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2022 DIGILAW 693 (AP)

Kodali Vamsi Mohan v. State of Andhra Pradesh

2022-07-28

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 an appropriate writ order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd respondent in issuing the Memo in Rc. No. A1/1102640/11/2018, dated 1.10.2021 directing the 3rd respondent to call for tenders for work outsource from time to time as per the circular in Rc. No. A1/172691/2018, dated 24.9.2018 as bad, illegal, arbitrary, without jurisdiction, violative of principles of natural justice and violative of Articles 14, 16 21 and 300A of Constitution of India and consequently set aside the same and direct the respondents 2 and 3 to pay the remuneration directly to the petitioners from temple accounts by dispensing with the payment through outsourcing agency and pass such other order or orders.......' 2. The case of the petitioners is that initially the petitioners were appointed on voucher payment basis in the establishment of 3rd respondent temple ranging from 2013 to 2016 and they have successfully completed 8 years of service without any remark. At present outsourcing agency is paying Rs. 15,000/- to the drivers, Rs. 12,000/- to the conductors and cleaners. From out of the said amounts, the outsourcing agency deducts the amounts towards EPF, ESI etc. Thereafter the net amount payable is Rs. 13,000/- to the drivers and Rs. 10,000/- to the conductors and Cleaners. As they are unable to eak the livelihood with the meager amounts, they submitted a representation to the Executive Officer requesting to pay the said amounts directly from the temple account instead through 3rd respondent outsourcing agency. Basing on the representation, the then Executive Officer has forwarded a letter in Rc. No. A1/3432/2018 dated 21.1.2019 to the 2nd respondent. It is also stated that the agency is not paying the salaries to the petitioners on time and their salaries are paid once in two or three months, which is causing prejudice to the petitioners. While things stood thus, the impugned proceedings in Rc. No. A1/11026(40)/11/2018 dated 1.10.2021 were issued by the 2nd respondent to engage the work by calling for tenders and outsource from time to time as per the Circular instructions dated 24.9.201. Thereafter, the petitioners submitted representations dated 5.7.2021 and 20.7.2021 to the Chairman of the Trust Board and Minister for Endowments Department respectively. No. A1/11026(40)/11/2018 dated 1.10.2021 were issued by the 2nd respondent to engage the work by calling for tenders and outsource from time to time as per the Circular instructions dated 24.9.201. Thereafter, the petitioners submitted representations dated 5.7.2021 and 20.7.2021 to the Chairman of the Trust Board and Minister for Endowments Department respectively. But as on today, no action is taken so far. Hence, the present writ petition. 3. Counter affidavit is filed by the 2nd respondent denying all the allegations made in the petition and contended that the 2nd respondent has issued circular instructions in Rc. No. A1/1726091/2018, dated 24.9.2018 to all the temples that no new appointments shall be made by the temples, even on contract basis under any circumstances and no proposals shall be made for any appointments except in case of specialized/exceptional services. All other required services shall be availed only on outsourcing basis, by obtaining tenders/quotations as the case may be from the eligible agencies. Then the Executive Officer has submitted a report on the presentation of the petitioners to the Commissioner, Endowments Department in Rc. No. A1/3432/2018, dated 21.01.2019 for payment of remuneration directly from temple funds instead of paying the same through Outsourcing Agency. The 2nd respondent has issued Memo dated 1.10.2021 wherein Rc. No. A1/11026(40)/11/2018, it was instructed to strictly adhere to the circular instructions already issued in Rc. No. A1/1726091/2018, dated 24.9.2018. It is further stated that all the orders issued by the Commissioner, Endowments Department are way back to the year 2013 and 2014. To avoid such irregular appointments in the temples, the 2nd respondent has issued comprehensive circular instructions in Rc. No. A1/1726091/2018 dated 24.9.2018 superseding all earlier instructions. The petitioners being employees of an outsourcing agency have no locus standi to question the decision taken by the 2nd respondent. Hence, as there are no valid grounds, prayed to dismiss the writ petition. 4. Reply affidavit is filed by the petitioners while reiterating the averments made in the petition, denied all the averments made in the counter affidavit filed by the respondents and contended that one Smt. Nagamadhuri, who was appointed on outsourcing basis vide proceedings of the 2nd respondent in L.Dis No. A1/11026/19/2021 dated 2.8.2021 for a period of one year has submitted a representation on 18.8.2021 to the 2nd respondent to convert her as NMR. and the 2nd respondent has issued proceedings dated 30.09.2021 to utilize her services as NMR. i.e., within a span of two months. But coming to their case is concerned, they are working day and night for the past 9 years for the interest and benefit of the temple without any remark, their cases are not considered. This itself shows the attitude of the respondents to adopt pick and choose methods and vested reasons for paying salaries and to treat as NMRs. of the temple. It is stated that they were appointed as per Endowments Act to render their services to the temple and not to act against the interest of the temple for the service of the respondents, the salaries are paid from the temple funds only as per Section 69(3)(1) of Act 30/87, as such issuing such Memos is illegal and arbitrary. 5. Heard learned counsel appearing for the petitioners and the learned Government Pleader for Endowments appearing for the respondents. 6. Learned counsel for the petitioners argued that initially the petitioners were all appointed on daily wage basis in the year 2013 and their salaries were paid on daily wage system to one of the contractor. They were initially appointed in the year 2013 and working for the past 9 years in the temple. The petitioners were only paid salaries through the outsourcing agency and not the employment and this procedure was invented from the year 2016 only. Prior to that voucher payments were made, attendance register was maintained by the temple. As such there is relationship between the employer and employee with the temple. Therefore, the action on the part of respondents is illegal and prays to allow the writ petition as stated supra. 7. Per contra, learned Standing Counsel for the temple vehemently contends that there is no relationship of employer and employee between the petitioners and the 3rd respondent-temple at the time of filing this writ petition and as such the petitioners cannot seek a Mandamus directing the respondents 2 and 3 to pay remuneration to them directly by dispense with outsourcing agency. The outsourcing agency is not shown as one of the respondent in this case. In the absence of such outsourcing agency to the proceedings, the rival issue involved in this case may not be adjudicated just and properly. Hence, the petition is liable to be dismissed in limine. 8. The outsourcing agency is not shown as one of the respondent in this case. In the absence of such outsourcing agency to the proceedings, the rival issue involved in this case may not be adjudicated just and properly. Hence, the petition is liable to be dismissed in limine. 8. In a case of Hussainbhai v. Alath Factory Thezhilali Union (1978) 4 SCC 257 , the Hon'ble Supreme Court, held that: 'The true test may, with brevity, be indicated once again. Where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like, may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43-A of the Constitution. The court must be astute to avoid mischief and achieve the purpose of the law and not be misled by the maya of legal appearances. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefits and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe trappings of detachment from the Management cannot snap the real-life bond. The story may vary but the inference defies ingenuity. The liability cannot be shaken off.' 9. In the instant case also, the duties are allotted by the temple, the control over the petitioners is by the temple and the services rendered by the petitioners are in the interest of temple only and not for the outsourcing agency. The real employer is none other than the temple, but not the outsourcing agency. 10. In the instant case also, the duties are allotted by the temple, the control over the petitioners is by the temple and the services rendered by the petitioners are in the interest of temple only and not for the outsourcing agency. The real employer is none other than the temple, but not the outsourcing agency. 10. Having regard to the facts and circumstances of the case, in view of the decision of Hon'ble Supreme Court referred to above and in view of the submission made by both the learned counsels, this Court is of the considered view that, in the interest of justice, while declaring the action of the 2nd respondent in issuing Memo dated 1.10.2021, as illegal, directing the 2nd and 3rd respondents to pay the remuneration directly to the petitioners from temple accounts by dispensing with the payment through outsourcing agency. 11. With the above direction, the Writ Petition is disposed of. No order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed.