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2022 DIGILAW 657 (AP)

S. Sridevi v. State of Andhra Pradesh

2022-07-18

K.MANMADHA RAO

body2022
JUDGMENT Dr. K. Manmadha Rao, J. - This petition is filed under Article 226 of the Constitution of India for the following relief:- 'to issue a Writ Order or Direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents in terminating my services without passing any order and without communicating any orders to the Petitioner and later preparing an order of termination by putting back date in Rc. No. APMIP/36/2019, dated 13.02.2020 issued by the Project Director A P Micro Irrigation Project, Visakhapatnam, is wholly illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India apart from being violative of principles of natural Justice and consequently declare that the petitioner is entitled to be continued in service as MIAO with all consequential benefits and pass such other order or orders......' 2. The case of the petitioner is that he was appointed as Micro Irrigation Area Officer on 3.5.2010. the Project Officer APMIP, Visakhapatnam issued notice in Rc. No. APMIP/11/2018 dated 7.2.2018 to submit his explanation that the petitioner and another MIAO are supporting M/s. Nagarjuna Fertilizers and company Private Limited and neglecting the other MI Companies basing on the false complaint made by the rival companies. Thereafter, the petitioner has submitted his explanation dated 13.2.2018 denying the allegations. However, the respondents orally insisting not to attend to duties and the petitioner voluntarily left the job. Thereafter, the Project Director, APMIP, Visakhapatnam issued proceedings in Rc. No. APMIP/73/2015, dated 16.4.2018 stating that the petitioner and another person are not eligible for the post of MIAO. However, while fixing the qualification vide Memo dated 9.9.2015 the Project Officer clarified that the existing employees could be continued and the existing vacancies are to be filled up with the newly prescribed qualifications. The respondents kept quiet for some time and again issued proceedings on 16.4.2018 without issuing any notice and without giving any opportunity to the petitioner. Challenging the same, the petitioner filed WP No. 16296 of 2018 before this Court and this Court granted interim order dated 2.5.2018 suspending the impugned termination order dated 16.4.2018 with a direction to continue the petitioner in service for two weeks and the said interim order was extended until further orders. Challenging the same, the petitioner filed WP No. 16296 of 2018 before this Court and this Court granted interim order dated 2.5.2018 suspending the impugned termination order dated 16.4.2018 with a direction to continue the petitioner in service for two weeks and the said interim order was extended until further orders. It is further stated that in pursuance of the above order, the petitioner was admitted to duty on 11.5.2018 in the post of Micro Irrigation Area Officer. However, on 23.12.2019 the petitioner was posted as Junior Assistant and his salary was reduced to Rs. 5000/- per month. Accordingly, the petitioner made representations on 18.3.2020 and 9.7.2020 requesting to continue the petitioner in service. In spite of repeated requests made by the petitioner the respondents have not continued the petitioner in service. Thereafter, conducted enquiry and the enquiry officer submitted his report on 25.11.2019. Basing on that, the Collector & District Magistrate-Chairman of Horticulture, Visakhapatnam vide Note No. 4 of Rc. No. APMIP/36/2019 dated 09.2.2020 issued orders stating that removing the petitioner from the service with immediate effect. Accordingly, vide Rc. No. APMIP/36/2019, dated 13.02.2020, the District Collector and Chairman, APMIP, Visakhapatnam ordered to withdraw the services of the petitioner and basing on the same, the petitioner was surrendered to the outsourcing agency w.e.f. 13.2.2020. Thereafter, the petitioner made representations dated 09.07.2020 to the respondents and also to continue her and to pay salary. However, the respondents did not take any action so far. Hence, the present writ petition. 3. Counter affidavit has been filed by the 4th respondent while denying all the averments made in the petition contended that the petitioner is misleading this Court by allegations again that no orders are communicated to her and only the removal orders dated 9.2.2020 were prepared to escape the respondents from contempt. In fact the petitioner is the employee of M/s. Paniel Enterprises sponsored to work as MIAO by a contract agreement with the agency. Accordingly, the petitioner's salary was paid by her employer agency M/s. Peniel Enterprises when to whom the petitioner was surrendered on her misdeeds. It is stated that the petitioner was went away from the office on 13.02.2020 AN without acknowledging her surrendered letter issued to the M/s. Peniel Enterprises observing the District collectors orders that to file police complaint on the preparation of fake documents of forgery of signature and obtained sanction for subsidy. It is stated that the petitioner was went away from the office on 13.02.2020 AN without acknowledging her surrendered letter issued to the M/s. Peniel Enterprises observing the District collectors orders that to file police complaint on the preparation of fake documents of forgery of signature and obtained sanction for subsidy. The police case is not filed as the petitioner was surrendered to her employer agency and the damages were recovered from the others together involved in preparation of fake lease documents on forgery of signature. It is further stated that the complaint dated 16.3.2019 against the petitioner and others prepared fake lease documents and consequences of surrendering her services to her employer is well known to the petitioner since she actively involved in it, but expressing false innocence filing complaints with different allegations at different institutions. Hence, prayed to dismiss the writ petition. 4. Heard learned counsel appearing for the petitioner and learned Government Pleader appearing for the respondents. 5. In view of a close scrutiny of the impugned order shows, as rightly argued by learned counsel for petitioner, after noting in detail the allegations, the 4th respondent issued proceedings, without conducting any enquiry. 6. Therefore, it is needless to emphasize the order is devoid of reasons and bereft of following the principles of natural justice. In similar circumstances, a learned Single Judge of High Court of Andhra Pradesh at Hyderabad, having found that no opportunity of hearing was afforded to the petitioner therein and his explanation was not considered by the authority, set aside the impugned order of termination of the petitioner therein from the service and directed the concerned authority to pass appropriate order after affording a personal hearing to the petitioner. The said order squarely applies to the facts of the case on hand. 7. No doubt, it is argued by learned Government Pleader for respondents that an appeal provision is provided in the concerned rules and thereby the writ is not maintainable. I am not convinced with this argument for the reason, in the instant case there is a discernible violation of principles of natural justice as noted supra. 8. Though admittedly the petitioner submitted her written explanation, the same was not considered and no personal hearing was also granted to the petitioner at the time of enquiry. Therefore, the writ petition is maintainable. 9. In Whirlpool Corporation Vs. 8. Though admittedly the petitioner submitted her written explanation, the same was not considered and no personal hearing was also granted to the petitioner at the time of enquiry. Therefore, the writ petition is maintainable. 9. In Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others AIR 1999 SC 22 regarding maintainability of writ petition in the context of availability of alternative and efficacious remedy, the Apex Court held thus: 14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, prohibition, Qua Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for 'any other purpose'. 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged (emphasis supplied). The instant case falls in one of the exceptions carved out by the Apex Court, the principles of natural justice is a casualty here. 10. Having regard to the facts and circumstances of the case and submissions of the both the counsel, the impugned proceedings in Rc. No. APMIP/36/2019, dated 13.02.2020 passed by the respondents against the petitioner is hereby set aside and the matter is remanded to the 4th respondent to conduct elaborate enquiry in accordance with law, within a period of eight (08) weeks from the date of receipt of a copy of this order. 11. Accordingly, the writ petition is disposed of. No costs. As a sequel, all the pending miscellaneous applications shall stand closed.