Allowed

K. Siva Prasad, v. The State of Andhra Pradesh

Andhra Pradesh HC1 Aug 2019WP/9645/2019

Case brief

AI extract

What is this about?

The High Court held that an oral direction to an outsourcing employee not to attend duty, intended to replace him with another from the same agency, was arbitrary and illegal. The writ petition was allowed to protect the petitioner's services.

What did the court decide?

The writ petition allowed; action to replace petitioner declared illegal; respondents directed to continue petitioner's services.

K. Siva Prasad, Vs The State of Andhra… — Labour and Industrial Disputes | Andhra Pradesh HC (2019)

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HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY Writ Petition No.9645 of 2019

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Order:

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Heard Sri D.V. Sasidhar, learned counsel for the petitioner and Sri K.Madhava Reddy, learned Standing Counsel for the 2^nd respondent/Temple. None appeared on behalf of respondent No.1.

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Prefatory facts of the writ petition may be stated as follows:-

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On the request made on behalf of the 2^nd respondent/ Temple for appointment of a Computer Operator, the competent authority has accorded permission in proceedings L.Dis.No.A2/ 625/2012 RJC, dated 26-6-2012, to engage the services of the Computer Operator on outsourcing basis. M/s. Ranaa Man Power and Placement Services Private Limited, Guntur, which is the agency supplying employees on outsourcing basis, has submitted a list of employees as per its letter dated 04-8-2016 to the authorities of the Temple. The Executive Officer has selected the petitioner herein as a Computer Operator to work on outsourcing basis. Accordingly, he has informed the said decision of selecting the petitioner herein to work as Computer Operator on outsourcing basis to the Outsourcing Agency by his letter dated 06-8-2016. Thereafter, the services of the petitioner are made available to the 2^nd respondent/Temple and from the year 2016, the petitioner has been working as Computer Operator on outsourcing basis in the Temple.

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While so, as there is change in the office of the Executive Officer, due to the recent political scenario, the present Executive Officer has threatened to terminate the services of the petitioner and to replace him with another Computer Operator. The said proposal to terminate the services of the petitioner by the Executive Officer and replace him with another outsourcing employee is not valid and the same is illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India.

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The petitioner is the sole bread-winner of his family and if his services are terminated, he will be on the streets along with his family. Therefore, he has filed the writ petition seeking direction to the respondents not to take any coercive steps to terminate him from the service by substituting another person as a Computer Operator.

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The learned counsel for the petitioner contends that if there is any substantive vacancy in the cadre of Computer Operator is existing and if the respondents are contemplating to fill up the said vacancy by regular employment, the petitioner has no objection for termination of his services to give a way to fill up regular vacancy and if he is entitled that he would compete along with other eligible persons for being appointed as regular Computer Operator. He submits that as no such proposal is put forward by the respondents to fill up any such vacancy by way of regular appointment that the respondents cannot arbitrarily terminate the services of the petitioner with an intention to replace him with another outsourcing employee and that too by directing him orally not to attend to the duties. Therefore,

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he would submit that the said action on the part of the respondents in making an effort to illegally terminate his services as an outsourcing employee and to replace him with a person of their choice is illegal.

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Per contra, the learned Standing Counsel for the Temple vehemently contends that there is no employer and employee relationship between the respondents and the petitioner and the service conditions of the petitioner are not governed by the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 and his services are governed by the Contract Labour (Regulation and Abolition) Act, 1970. So, the petitioner cannot claim any rights on par with regular employees. He then contends that the outsourcing agency is a necessary party to the petition. Therefore, he prayed for dismissal of the petition.

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In the above backdrop, if the case on hand is considered, it has to be noticed at the outset that the fact that the services of the petitioner herein are availed by the respondents on outsourcing basis and that the petitioner has been working as a Computer Operator on outsourcing basis from the year 2016 is absolutely not in dispute. A perusal of the letter dated 06-8-2016 addressed by the Executive Officer, Sri Amareswara Swamy Temple to M/s. Ranaa Man Power and Placement Services Private Limited, which is the outsourcing agency, amply shows that from the names furnished by the outsourcing agency in the list dated 04-8-2011, the Executive Officer has selected the petitioner herein to work as Computer Operator through outsourcing agency and

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thereby requested the petitioner to report for duty on 06-8-2016. Therefore, when the petitioner has been selected by the respondents to work as Computer Operator on outsourcing basis and when he has been working as Computer Operator on outsourcing basis from 06-8-2016, there must be some valid reason for the respondent to abruptly direct him not to attend for duties. In fact, no written order was passed by any of the respondents terminating the services of the petitioner herein and directing him not to attend to his duties. According to the petitioner, the Executive Officer has orally directed him not to attend to duties with an intention to replace the petitioner with another person on outsourcing basis of their choice. If that be the case, the said act of the concerned authority in directing the petitioner not to attend duty orally with a view to replace him with another outsourcing employee of their choice is undoubtedly arbitrary in nature and it is illegal and cannot be sustained.

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The contention of the learned Standing Counsel that M/s. Ranaa Man Power and Placement Services Pvt. Ltd., which is an outsourcing agency through whom the petitioner was appointed is a necessary party to the writ petition, cannot be countenanced in the facts and circumstances of the case. The petitioner has no threat of termination from the said outsourcing agency. The threat is from the respondents as it is the case of the petitioner that the Executive Officer has orally directed him not to attend for duties and that he is making efforts to replace the services of the petitioner with another person. Therefore, in the said facts and circumstances of the case,

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it cannot be said that the outsourcing agency is a necessary party to this petition and that this petition is bad for not impleading it as a party to the petition.

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Similarly, the other contention of the learned Standing Counsel that there is no employer and employee relationship between the Endowments Department and the petitioner and that the service conditions of the petitioner are governed by the Contract Labour (Regulation and Abolition) Act, 1970 and as such this writ petition is not maintainable also holds no water in the facts and circumstances of the case. As already noticed supra, the petitioner is fair enough to plead in his writ petition itself that he is not claiming any right as a regular employee as a Computer Operator. It is his specific case that if there is any existing vacancy in the cadre of Computer Operator and if the respondents intend to fill up the said vacancy by way of regular employment, that he has no objection to initiate the said process and that he would compete with other eligible candidates as per the procedure. So, his grievance is only that since he is engaged as an outsourcing employee that his services cannot be abruptly terminated to facilitate the respondents to engage another person in his place. Therefore, in the said facts and circumstances of the case, the said contention that there is no employer and employee relationship between the respondents and the petitioner and that his service conditions are not governed by the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 are all absolutely besides the point.

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As already noticed supra, since an illegal effort is being made to prevent the petitioner from attending his duties by giving oral direction to him not to attend to duty with an intention to replace his services with another person on outsourcing basis, the petitioner is entitled to the relief claimed in this petition.

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In the result, the writ petition is allowed declaring the action of the 2^nd respondent in proposing to substitute the petitioner by another Computer Operator as illegal and arbitrary. Consequently, the respondents are directed to continue the services of the petitioner as Computer Operator in the establishment of the 2^nd respondent. Pending applications, if any, shall stand closed. No costs.

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_________________________________________ CHEEKATI MANAVENDRANATH ROY, J.

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01^st August, 2019. Ak

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HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

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Writ Petition No.9645 of 2019

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01^st August, 2019. (Ak)

K. Siva Prasad, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

K. Siva Prasad, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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