedure was followed or issued any show cause notice or conducted any enquiry and it amounts to violation of principles of natural justice and prayed to set aside the impugned proceedings. 3. Learned counsel for the 3rd respondent filed counter on behalf of the 3rd respondent and on behalf of respondents 1 and 2 and he would submit that the petitioner herein has committed several irregularities and the petitioner herein was appointed on contract basis on 20.11.2007 and it comes to an end on 31.03.2013 and there is no extension of contract subsequent to 31.03.2013 and that the post of Assistant Project Director is a fixed tenure post and a disciplinary case is pending against the petitioner and the contract renewal was kept in abeyance till the case is disposed of. This respondent has decided not to extend the term of contract as per Clauses 4, 25 and 33 of the terms and conditions of the contract agreement, which reads as follows: “Clause No. 4: That this contract is a fixed one and there is no commitment on either side to extend the contract. Clause No. 25: The FTE further agrees that the Commissioner, Rural Development, Government of A.P. Hyderabad is vested with unfettered power to terminate this contract service order without prior notice in the event of FTE is found to be indulged in financial irregularity directly or indirectly or involved in any criminal case, misbehavior, misconduct or dishonest behavior of any such actions detrimental to the interests of the organization. Clause No. 33: Any violation of the conditions mentioned above would result in dispensing with the services of FTE without any notice.” 4. Learned counsel for the respondents would further submit that the relationship between the petitioner and the respondents is purely on contractual obligation and the petitioner is infringed to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India much less the fundamental rights are violated. It is also the contention of the respondents that an appeal is provided under the Society for Rural Development Services Rules (SRDS Rules) issued vide G.O.Ms. It is also the contention of the respondents that an appeal is provided under the Society for Rural Development Services Rules (SRDS Rules) issued vide G.O.Ms. No. 338, Panchayat Raj and Rural Development (RD-III) Department dated 06.09.2008 and there is an alternative remedy to the petitioner herein provided under SRDS Rules and sought for dismissal of the Writ Petition. 5. Per contra, learned counsel for the petitioner submits that it trite law that no incumbent can be dismissed or terminated during his services without following due procedure of law, which amounts to violation of principles of natural justice, when the termination itself casts stigma on the part of the incumbent, then, the services of an incumbent cannot be terminated without following due procedure of law much less without issuing show cause notice and without conducting enquiry and relied on Rule 6.2 of the SRDS Rules which enjoins that a delinquent/FTE shall be given 7 days time to rebut the charges and give evidence in his defence by way of written submission and on personal hearing. The delinquent/FTE is provided to rebut the evidence and to give explanation and in the absence of FTE on the date of given for personal hearing, the Disciplinary Authority shall conclude the disciplinary proceedings and pass finally a speaking order based on the evidence on record duly discussing the evidence. Learned counsel for the petitioner would further submit that in the present case, no notice was issued and no personal hearing was given and no explanation was called for, which is contrary to the SRDS Rules, hence, prayed to set aside the impugned order, as it is contrary to the said Rules which amounts to violation of the principles of natural justice and spelt that the present Writ Petition is maintainable in view of the violation of the principles of natural justice. 6. 6. Learned counsel for the petitioner relied on the judgment of the composite High Court in the case of S. Zabeda Parveen vs. A.P. Women’s Co-operative Finance Corporation, Hyderabad and Another, 2016 (1) ALT 469 wherein an issue was framed as “Whether holding of a regular departmental enquiry against the petitioner, who was a temporary contract employee, was necessary?” Learned Judge, after considering the plethora of judgments of the Hon’ble Apex Court, and set aside the impugned order and directed the authorities to conduct enquiry as per Rule 20 of the APCS Rules, 1991. 7. In the case of Radhe Shyam Gupta vs. U.P. State Agro Industries Corporation Limited, (1999) 2 SCC 21 after summing up of the legal position to the effect that where termination of a temporary employee or probationer is simpliciter and misconduct was the motive behind such termination no enquiry is necessary, but where misconduct constitutes foundation of the termination order, regular departmental enquiry must precede such termination. 8. In Radhe Shyam Gupta’s case (supra), Hon’ble Supreme Court determined that when a misconduct constitutes foundation of the termination order, regular departmental enquiry must precede such termination. In the present case, it was attributed to the petitioner that he misappropriated the amounts, which is a misconduct, hence, a regular departmental enquiry must precede before such termination. 9. In S. Zabeda Parveen’s case (supra), the society has adopted Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (APCS Rules, 1991). In the said case, the A.P. Women’s Co-operative Finance Corporation has terminated the services of the petitioner therein deviating the procedure as contemplated under Section 20 of the APCS Rules, 1991, as such, the composite High Court has set aside the termination order and directed the disciplinary authority to conduct enquiry by following Rule 20A of the APCS Rules, 1991 and directed to conduct enquiry by following the procedure as contemplated under Rule 20A of the APCS Rules, 1991. 10. 10. Learned counsel for the respondents would rely on the judgments in the case of U.P. State Textile Corporation Ltd. vs. Suresh Kumar, (2011) 15 SCC 180 and Naripogula Anandaiah vs. State of Andhra Pradesh, W.A. No. 719 of 2016 dated 16.08.2016 for the proposition that an employee appointed for a fixed time, which would have come to an end, no relief beyond that period could have been given to the employee by the Tribunal or the High Court. 11. Even in Suresh Kumar’s case (supra), the Hon’ble Apex Court held that if the stigma is addressed the regular enquiry must precede. 12. In the present case, it was attributed/imputed that the writ petitioner has misappropriated and deviated the funds, which is a misconduct under the APCS Rules. Hence, the termination of service is a stigmatic termination and even the SRDS Rule postulated a procedure for taking disciplinary action and the disciplinary authority shall duly exercise power to enforce rules and ethical guidelines, deviation would amount to violation of natural justice. 13. In view of the same, the impugned order is liable to be set aside and, accordingly, it is set aside and it is remanded to the Enquiring Authority to conduct enquiry as contemplated under the SRDS Rules, issued vide G.O.Ms. No. 338 dated 06.09.2008 and the said procedure shall be completed within a period of three months from the date of receipt of a copy of this order and the petitioner shall cooperate for the enquiry and if the petitioner fails to cooperate for the enquiry, the respondents are at liberty to pass an ex-parte order and it is needless to say that the petitioner is not entitled for any back wages or reinstatement pending disciplinary enquiry. 14. Accordingly, this Writ Petition is allowed. There shall be no order as to costs of the Writ Petition. 15. As a sequel, interlocutory applications pending, if any, in this Writ Petition shall stand closed.