Andhra HC (Pre-Telangana)
S.K. Khuddus vs Managing Director, A.P. State ... on 14 February, 1992
Equivalent citations: 1992(2)ALT127, (1993)ILLJ13AP
ORDER Bhaskar Rao, J.
1. This writ petition is filed under Article 226 of the Constitution of India for issue of a writ, order or direction, more particularly in the nature of mandamus, declaring the action of the 1st respondent in dismissing the petitioner from service without conducting enquiry as arbitrary, illegal and mala fide; declaring the de novo enquiry intiated by the 1st respondent as illegal and consequently to drop the same; and to direct the respondents to regularise the services of the petitioner as Junior Assistant in the A.P. State Warehousing Corporation along with other candidates following G.O. Ms. 117, Food and Agriculture (Marketing-I) Department, Government of Andhra Pradesh, dated February 19, 1990.
2. In the affidavit filed in support of the writ petition it is alleged that the petitioner was employed as Junior Assistant on daily wage basis in the Guntur Warehousing Corporation, Unit-II, in year 1986, that he was discharging his duties satisfactorily, that through G.O. Ms. No. 117, Food and Agriculture (Marketing-I) Department, Government of Andhra Pradesh, dated February 19, 1990 the Government have considered several candidates who were appointed along with the petitioner on daily wage basis for regularising the services in the category of Junior Assistant, that his name was also included at Serial No. 34, that pursuant to the said G.O. the respondents through proceedings No. SWC/E1/15289/88-II dated April 12, 1991 have regularised the services of the candidates except four candidates including the petitioner, that disciplinary proceedings have been initiated against the petitioner and two others on the ground that on August 24, 1989 when the ACB officials have raided the office they found some irregularities of collecting extra amounts by the petitioner from the fair-price shop dealers, that as there was no evidence to file a criminal case the ACB officials have directed the respondents to conduct departmental enquiries against the petitioner, that subsequently without conducting any enquiry the 1st respondent dismissed the petitioner from service by his order No. SWC/ E6/11366/89-1, dated November 4, 1989, that the petitioner challenged the said order by filing Writ Petition No. 16408 of 1989, that this Court by an order dated November 21, 1989 suspended the said dismissal order of the 1st respondent, that thereupon the petitioner was reinstated into service and continuing, that during the pendency of the writ petition the authorities conducted an enquiry and the petitioner was fully exonerated by the enquiry officer, that the 1st respondent not satisfied with the enquiry report has ordered for a de novo enquiry through proceedings dated November 28, 1990 on the ground that the officials of the ACB were not examined during the enquiry, that the petitioner has submitted his explanation to the charge memo issued pursuant to the de novo enquiry requesting the authorities for the supply of records and statements for filing a detailed explanation, that the Regional Manager, A.P. State Warehousing Corporation, Kakinada was appointed as the Enquiry Officer, that the last date fixed for the enquiry was May 16, 1991, that when the enquiry was thus going on the 1st respondent passed an order No. SWC/11366/ E6/89 dated May 7, 1991 dismissing the petitioner from service stating that there is no necessity to conduct any enquiry on the ground that Regulation No.36 of the A.P. State Warehousing Corporation Regulations, 1965 does not apply to the petitioner he being a daily wage employee, that the 1st respondent also cast a stigma in the said proceedings on the petitioner saying that the services of the petitioner are not satisfactory and he is an undesirable element to continue in service and that under Regulation No. 41 of the A.P. State Warehousing Corporation Regulations, 1965 an appeal was provided only to the 2nd respondent.
3. In the counter-affidavit filed on behalf of the respondents it is alleged that during the raid conducted by the ACB officials on August 24, 1989 it was found that the petitioner was in possession of some amount accepted by him from the fair price shop dealers which fact was also confessed by him during the course of raid, that basing on the statement of the Director of ACB the petitioner was earlier dismissed from service, that the Director General of the ACB addressed a letter to the Secretary to Government of Andhra Pradesh, Food & Agriculture Department, saying that the enquiry officer appointed by the Corporation did not examine the officials of the ACB or the mediators and did not follow the procedural rules while conducting the enquiry, and requested the Government to issue instructions to the A.P. State Warehousing Corporation to order a de novo enquiry, that the Government of Andhra Pradesh have directed the Corporation to take immediate action as suggested by the ACB, that as per the said instructions a de novo enquiry was ordered by the Corporation by appointing the Regional Manager, A.P. State Warehousing Corporation, Kakinada as Enquiry Officer, that a charge memo was issued to the petitioner and the petitioner instead of submitting his explanation requested the enquiry officer to supply to him certain documents, that the said request was rejected by the Corporation as it felt that it was not necessary to supply the said documents, that the petitioner has submitted his explanation after a lapse of about three months after issue of the charge memo, that the explanation was therefore not taken into consideration, that the petitioner did not co-operate with the enquiry officer, that therefore the enquiry could not be completed, that the petitioner was taken into service on casual basis, that as per the A.P. State Warehousing Corporation Employees Regulations, the petitioner does not fall under the term "employee" of the Corporation, that the provisions of the Corporation for conducting enquiry are applicable for only regular employees, that therefore the Corporation issued proceedings dated May 7, 1991 dismissing the petitioner from service without referring to any charges legelled against him earlier as his services are not required for the Corporation, that the petitioner's name was not considered for regularisation as disciplinary enquiry was pending against him, that though his name was included in the list of the proposed candidates for regularisation, it is for the Corporation to regularise the services of such candidates whose work is satisfactory, that the Managing Director is empowered to order de novo enquiry against the petitioner as instructed by the Government of Andhra Pradesh in view of the seriousness of the charges made against him and that the petitioner is out of service since the date of the order passed by the 1st respondent.
4. Mr. M. Rama Rao, learned counsel for the petitioner, contended that the impugned order No. SWC/11366/E6/89 dated May 7, 1991 passed by the 1st respondent dismissing the petitioner from service without conducting any enquiry with a stigma to the effect that the petitioner is an undesirable element is in violation of the principles of natural justice and that the impugned order is violative of Articles 14 and 16 of the Constitution of India.
5. The learned standing counsel for the respondents contended that as the petitioner does not fall under the term "employee" of the Corporation as per the A.P. State Warehousing Corporation Employees Regulations the procedures laid down under the regulations of the Corporation will not apply to the petitioner and so no enquiry need be conducted against the petitioner and that the petitioner is therefore dismissed from service.
6. The facts of the case show that the petitioner was working as Junior Assistant on daily wage basis much prior to 1966. The ACB officials have raided the office on August 24, 1989 and the petitioner is found at fault. The Government of Andhra Pradesh issued G.O. Ms. 117, Food and Agriculture (Marketing-I) Department, Government of Andhra Pradesh, dated February 19, 1990 directing the Corporation to regularise the services of the candidates mentioned in the said G.O. and in the said G.O. the name of the petitioner was also mentioned at Serial No. 34. Except the petitioner and four others all other candidates were regularised in service. The petitioner was not regularised on the ground that disciplinary proceedings are pending against him. Subsequently without conducting any enquiry the petitioner was dismissed from service by the 1st respondent by his order No. SWC/E6/11366/89-1 dated November 4, 1989. The petitioner challenged the said dismissal order in W.P. No. 16408 of 1989 before this Court and this Court by its order dated November 21, 1989 granted interim suspension of the dismissal order passed by the 1st respondent. Therefore, the petitioner was reinstated into service and continued. During the pendency of the said writ petition an enquiry was conducted and the petitioner was fully exonerated. Again a de novo enquiry was initiated against the petitioner and a charge memo was issued. Thereupon the petitioner requested for supply of records and statements but the said request was rejected by the Corporation. The petitioner again insisted for supply of the documents but in vain. Subsequently ths petitioner submitted his explanation after a lapse of about three months after issue of the charge memo.
7. The petitioner was informed through a memo in SWC/ROK/114-A/6/91-92 dated May 8, 1991 that the scheduled de novo enquiry proposed from May 14, 1991 to May 16, 1991 at the office of the Warehouse Manager, A.P. State Warehousing Corporation, Guntur has been postponed and the revised dates of enquiry will be intimated to him soon. In the meanwhile the 1st respondent passed the impugned order dismissing the petitioner from service. No doubt it was stated in the said order that the petitioner is not co-operating with the enquiry. It was further stated in the said order that the provisions applicable to regular employees under Regulation No. 36 do not apply to the petitioner since the petitioner is working purely on daily wage basis and that he does not fall under the definition of an "employee" as per the APSWC Employees Regulations. Therefore, the 1st respondent dismissed the petitioner from service holding that the Corporation is a business organisation and cannot afford to continue such an undesirable element in its employment and that his services are found to be unsatisfatory,
8. The impugned order shows that as the petitioner's services are found unsatisfactory and as the petitioner is an undesirable element the 1st respondent dismissed him from service even before the enquiry is conducted and that as he is not a regular employee, conducting an enquiry is not necessary.
9. It must be noted that the impugned order has been passed with a stigma saying that the petitioner's services are found to be unsatisfactory and he is an undesirable element and so saying the petitioner was dismissed from service by the 1st respondent. That means though the petitioner was working on daily wage basis, dismissing him from service with a stigma to the effect that he is an undesirable element and his services are found to be unsatisfactory will be an impediment for his future re-employment. As already decided by a number of courts there is difference among 'termination', 'removal' and 'dismissal'. An employee terminated or removed can get re-employment but the employee who has been dismissed from service with a stigma generally cannot get re-employment.
10. In the present case the impugned order dismissing the petitioner from service is passed by the first respondent without conducting any enquiry. It is also to be noticed that when the enquiry was going on, by a memo dated May 8, 1991 issued by the enquiry officer the petitioner was informed that the de novo enquiry proposed from May 14, 1991 to May 16, 1991 has been postponed and the revised dates of enquiry will be intimated to him soon. But without completion of the enquiry passing the impugned order by the 1st respondent makes it clear that the impugned order is passed without giving an opportunity to the petitioner and so it is against the principles of natural justice. The Corporation in the first instance ordered to conduct an enquiry against the petitioner and issued a charge memo to the petitioner and while the enquiry was in process the 1st respondent passed the impugned order. Therefore, the impugned order, on the face of it, not only violates the principles of natural justice but is also arbitrary and violative of Articles 14 and 16 of the Constitution of India.
11. The learned standing counsel for the respondents contended that the petitioner does not fall under the term 'employee' of the Corporation as per the regulations of the Corporation and therefore, no enquiry need be conducted against the petitioner as per Regulation No. 36 of the Corporation Regulations, 1965, and as the petitioner being a daily wage workman he can be dismissed from service and therefore there is no illegality in the impugned order passed by the 1st respondent.
12. Therefore, the question that arises for consideration is, whether a workman engaged temporarily on daily-wage basis can be dismissed from service with a stigma, without giving him an opportunity of hearing.
13. In Md. Akhter Ali v. A.P.E.B., Hyderabad 1987(5) S.L.R. 38 it was held that though service rule is not applicable to a contingent employee, still enquiry must be held.
14. In Balbir Singh v. Punjab State 1988 (3) S.L.R. 533 holding that termination of services by a stigmatised order is in violation of principles of natural justice, the Punjab and Haryana High Court held:
" In view of my above observation I am of the considered view that the principles of natural justice have been violated and the services of the appellant have been terminated by a stigmatizing order of dismissal which cannot be sustained."
In U.P. Warehousing Corporation v. Vijay Narayan 1980-I-LLJ-222 the Supreme Court held (p.227):
"Even if at the time of the dismissal (of respondent-employee of U.P. State Warehousing Corporation) the statutory regulations had not been framed or had not come into force, then also the employment of the respondent was public employment and the statutory body, the employer, could not terminate the services of its employee without due enquiry in accordance with tie statutory Regulations, if any in force, or in the absence of such Regulations, in accordance with the rules of natural justice. Such enquiry into the conduct of a public employee is of a quasi-judicial character....This Court would, therefore, presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice, and to act in accordance with the spirit of Regulation 16, which was then on the anvil and came into force shortly after the impugned dismissal. The rules of natural justice in the circumstances of the case, required that the respondent should be given a reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which means and includes an opportunity to cross-examine the witnesses relied upon by the appellant-Corporation and an opportunity to lead evidence in defence of the charge as also a show-cause notice for the proposed punishment."
In K.L. Tripathi v. State Bank of India 1984-I-LLJ-2 the Supreme Court observed (p. 14):
".......In order to sustain a complaint of violation of principles of natural justice on the ground of absence of opportunity of cross-examination, it has to be established that prejudice has been caused to the appellant by the procedure followed."
15. In the case on hand, it can be seen that the Corporation in the first instance ordered to conduct enquiry against the petitioner and issued a charge memo to the petitioner and while the enquiry was in process the 1st respondent passed the impugned order. By this it is patently evident that prejudice has been caused to the petitioner herein by denial to him of a particular right of enquiry.
16. In Om Prakash Goel v. Him. Pradesh Tourism Devehpment Corporation Ltd., 1992-I-LLJ-469 it was held by a Division Bench of the Supreme Court as follows (p. 471):
".....Having gone through the various records and also the admissions made in the counter-affidavit, we are satisfied that the termination order, though appears to be innocuous, was only intended to punish the petitioner for the misconduct, in respect of the allegations which are mentioned in the charges that were served on him. After serving the charge-sheet, as a matter of fact, the enquiry was conducted. But before the conclusion of the enquiry the termination order was passed. Therefore, it is not difficult to see that the form of the termination order is only a cloak for an order of punishment."
17. From the above decisions cited by the learned counsel for the petitioner it can be seen that even a temporary employee is always a temporary employee and the principles of natural justice require that an opportunity must be given to an employee before he was dismissed from service.
18. In view of the foregoing discussion, the impugned order No. SWC/11366/E6/89 dated May 7, 1991 passed by the first respondent is liable to be quashed and the same is quashed.
19. In the result, the writ petition is allowed. There shall, however, be no order as to costs.