Andhra Pradesh High Court - Amravati
G. David Raju, vs The Union Of India, on 20 October, 2023
HONOURABLE SMT. JUSTICE V.SUJATHA
WRIT PETITION Nos.5716, 9352 of 2015, 44406, 44495
and 44533 of 2016
COMMON ORDER:
All these petitions are filed claiming same relief by different petitioners, but the issue involved in these petitions is one and the same. Therefore, I am of the view that it is appropriate to decide all the petitions by common order.
W.P. No.5716 of 2015 came to be filed under Article 226 of the Constitution of India seeking 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 3 and 4 in forcibly getting executed the „Contract of Service‟ dt.10.03.2014 from the petitioners for conversion of their regular service into contractual service thereby seeking to retire them from service on 9.03.2015, thereby affecting the petitioners‟ continuation of service in which posts they were originally appointed without any notice as unconstitutional, without jurisdiction, power or authority of law, wholly illegal, void, untenable, unjust and is in violation of Article 14 of Constitution of India, contrary to the Governing Guidelines issued by the 1st Respondent Ministry, apart from violation of their Constitutional Rights and consequently direct the Respondent No.3 and 4 to continue the petitioners as regular employees of the Jana Shikshan Sansthan, Visakhapatnam with all attendant 2 VS,J wps_5716_2015 and batch benefits attached to their respective posts upto the age of their superannuation i.e. 60 years...."
The brief facts of the case are that respondent No.3 herein is a Society Registered with the District Registrar, Visakhapatnam with Registration No.73 of 1984 under the provisions of Indian Societies Registration Act, 1860. Originally, the name of the Society was Sramik Vidhya Peeth, which was formed with an object to provide skill development for the urban industrial workers and urban poor. The said organization is fully and completely running with the financial aid and assistance of respondent No.1 Ministry and the employees of the said organization are working on regular pay scales. Consequent upon the establishment of Sramik Vidhya Peeth, petitioner No.1 is appointed as Assistant Programme Officer on 03.02.1992 with the pay scale of Rs.1400-40-1800-EB-50- 2300. Petitioner No.2 is appointed as Artist-cum- Projectionist on 29.10.1988 with the pay scale of Rs.330-10-380-EB-12- 500-15-560 (revised to Rs.1200-30-1560-EB-40-2040). Petitioner Nos.3 and 4 are appointed as Chowkidars on 3 VS,J wps_5716_2015 and batch 11.12.1984 and 23.10.1985 respectively on a pay scale of Rs.196-3-220-EB-3-232 (revised to Rs.750-12-870-EB-14-
940). Ever since the date of their respective appointments, they have been working without any remarks whatsoever to the utmost satisfaction of our superiors. Subsequent to their appointment, petitioner No.1 got promotion as Programme Officer and petitioner No.2 also got ad hoc promotion as Assistant Programme Officer. Pay scales of employees working in respondent No.3‟s organization were revised in 1989.
While so, respondent No.1 - Union of India has taken a decision to introduce certain reforms in the respondent No.3 organization. Therefore, the nomenclature of said Shramik Vidya Peeth was changed to Jana Shikshana Sansthan (Institute of Peoples Education). The main objects of the said organization are adult education, taking up vocational and skill development programmes for neo-literates in urban as well as rural areas. Consequent upon restructuring of respondent No.3‟s organization, the Institution was 4 VS,J wps_5716_2015 and batch registered once again on 21.09.2001 with Registration No.1024/2001, which is in existence even as of now. However, there is no change in the service conditions of existing employees and all the employees who were earlier employed continued in service. The functions and its objectives are governed by certain guidelines, including the staff working conditions by necessary regulations. Respondent No.1 Ministry also issued an order fixing the superannuation age of the employees working in respondent No.3‟s organization as 60 years vide proceedings dated 29.12.2012.
Respondent No.1 Ministry has issued guidelines for Management, Planning and Programme during the year 1999 and the same were given effect from 01.01.2000. Though it was designed as new Guidelines, more or less, these guidelines are similar to the old guidelines, except in certain areas where it is concerned with the extension of activities carried on by respondent No.3 organization. There is no controversy regarding the status and service conditions of 5 VS,J wps_5716_2015 and batch employees working in the organization. However, certain concepts were widened and the category of target groups was extended widely to the rural and tribal areas. Respondent No.4 has issued a Circular, dated 22.11.2013 to apprise the revised guidelines issued by respondent No.1 Ministry and decision is pending as on the date of filing of the writ petition. However, under the said Circular, respondent No.4 has mislead all the staff, including the petitioners stating that the existing staff shall opt into a contract system immediately and therefore, submit their service contracts in a proforma prepared on his own. Respondent No.4 further reposed a trust on all the petitioners stating that the guidelines have to be implemented in its letter and spirit. Therefore, a formal, requisition of their service contract will not alter the service conditions of its original nature. As the petitioners have seen the guidelines of the Ministry, where there is no effect of change in their service conditions, they opposed to enter into any such contract employment. Consequently, respondent No.4 has circulated a Circular drawn by him stating that respondent No.1 Ministry‟s 6 VS,J wps_5716_2015 and batch annual action plans approval is subject to certain conditions, and one such condition is no staff shall raise any dispute or file any cases against respondent No.3 Organization as it would lead to losing the sanction of funds and thereby the salaries will not be paid to the petitioners. Under the threat of losing their services, out of force, the petitioners have signed the contract on 10.03.2014 designed by respondent No.4.
Respondent Nos.3 and 4 have not issued any notice or intimation to the petitioners about the further consequences of the contract. However, respondent No.4 slowly started indicating that the petitioners‟ earlier status of employment has changed into contractual nature and they will lose the employment soon on the expiry of the term fixed under the service contract. On coming to know the same, the petitioners have submitted representation, dated 12.02.2015 to respondent No.3 who refused to receive the same. As such, they have sent the same by post and on receiving the same, respondent No.3 replied that there is no violation of 7 VS,J wps_5716_2015 and batch guidelines issued by respondent No.1 Ministry and its action is strictly in accordance with the said guidelines. However, respondent No.3 designed the revised instructions issued by the Ministry on 20.06.2013 in its favour to state that the contract is valid. This action of respondent No.3 is wholly illegal and untenable in as much as there is no law or governing regulations permitting respondent No.3 to convert the permanent employees‟ status into contract basis. There is no such authority or power as per the existing guidelines. It only emphasizes the future appointments and the pattern of future employment.
While the matter being so, respondent No.3 orally informed the petitioners that their tenure of employment will seize on the expiry of contract term mentioned in the service of contract i.e. going to be expired on 09.03.2015. Challenging the said action of the respondents, initially four petitioners filed W.P.No.5716 of 2015.
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VS,J wps_5716_2015 and batch In W.P.No.5716 of 2015 this Court granted an interim order to maintain status quo, and the same has been extended from time to time.
As the said interim order is not complied with, petitioners in W.P.No.5716 of 2015 have filed C.C.No.1437 of 2015 alleging willful disobedience of the interim order passed by this Court.
While the matter stood thus, one B.Hari Prasad filed W.P.No.9352 of 2015 challenging the action of respondent Nos.3 and 4 therein in forcibly objecting him to discharge/perform his duties as per the original appointment made on 08.12.1984 as converted the one from regular service into contractual service as „contract of service‟ offered by respondent No.4 through letter in 1G/JSSV/ESTT/2013- 14/137 date 30.11.2013.
In W.P.No.9352 of 2015 also, this Court granted interim order directing the respondents therein to continue the petitioner in service till he attains the age of superannuation and retires eventually. 9
VS,J wps_5716_2015 and batch Despite the interim order passed in W.P.No.5716 of 2015, salaries were not regularly paid to the petitioners. Petitioner No.3 in W.P.No.5716 of 2015 who is a Chowkidar attained the age of 60 years. From March 2015 to September 2015 salaries were not paid and in January 2016 a meager amount of Rs.89,607/- was released to the petitioner in W.P.No.44495 of 2016.
While the things stood thus, on 21.09.2016 a letter was sent to the petitioners stating that they are not reporting to duty since March 2015, for which they submitted an explanation on 23.09.2016 explaining that though they have attending to duty, the attendance register has been kept away from them and requested for release of salaries. After the orders passed in W.V.M.P.No.1234 of 2015 in W.P.M.P.No.7610 of 2015 in W.P.No.5716 of 2015, on 07.10.2016 the petitioners submitted representation requesting the respondent authorities to permit them to perform their duties. On 13.10.2016, the Director, Jana Sikshana Samsthan, issued proceedings suspending the 10 VS,J wps_5716_2015 and batch petitioners in W.P.Nos.44406, 44495, 44533 of 2016. On 27.10.2016 one more proceeding was issued expressing deep displeasure on the representation dated 07.10.2016 submitted by them. Thereafter, respondents issued proceedings framing certain charges such as non- submission of work, non performance of duties as per the job chart and absenting from duty etc. No details are given as to the date on which the petitioners have failed to perform their duties.
The petitioners addressed a letter on 14.11.2016 stating that they had already addressed a letter to the Chairman and the Director, JSS on 04.11.2016 through registered post requesting for relevant documents, but those letters were returned to the petitioners and in the letter dated 14.11.2016 the petitioners requested for four weeks‟ time to give a detailed reply. The letter dated 04.11.2016 sent by them was returned. Proceedings were issued on 15.11.2016 stating that some supporting documents are enclosed and extended the time till 21.11.2016 for 11 VS,J wps_5716_2015 and batch submitting explanation, again petitioners requested to extend the time till 12.12.2016. Without giving any time, proceedings were issued on 24.11.2016 directing the petitioners to appear before the authorities on 28.11.2016 with all evidence. In pursuance of which, the petitioners have appeared before the authorities on 28.11.2016 and requested the respondents authorities to supply records basing on which, charges were framed against them.
On 12.12.2016, Director, Jana Sikshana Samsthan, issued proceedings vide Ref.No.F.1G/JSSV/ESTT/2016- 17/146 removing the petitioners in W.P.Nos.44406, 44495, 44533 of 2016 from service which are consequential to proceedings Ref.No.F.1G/JSSV/ESTT/2016-17/105 dated 13.10.2016 and the proceedings F.1G/JSSV/ESTT/2016- 17/115 dated 31.10.2016. Despite the interim order in favour of the petitioners, they were placed under suspension and removed from service.
Challenging the said removal orders vide proceedings Ref.No.F.1G/ JSSV/ ESTT/ 2016-17/146 dated 12.12.2016, 12 VS,J wps_5716_2015 and batch petitioner Nos.1, 2 and 4 in W.P.No.5716 of 2015 have filed three writ petitions vide W.P.Nos.44495, 44406 and 44533 of 2016.
Respondent No.3 in W.P.No.9352 of 2015 i.e. the Jana Shikshan Sansthan filed counter contending that the Ministry of Education and Culture, New Delhi sponsored a scheme of 'Sramik Vidhya Peeth at Visakhapatnam in the year 1984 to conduct self employment vocation training programmes for the benefit of industrial workers and their dependents. As per the guidelines of the Ministry, the „Sramik Vidhya Peeth' at Visakhapatnam was registered in district level vide its Registration No.73/1984, dated 03.03.1984 with the District Registrar, Visakhapatnam District under Societies Registration Act XXI of 1860. The Sramik Vidhya Peeth at Visakhapatnam has been not in existence and that the Department of Elementary Education and Literacy, Ministry of Human Resource Development, New Delhi constituted a scheme of Jan Shikshan Sansthan (Institute of People's Education)" at Visakhapatnam with a 13 VS,J wps_5716_2015 and batch concept for conducting skill upgradation in the areas of programmes of Non-formal, Adult and Continuing Education and also provide academic and technical resource support to Zilla Saksharata Samitis in both urban and rural areas and accordingly the respondent organization again got registered with the Registrar of Societies and District Registrar, Visakhapatnam vide its Society No. 1024/2001, dated 21.09.2001 under the A.P Societies Registration Act 1860 (Act XXI of 1860) and therefore, the litigation, if any, would be raised before the Cooperative Societies Tribunal situated at Visakhapatnam.
It is further contended in the counter that prior to end of contract of service by 14.05.2014 that the petitioner in W.P.No.9352 of 2015 filed O.S.141/2014 on 21.03.2014 on the file of II Additional Junior Civil Judge, Visakhapatnam and obtained an exparte ad-interim temperary Junction vide I.A.94/2014, in these circumstances, after filing the suit that the petitioner sent e-mails to the respondent requesting to grant to leave between 21.01.2014 and 28.02.2015 on 14 VS,J wps_5716_2015 and batch different dates and sent leave applications on several times through Speed Posts, which is not permitted for contract employees. There is an ill motive on the part of the petitioner to establish his endeavour to continue the service against the contract of service suggested by the Government of India in the scheme of Jan Shikshan Sansthan, Visakhapatnam Therefore, prior to approaching this Court, the contract of service of the petitioner has been expired by 14.05.2014 and as such the writ petition is not maintainable.
It is further contended that the question of superannuation of the petitioners with any emoluments or benefits does not arise, as their contract of service has been expired by 14.05.2014. The Board of Management resolved that the contract of service of the petitioner has been extended up to May, 2014. Therefore, the writ petitions filed by the petitioners are liable to be dismissed.
It is further contended in the counter that the petitioner in W.P.No.9352 of 2015 on the one hand approached the civil court of law and on the other hand 15 VS,J wps_5716_2015 and batch approached this Court by filing writ petition instead of approaching the Cooperative Societies Tribunal at Visakhapatnam, which has original jurisdiction.
The subject matter of the writ petition comes under Res Judicata, as the petitioner filed the O.S.No.141 of 2014 on the file of II Additional Junior Civil Judge. Visakhapatnam, challenging the order passed in the said case, the respondents preferred appeal C.M.A.No.28 of 2014 on the file of I Additional District Judge, Visakhapatnam, which has been allowed on 04.03.2015 and requested to dismiss the writ petition.
The respondent - the Jan Shikshan Sansthan filed counter in W.P.No.5716 of 2015 contending that the petitioners were appointed for establishment of Sramik Vidhya Peeth on fixed pay scales to perform their valuable duties. Thereafter, the petitioners had entered into an contract agreements dated 10.03.2014 and in the said contract of service agreement, it is stated that the employment is only for one year which ends on 09.03.2015 16 VS,J wps_5716_2015 and batch and the petitioners are also aware of the terms and conditions of the contract of service agreement and having clearly understood the same have signed in the said contract of service agreement in the presence of the witnesses. Prior to entering into agreement the petitioners voluntarily with their own handwriting submitted their respective representations stating that they read the resolutions and agreed to work for a period of one year and accordingly, they entered into the agreement of contract. But, now the petitioners filed the present writ petitions stating that the respondent has illegally removed the petitioners from service.
It is further contended in the counter that the Jan Shikshan Sansthan, Visakhapatnam and Sramik Vidhya Peeth are different societies with their respective guidelines. There are no any existing employees in the respondent society. There is no right to the petitioners to continue them into service in their respective posts. Once the contract of service agreement is ended, there is no question of renewing the said employees, hence, as per the program fixed by the 17 VS,J wps_5716_2015 and batch authorities it is only for one year and basing on the said program, respondent had appointed the staff to perform the said program for one year only.
At the time of establishment of Jan Shikahan Sansthan (Institute of Peoples Education), in Chapter 8 - Staff and Finance, it is specifically mentioned at "8.3 The members of the staff of JSS are employees of the Sansthan/Parent Organization, at the case may be, and are not employees of the Government of India. The role of the Government of India is strictly limited to providing the registered society with financial assistance as per the approved financial pattern. This too, it is providing strictly on a temporary basis and is at liberty to withdraw such assistance without assigning any reason or issuing any notice.
8.4 The members of the staff of JSS shall be engaged on contract basis with consolidated emoluments, as may be fixed by the Board of Management. This will be effective from the date of issue of the guidelines by the Government of India. All the existing vacant positions shall be filled only on contract basis."
It is further contended that the petitioners approached this Court with unclean hands and they have willfully entered into the contract of service agreement and the said 18 VS,J wps_5716_2015 and batch job is only for one year, but before completion of the said contract agreement, the petitioners approached this Court and filed the writ petitions and obtained interim order of status quo for a period of six weeks. There is no such program to continue the petitioners in the said posts, because the Central Government had granted the said program for only one year i.e. from 01.04.2014 to 31.03.2015. Accordingly, the petitioners were taken into service on contract basis for a period of one year only, hence, there is no question of continuation of the petitioners in service.
Respondent No.4 in W.P.No.44495 of 2016 filed counter affidavit contending that the Department of Education of the Ministry of Human Resource Development of the Government of India in 1997 framed a scheme called Shramik Vidya Peeth (in short „SVP‟) disseminating non- formal Adult and continuing vocational education. The scheme was entrusted area wise to registered non- governmental organizations and the SVPs were free to engage 19 VS,J wps_5716_2015 and batch their own employees and fix their pay scales subject to the ceiling imposed on them by the guidelines. It is submitted that the employees were not cadre born on any permanent service. While so, the nomenclature of said SVPs were changed to Jan Shikshan Sansthan (Institute of Peoples Education) (for short „JSS‟) and the main object of the organization intended by the Union of India is to take up vocational and skilled development programmes for neo- literates in urban as well as rural areas. Consequently, upon restructuring of the organization, the JSS once again registered on 21.09.2000 under Societies Registration Act, 1860 with registered No.1024/2001. The Ministry of Human Resource Development has issued guidelines for management, planning and programming of JSS. Some of the guidelines of staffing and finance are as follows:
8.1 Jan Shikshan Sansthan is a scheme of assistance to voluntary agencies enabling them to run a programme with the aims and objectives provided at page 6 of the guidelines.
8.3 The members of the staff of JSS are employees of the Sansthan/Parent Organization, as the case may be, 20 VS,J wps_5716_2015 and batch and are not employees of the Government of India. The role of the Government of India is strictly limited to providing the registered society with financial assistance according to the approved financial pattern. This too, it provides strictly on a temporary basis and is at liberty to withdraw such assistance without assigning any reason or issuing any notice.
8.4 The members of the staff of JSS shall be engaged on contract basis with consolidated emoluments, as may be fixed by the Board of Management. This will be effective from the date of issue of the guidelines by the Government of India. All the existing vacant positions shall be filled only on contract basis.
8.5. No contract shall be signed with any staff member for a period exceeding three years, Contracts for shorter period shall be signed at the discretion of the Board of Management. No contract shall be renewed after the period of the Board of Management. No contract shall be renewed after the period of expiry of the contract. A fresh contract shall be entered into.
8.7. The Board of Management of the Sansthan may decide the emoluments to be paid to staff members within the ceiling fixed by the Government of India.
As seen from the above guidelines it is very clear that the financial assistance to the JSS is on temporary basis and it can be withdrawn without any notice, further the JSS is not constituted by a statue and control of the Central 21 VS,J wps_5716_2015 and batch Government against JSS is mere regulatory. Hence, the JSS is not a State within the meaning of Article 12 of the Constitution of India.
The petitioner in W.P.No.44495 of 2016 was appointed by selection as Assistant Programme Officer in the year 1992, later he was appointed by selection as Programme Officer in the year 1996, but he was not promoted as Programme Officer from the post of Assistant Programme Officer as alleged by him. The pay scales attached to the post of Assistant Programme Officer was continued till the year 1999 i.e., till the SVP renamed as JSS, as the Union of India stopped the pay scale along with increment and DA. Therefore, the writ petitioners herein as well as other employees were paid only lump sum amount upto February, 2015. As the employees were not cadre born on any permanent service, no employees including the petitioner services were regularized and no service register was maintained. The Union of India has issued office 22 VS,J wps_5716_2015 and batch memorandum dated 20.06.2013 wherein instruction 3.2 reads as follows;
The title of Section 6.27 (Selection of other Staff) is modified to read as Selection and Continuation of other Staff, Provisions of Section 6.27 are modified to read as under:
All positions other than the Director shall be filled by following the prescribed procedures as decided by the Board of Management and through a duly constituted selection committee. The Board of Management may consider renewal of the contract of staff from time to time based on performance appraisal but not beyond the age of 60 years.
In view of the said office Memorandum, the JSS vide resolution No.3 in the minutes of the Board of Management meeting held on 20.11.2013 has resolved as follows:
Resolution No.3- With regard to the amendment (Order of GoI) about the extension of upper age of 60 years to staff of JSS, is only for those employees who opted to come under contract system, as per the JSS guidelines. Such application should be forwarded first Executive Committee and then Board of Management. Without the orders of Executive Committee and Board, no employee should be continued beyond 60 years. 23
VS,J wps_5716_2015 and batch In view of the above minutes of the Board of Management, all the employees of the JSS including the petitioners gave their willingness letters to come under contract system in obedience to the guidelines of the Government of India. Consequently all the employees including the petitioner entered into contract service on 10.03.2014 for a period of one year with the consolidated amount of Rs.17,153/- per month including EPF on certain terms and conditions. After working on contract service for a period of almost 12 months and having received the consolidated amount mentioned in the contract service, the petitioners approached this Court on the last date of expiry of contract period questioning the contract service and obtained interim orders of status quo on 09.03.2015 in W.P.M.P. No.7610 of 2015 in W.P.No.5716 of 2015 and as such they were continued on contract service.
Respondents filed vacate petition W.V.M.P.No.1234 of 2015 in W.P. No.5716 of 2015, wherein this Court issued the following order.
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VS,J wps_5716_2015 and batch "........... Be that as it may, the right of the petitioners to continue in service has to be adjudicated in the main writ petition. However, in the meanwhile, it appears that the 3rd petitioner attained the age of 60 years and he is no longer in service. It is not the case of the respondents that there is no work in the respondent organization.
In view of the same, the respondents are directed to continue the petitioners 1, 2 and 4, if they had not attained the age of 60 years, pending disposal of the writ petition. But the said petitioners are under obligation to discharge the duties entrusted by the respondents and the respondents shall allow the petitioners to sign the attendance register. It is open to the respondents to take appropriate action in case of any disobedience to their duties."
After filing the said vacate petition, the petitioner in W.P.No.5716 of 2015 filed C.CNo.1437 of 2015. However, he was paid the remuneration as per the agreement of contract after deducting the amounts as was done in the case of other contractual employees for a period of seven months. Therefore it is not correct that he was paid a meager amount of Ra 89,607/-
Respondents denied that the petitioner was harassed, not allowed to sign in the attendance register properly and not allotted any work. In fact the trouble started from the date of granting status quo order by the Court. The 25 VS,J wps_5716_2015 and batch petitioners used to report to office at their convenient date and time and putting signature in the attendance register weekly once or twice and signed the attendance register left the office without permission of the Head of the Office and not followed the procedure of maintaining movement register while going outside for office work and also not submitted the procedure in vogue of the field visit forms A & B for the work done regularly. In spite of the same, was paid the remuneration for a period of seven (7) months.
It is further stated that in view of the above allegations even though he was on contract service, to follow the principles of natural justice he was given memo dated 21.09.2016" calling for an explanation, not satisfying with the explanation, he was kept under suspension on 13.10.2016 pending enquiry. Latter he was served with charge memo dated 31.10.2016 with a request to reply with evidences on or before 06.11.2016. As there was no reply, he was given another opportunity vide letter dated 09.11.2016 to submit his reply on or before 15.11.2016. To the said 26 VS,J wps_5716_2015 and batch letter, he submitted a representation stating that he already sent a registered post letter on 04.11.2016 with a request to furnish the relevant documents in support of the charges and also requested to extend the time for submitting his reply for a further period of four weeks from the date of 06.11.2016. The said alleged registered letter dated 04.11.2016 has not been received by the respondents. However he was supplied relevant documents while extending time up to 21.11.2016 for submitting his reply vide letter dated 15.11.2016. Instead of submitting his reply he sent another letter dated 19.11.2016 seeking time up to 12.12.2016 to submit his explanation. As seen from the above, it is very clear that the petitioner, intentionally dragging the issue to evade the enquiry. Therefore, an enquiry committee was appointed on 24.11.2016 by the respondent - Jan Sikshan Sansthan. The enquiry committee issued notice along with questionnaire and directed the petitioners to appear before the enquiry committee on 28.11.2016 at 11.30 AM along with evidences. The enquiry committee also issued notice to the Director as well as to the 27 VS,J wps_5716_2015 and batch staff to appear before the committee. The petitioners appeared before the enquiry committee on the said date and signed on the questionnaire as well as attendance sheet on the date of enquiry. But without submitting any documentary evidence to rebut the charges, requested for some more documents and went away. As those documents were already furnished, the enquiry committee basing on the records and evidences of the staff discussed on each charge and held proved all the charges except one charge. The enquiry committee submitted its report to the respondent - Jan Sikshan Sansthan and in turn submitted the same in the executive committee meeting. The executive committee of JSS discussed and recommended to the Board of Management which was constituted by the Union of India, the same also discussed and having gone through the entire records along with enquiry report and the action of the committed has ratified that petitioner's service is no more required to JSS. The same was communicated to the petitioner. Therefore, the respondents denied the contention that the respondents have not followed the principles of 28 VS,J wps_5716_2015 and batch natural justice and passed removal orders without conducting any enquiry. As the petitioner is a contractual employee, that too when there are no service rules, the question of conducting enquiry as in the case of civil servants does not arise.
The respondents denied the allegation made by the petitioners that even though on 05.09.2016 was holiday as it was Vinayaka Chavithi, the staff signed in attendance register. As Teachers day also fell on 05.09.2016, therefore as per procedure in vogue all the staff members attended the office on 05.09.2016 and signed on the office circular and also observed Teacher's day, and a circular was issued stating that the staff meeting will be conducted on 06.09.2016. Accordingly, on 06.09.2016 staff meeting was conducted. As the petitioner is dragging the issue by requesting further time for documents, the respondents have no other option except to proceed with the enquiry. In fact, all the relevant documents are furnished to the petitioner, 29 VS,J wps_5716_2015 and batch therefore, there is no malafide intention and procedural irregularity, and requested to dismiss the writ petition.
Respondents filed counter in W.P.No.44406 and 44533 of 2016 on the similar lines as contended in W.P.No.44495 of 2016.
Sri K.S.Murthy, learned senior counsel representing Sri Ponnada Sree Vyas, learned counsel for the petitioners in W.P.Nos.44495, 44406 and 44533 of 2016 and Sri P.Srinivasa Rao, learned counsel for the petitioners in W.P.Nos.5716 and 9352 of 2015, have contended that the petitioners have a right of continuation in service as they were appointed in the year 1992 with certain service conditions/guidelines by undergoing due selection process, as such the same cannot be changed unilaterally without giving any prior notice to the petitioners. Initially, the petitioners were given respective pay scales. Later, respondent No.1 Ministry for Management, Planning and Programme issued circular during the year 1999, which was given effect from 01.01.2000. Though it was designed as new 30 VS,J wps_5716_2015 and batch guidelines, more or less, these guidelines are similar to the old guidelines, except in certain areas where it is concerned with the extension of activities carried on by respondent No.3 organisation. But, there was no change in the status and service conditions of employees working in the organization. Even after restructuring of respondent No.3 organisation and change of nomenclature, there is no change in the working pattern or service conditions including payment of salaries, wages, and allowances. Respondent No.1 ministry has issued guidelines for management, planning and programme during the year 1999 and the same were given effect from 1 st January 2015. As per the said guidelines, there is no controversy regarding the status and service conditions of working staff in the organization. While so, respondent No.4 has issued a circular dated 22.11.2013 informing that as per the revised guidelines and instructions issued by the Government of India, the Board of Management in its meeting held on 20.11.2013 has taken a decision to bring all the existing staff under contract system immediately. Based on the said circular, respondent No.4 has mislead all the 31 VS,J wps_5716_2015 and batch staff, including the petitioners stating that the existing staff shall opt for contract system immediately and therefore, submit their service contract in a proforma prepared on his own. Therefore, a formal requisition of the service contract will not alter the service conditions from its original nature. Initially, petitioners opposed to enter into any such contract employment. However, under the threat of losing their job, the petitioners were forced to sign on the contract proforma prepared by respondent No.4. The learned counsel for the petitioners further contended that the regular employee cannot be converted into contract employee unilaterally. The undertaking given by the petitionersis contrary to actual provision of law will not bind upon the party. Further, the termination orders dated 12.12.2016 issued by the respondents to the petitioners in W.P.No.44406, 44495 and 44533 of 2016 are also illegal and arbitrary as the respondents have not followed the due process in conducting enquiry; copies of enquiry report were also not furnished to the petitioners, but straight away issued termination order, which amounts to violation of principles of natural justice 32 VS,J wps_5716_2015 and batch and requested to set aside the termination orders dated 12.12.2016. The judgments relied on by the learned counsel for the petitioners will be referred at appropriate stage.
Learned counsel for the respondents contended that the writ petition is not maintainable since respondent No.3 - JSS was registered under the Societies Act, 1860. The petitioners had entered into an contract agreements dated 10.03.2014 and as per the said contract of service agreement, the employment is only for one year, which ends on 09.03.2015 and the petitioners are also aware of the terms and conditions of the contract of service agreement. As the petitioners having agreed and signed on the contracts, at a later stage, they cannot say that the said contracts are not binding on them. They have entered into the contract of service agreement and the said job is only for one year, but before completion of the said contract agreement, the petitioners approached this Court and filed the writ petitions and have obtained interim order of status quo for a period of six weeks. There is no any program to continue the 33 VS,J wps_5716_2015 and batch petitioners in the said posts, as the Central Government had granted the said program for only one year i.e. from 01.04.2014 to 31.03.2015. Accordingly, the petitioners were taken into service on contract for a period of one year, hence, there is no question of continuation of the petitioners into service. The question of superannuation of the petitioners with any emoluments or benefits does not arise, as their contract of service has already expired. Further, the SVP or JSS would not fall within the meaning of "State" as defined under Article 12 of the Constitution of India, therefore, the writ petitions are not maintainable against the respondents and requested to dismiss the writ petitions.
To decide whether the respondent organisation would fall within the meaning of "State", it would be necessary to refer to the definition of the word "State" under Article 12 of the Constitution of India, which is as follows:
"12.Definition: In this part, unless the context otherwise requires, "the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within 34 VS,J wps_5716_2015 and batch the territory of India or under the control of the Government of India."
Further, it is to be observed that the determination of a body as a 'State' is not a rigid set of principles. What is to be seen is whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government, albeit if the control is mere regulatory, whether under statute or otherwise, it will not serve to make the body a State. Also, the presence of some element of public duty or function would not by itself suffice for bringing a body within the net of Article 12 of the Constitution of India. (Vide: Zee Telefilms Ltd. and Another Vs. Union of India and Others1").
Chapter 6 of Guidelines for Management, Planning and Programming deals with "Organisation and Management", clause 6.22 deals with "power to frame, amend or repeal bye-laws", which is as follows: 1
(2005) 4 SCC 649 35 VS,J wps_5716_2015 and batch "6.22 Subject to the approval of the Government of India, the board shall have the power to frame, amend or repeal any bye laws for furtherance of its objective and in particular to provide for following matters....."
Chapter 8 deals with "Staff and Finance". Clause 8.3 is as follows:
"The members of the Staff of JSS are employees of the Sansthan. Parent Organisation, as the case may be, and are not employees of the Government of India. The role of the Government of India is strongly limited to providing the registered society with financial assistance as per the approved financial pattern. This too, it is providing strictly on a temporary basis and is at liberty to withdraw such assistance without assigning any reason or issuing any notice."
From the above, it is clear that the JSS, Vishakhapatnam is fully funded and controlled by the Union of India. Therefore, the same becomes authority and is amenable to writ jurisdiction under Article 226 of the Constitution of India. Further, the pervasive control lies with the Government of India only. It is settled principle of law that once the organization is funded and controlled by the Government of India, it would fall within the definition of "State" under Article 12 of the Constitution of India. 36
VS,J wps_5716_2015 and batch Therefore, the present writ petitions are maintainable against the respondent - JSS, Vishakhapatnam.
Admittedly, the petitioners were appointed by a duly constituted Selection Committee and appointment orders were issued in the years 1984, 1985, 1988 and 1992. Since then, they are continuing in service. The governing rules and regulations are issued by the Government of India, wherein Rule 21.4 deals with Selection of other Staff, which reads as under:
"21.4 Selection of other Staff: All positions other than the Director shall be filled by following prescribed procedures as decided by the Board of Management and through a duly constituted selection committee."
As per the material available on record, following the above said rule, the petitioners were appointed by the respondents and they have been continuing in service. The Union of India has extended the benefit of Pay Revision Scale (PRC) to the staff of the JSS. In the year 2000, the parent institution Sramik Vidya Peeths (SVPs) are renamed as Jan Shikshan Sansthan (JSS). Though the institution was 37 VS,J wps_5716_2015 and batch renamed, there is no change in the Management, guidelines, rules and regulations framed by the Ministry. Therefore, the appointment orders issued to the petitioners by the SVP, which was renamed as JSS, are valid till they attain the age of superannuation i.e. 60 years as per the orders of Ministry. But, in spite of the same, the Director of the Institution has directed the petitioners/employees to opt for contract of service by enclosing a format under circular dated 22.11.2013.
It is apt to mention here that the petitioners/employees are shown as if they have been appointed newly into the service a fresh, whereas they are already in service as existing employees as on the date of the circular dated 22.11.2013.
At the time of establishment of Jan Shikahan Sansthan (Institute of Peoples Education), in Chapter 8 - Staff and Finance, it is specifically mentioned as follows:
8.4 The members of the staff of JSS shall be engaged on contract basis with consolidated emoluments, as may be fixed by the Board of Management. This will be effective from the date of issue of the 38 VS,J wps_5716_2015 and batch guidelines by the Government of India. All the existing vacant positions shall be filled only on contract basis."
From the above, it is clear that the authorities are directed to fill up all the existing vacant positions on contract basis, but not to convert the regular employees as contract employees.
Respondent No.4 did not serve any copy of Circular dated 20.06.2013 issued by the Ministry as relied upon and adverted in the resolution of BOM, dated 20.11.2013 when the petitioners/employees were called upon to submit the enclosed format to opt for contract system. Therefore, it is violation of principles of natural justice, consequently, the contract forcibly obtained by the respondents is not binding on the petitioners.
In "Shri Krishnan Vs. The Kurukshetra University, Kurukshetra2", relied upon by the learned counsel for the petitioners, the Apex Court held that "it is well settled that any admission made in ignorance of legal rights or under duress cannot bind the maker of the admission." 2 (1976) 1 SCC 311 39 VS,J wps_5716_2015 and batch In "Grid Corporation of Orissa Vs. Rasananda Das 3"
the Apex Court held that "service conditions of such employees are to be protected and cannot be changed to their disadvantage or detriment by virtue of the regulation of the Board"
In "Chairman, Railway Board Vs. C.R.Rangadhamaiah4" while stating that "legislature is competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws and no law whether prospective or retrospective can be made so as to contravene fundamental rights provided in Constitution of India", specifically held as follows:
"The Full Bench of the Tribunal has, in our opinion, rightly taken the view that the amendments that were made in Rule 2544 by the impugned notifications dated December 5, 1988, to the extent the said amendments have been given retrospective effect so as to reduce the maximum limit from 75% to 45% in respect of the period from January 1, 1973 to March 31, 1979 and reduce it to 55% in respect of the period from April 1, 1979, are 3 (2003) 10 SCC 297 4 (1997) 6 SCC 623 40 VS,J wps_5716_2015 and batch unreasonable and arbitrary and are violative of the rights guaranteed under Articles 14 and 16 of the Constitution."
In the present cases also, respondents converted the petitioners from regular to contract employment, who were appointed long back after following due selection procedure with certain service conditions prevailing as on the date of their appointment, which would amount to "change of game rules after commencement of game", which is admittedly impermissible under law. Following the law laid down in the judgments referred above, change of service conditions detriment to the petitioners, after their appointment process is completed and during their service, is illegal and arbitrary.
With regard to the termination orders dated 12.12.2016 issued to the petitioners in W.P.Nos.44406, 44495 and 44533 of 2016, it is to be seen that on 21.09.2016 a letter was sent to the petitioners stating that they are not reporting to the duty since March 2015, to which explanation dated 23.09.2016 was submitted. Thereafter, through proceedings dated 13.10.2016 petitioners were placed under suspension. Further, on 41 VS,J wps_5716_2015 and batch 27.10.2016 letters were issued to the petitioners informing that an enquiry will be conducted against them and action will be taken accordingly. Moreover, after placing them under suspension, during enquiry, the respondents vide proceedings dated 31.10.2016 framed charges against the petitioners on vague and frivolous grounds, which cannot form the basis for any disciplinary proceedings.
It is also the case of the petitioners that on 04.11.2016 and 14.11.2016, the petitioners have submitted a representation to the authorities requesting to supply the documents, basing on which charges have been framed against them and sought four weeks time to submit detailed explanation. They were given time till 2nd week of November, 2016. On 28.11.2016, the Petitioners requested for copies of the documents, which are in the custody of the officers, to prove their bonafides and to participate in the enquiry as those documents are important to prove their case.
On 15.11.2016 loose papers were sent to the petitioners, which were created subsequently by the 42 VS,J wps_5716_2015 and batch respondents, wherein one such alleged document is the circular signed by the employees on 05.09.2016 i.e., Vinayakachaturti holiday.
The respondents in their counters have stated that the employees attended the office on 05.09.2016 even though it was Vinayakchaturti holiday because Teachers‟ day also fell on the same day. It is to be noted here that petitioners are working in the office of Jana Sikshana Sansthan, it is not a school to contend that all teachers would be coming to celebrate Teachers day. In fact, the petitioners are not Teachers, therefore, the question of petitioners attending on Teachers‟ day does not arise.
Where the charge sheet is accompanied by the statement of facts and the allegations are not specific in the charge sheet, but are crystal clear from the statement of facts, in such a situation, as both constitute the same document, it cannot be held that as the charges were not specific, definite and clear, the enquiry stood vitiated. Thus, nowhere should a delinquent be served a charge sheet, 43 VS,J wps_5716_2015 and batch without providing to him, a clear, specific and definite description of the charges framed against him. When statement of allegations are not served with the charge sheet, the enquiry stands vitiated, as having been conducted in violation of the principles of natural justice. Evidence adduced should not be perfunctory, even if the delinquent does not take the defence of, or make a protest with against that the charges are vague, that does not save the enquiry from being vitiated, for the reason that there must be fair- play in action, particularly in respect of an order involving adverse or penal consequences. What is required to be examined is whether the delinquent knew the nature of accusation. The charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges. (Vide: "State of Andhra Pradesh Vs. S. Sree Rama Rao 5";
"Sawai Singh Vs. State of Rajasthan6"; "U.P.S.R.T.C. Vs. Ram Chandra Yadav7"; "Union of India Vs. Gyan Chand 5 AIR 1963 SC 1723 6 AIR 1986 SC 995 7 AIR 2000 SC 3596 44 VS,J wps_5716_2015 and batch Chattar8"; and "Anil Gilurker Vs. Bilaspur Raipur Kshetria Gramin Bank9".) While reiterating the said principles, the Hon‟ble Supreme Court in "Anant R.Kulkarni Vs. Y.P.Education Society10" held as follows:
"The purpose of holding an enquiry against any person is not only with a view to establish the charges levelled against him or to impose a penalty, but is also conducted with the object of such an enquiry recording the truth of the matter, and in that sense, the outcome of an enquiry may either result in establishing or vindicating his stand, and hence result in his exoneration. Therefore, fair action on the part of the authority concerned is a paramount necessity."
With regard to necessity of affording reasonable opportunity and supply of copies of statements of witnesses to the employee, the Hon‟ble Supreme Court in "State of Punjab Vs. Bhagat Ram11" held as under:
"The State contended that the respondent was not entitled to get copies of statements. The reasoning of the 8 (2009) 12 SCC 78 9 (2011) 14 SCC 379 10 (2013) 6 SCC 515 11 1975 (2) S.C R. 370 45 VS,J wps_5716_2015 and batch State was that the respondent was given an opportunity to cross-examine the witnesses and during the cross-
examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence.
The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against the charges on which inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have an effective and useful cross-examination.
It is unjust and unfair to deny the Government servant copies of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the Government servant. A synopsis does not satisfy the requirements of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be taken ...."
46
VS,J wps_5716_2015 and batch In the present cases, copy of the enquiry report is also not supplied to the petitioners. Non-furnishing of enquiry report would amount to denial of reasonable opportunity and violation of principles of natural justice.
In "Avtar Singh, Police Constable Vs. The Inspector General of Police, Punjab12" admittedly the findings of the Inquiry Officer were not communicated to the delinquent employee and he was only orally told that it was proposed to dismiss him. The Court in this context held that every public servant is entitled to have the whole of the matter brought to his notice before he was asked to show cause why particular punishment should not be meted out to him. The Court has explained what it meant by "the whole of the matter" by stating that it is the findings on the charges against him which should be made known to him.
In "State of Gujarat Vs. R.G. Teredesai 13" the Hon‟ble Supreme Court held that the requirement of a reasonable opportunity would not be satisfied unless the 12 (1968) SLR 131 13 [1970]1SCR251 47 VS,J wps_5716_2015 and batch entire report of the Inquiry Officer including his views in the matter of punishment were disclosed to the delinquent public servant. The Inquiry Officer is under no obligation or duty to make any recommendations in the matter of punishment and his function merely is to conduct the inquiry in accordance with law and to submit the records along with his findings. But if he has also made recommendations in the matter of punishment "that is likely to affect the mind of the punishing authority with regard to penalty or punishment to be imposed" it must be disclosed to the delinquent officer. Since such recommendations form part of the record and constitute appropriate material for consideration of the Government it would be essential that material should not be withheld from him so that he could, while showing cause against the proposed punishment, make a proper representation. The entire object of supplying a copy of the report of the Inquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even 48 VS,J wps_5716_2015 and batch if the charges are held to have been proved, the punishment proposed to be inflicted is unduly severe".
In "General Manager, Eastern Railway and Anr. v. Jawala Prasad Singh14" it is reiterated that the Inquiry Officer ends with the making of the report. The disciplinary authority has to consider the record of the inquiry and arrive at its own conclusion on each charge. Even if the inquiry committee makes a report absolving the employee of the charges against him, the disciplinary authority may on considering the entire record come to a different conclusion and impose a penalty.
In "Uttar Pradesh Government Vs. Sabir Hussain15"
it was held that in the absence of furnishing the copy of the report of the Inquiry Officer, the plaintiff had been denied a reasonable opportunity of showing cause against his removal.
14
(1970)IILLJ279SC 15 [1975] Supp. SCR 354 49 VS,J wps_5716_2015 and batch Following the law laid down in the judgments (referred supra) it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the Inquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. The same is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.
It is also evident from the record that on 28.11.2016, the petitioners requested the respondents to supply copies of the documents. In response to the said request, the respondents supplied some loose papers including the circular signed by the petitioners on 05.09.2016. The question of employees attending office on 05.09.2016 50 VS,J wps_5716_2015 and batch (Vinayakachaturti and also Teachers‟ day) and signing on circular issued by the respondents, generally, does not arise as the petitioners are working in the office of JSS in different capacities, but not teachers, therefore, the document dated 05.09.2016 cannot be believed. Except the document dated 05.09.2016, there is no other material to show that the respondents served copies to the petitioners in response to their letter dated 28.11.2016. This fact shows that the impugned removal orders were passed even without hearing the petitioners, which is in violation of principles of natural justice wherein "Audi alteram Partem" is inherent part of service jurisprudence.
"Audi alteram partem" is considered to be a principle of fundamental justice or equity or the principle of natural justice in most legal systems. This principle includes the rights of a party or its lawyers to confront the witnesses against them, to have a fair opportunity to challenge the evidence presented by the other party, to summon one's own witnesses and to present evidence, and 51 VS,J wps_5716_2015 and batch to have counsel, if necessary at public expense, in order to make one's case properly. Denying the opportunity of being heard is violation of Article 14 and 21 of the Constitution of India.
As the charges were framed on vague and frivolous grounds and the removal of the petitioners even without supplying the documents/papers, basing on which the charges were framed, and even without giving opportunity of hearing to the petitioners, this Court feels it appropriate to allow the writ petitions.
Accordingly, the writ petitions are allowed by setting aside the „contract of service‟ dated 10.03.2014 forcibly obtained from the petitioners in W.P.No.5716 of 2015 as well as the letter Ref.F.1G/JSSV/ESTT/2013-14/137 dated 30.11.2013 issued to the petitioner in W.P.No.9352 of 2015 and also the removal orders dated 12.12.2016 issued to the petitioners in W.P.Nos.44406, 44495 and 44533 of 2016. No costs.52
VS,J wps_5716_2015 and batch Miscellaneous petitions pending, if any, in the Writ Petitions, shall stand closed.
________________________ JUSTICE V.SUJATHA 20.10.2023 Ksp