Allowed

Sudershana, v. The State of Andhra Pradesh, Rep. by its Principal

Andhra Pradesh HC3 Mar 2023WP/11144/2015

Case brief

AI extract

What is this about?

This writ petition challenged the termination of the petitioner's contract service and recovery order imposed following a report of irregularities. The Court held that a detailed enquiry and fair hearing were mandatory before imposing major penalties like termination, even on contract employees, to avoid double jeopardy. The Court allowed the petition and remanded the matter for a fresh enquiry.

What did the court decide?

The writ petition was allowed; the impugned termination and recovery orders were set aside and the matter was remanded to the respondents to conduct a detailed enquiry.

Sudershana, Vs The State of Andhra… — Pension and Retirement Benefits | Andhra Pradesh HC (2023)

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•■^1 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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(Special Original Jurisdiction)

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FRIDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SMT JUSTICE V.SUJATHA

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WRIT PETITION NO: 11144 OF 2015

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Between:

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Sudershana, S/o. Venkataramana. Aged about 31 years, Occ. Field Assistant (Terminated), R/o. Nayanivaripalli Village, Singanamala Mandal, Anantapur District.

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...PETITIONER

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AND

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The State of Andhra Pradesh, Rep. by its Principal, Secretary, Panchayat Raj and Rural Department, Secretariat, Hyderabad.

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The Commissioner, Panchayat Raj and Rural Department,.A.P., Hyderabad.

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The District Collector/District Project Coordinator, MGNREGS, DWMA Anantapur, Anantapur District. ’

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The Project. Director -cum- Joint Secretary, District Water Management Agency (MGNREGS), DWMA, Anantapur, Anantapur District.

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The Mandal Parishad Development Officer/Programme-Officer, MGNREGS Districr^’'^* Department Singanamala Mandal, Anantapur

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Nayanivaripalli Gram Panchayat, Rep. by its Panchayath Secretary Nayanivaripalli, Singanamala Mandal, Anantapur District.

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...RESPONDENTS

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to Issue a Writ of mandamus or any other appropriate writ order or direction declaring the orders vide Rc.No.99/2013/MGNREGS-A.P./Sbcial Audit, Dt.04.04.2014 passed by the 3^^* respondent and final orders vide R.C.N0.99/2OI3/NREGS/S.A., Dt.30.04.2013 passed by the 4th respondent without affording arty opportunity and without conducting any enquiry is illegal and arbitrary and also violative of principles of natural justice Consequently set aside the same.

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I.A. NO: 1 OF 2015fWPMP. NO: 14722 OF 2015)

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the writ petition, the High Court may be pleased direct

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the respondents to continue the petitioner as Field Assistant, Nayanivaripalli Village, Singanamala Mandal, Anantapur District by suspending the orders vide Rc.No.99/2013/MGNREGS-A.P./Social Dt.04:04.2014 passed by the 3rd respondent and final orders vide R.Ciyo:99/2013/NREGS/S.A., Dt.30,04.2013 passed by the 4‘^ respondent forthwith pending disposal of the above writ petition.

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Counsel for the Petitioner: SRI. N ASWARTHA NARAYANA Counsel for the Respondent No. 1 to 2: GP FOR PANCHAYAT RAJ & RURAL DEV (AP) Counsel for the Respondent No. 3 to 4: SPL C FOR NREGS (M S R CHANDRA MURTHY) Counsel for the Respondent No. 5 to 6: SRI SHESHADRI The Court made the following: ORDER

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THE HON’BLE SMT JUSTICE V. SUJATHA Writ Petition No. 11144 of 2015

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ORDER:

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This Writ Petition came to be filed under Article 226 of the

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Constitution of India seeking the following relief:

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to issue a Writ of mandamus or any other
appropriate writ order or’ direction declaring the
orders vide Rc. No. 99/2013/MGNREGSA P /Social
Audit Dt 04.04.2014 passed by the 3” respondent and*
final orders vide R.C.No. 99/2013/NREGS/S A Dated
30.04.2013 passed by the 4* respondent without**
affording any opportunity and without conducting
any enquiry as illegal, arbitrary and also violative of
principles of natural justice and consequently to set aside the same.. ”

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2. Brief facts of the case are that the petitioner was initially appointed as Field Assistant , in the year, 2010 at Nayanivaripalli village, on contract basis under Mahatma Gandhi National Rural Employment Scheme and he continued till 30.06.2014. While so, the 4* respondent/Project Director, DWMA has issued the impugned order imposing a penalty of Rs. 1,200/- besides recovery of 50% of misappropriated amount of Rs. 10,585/- on the guise of certain irregularities committed by the petitioner. Subsequently, the matter was carried to the District Collector, Anantapuram by way of suo motu appeal by the Chief Vigilance officer and the District Collector has issued

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T ••• . . i ■ •*

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the impugned proceedings in R.C.No. 99/2013/MGNREGSAP/S A Dated 30.04.2013 terminating the services of the petitioner besides ordering recovery of an amount of Rs. 11,785/- without conducting any enquiry and affording an opportunity of hearing to the petitioner as contemplated under the Rules. Aggrieved by the action of the respondents, the present writ petition is filed.

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During hearing, learned counsel for the petitioner has brought to the notice of the court about the order dated 07.07.2010 in W.P.No.14121 of 2010 and batch passed in similar circumstances. The relevant portion of the order is extracted below:-

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“In all the cases where recovery ■ is contemplated, a fresh enquiry shall be conducted and completed, as per the directions of this Court, as above, within a period of thirty days from the date of receipt of a copy of this order. If any separate recovery proceedings are issued in pursuance of the impugned proceedings herein, they shall stand stayed during pendency of the fresh enquiry.

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It is unfortunate that allegations of high corruption like Rs.20.00 lakhs and Rs.30.00 lakhs are made against the Field Assistants/Technical Assistants, who are working under the MPDOs and other higher officers and supposed to only assist such Officers and not to deal with any monetary matters directly. It appears, there is no proper supervision by the higher officials and such

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serious matters are entrusted to the persons, who are appointed on meagre salary and on contract basis and they are allowed to indulge in misappropriation of funds meant for the rural poor under the National Rural Employment Guarantee ..Scheme, in large-scale. The concerned District Collectors are directed to look into this matter personally and instruct the Officers concerned not to allow the Field Assistants/Technical Assistants etc., to deal with the money distribution etc. directly. If there is any misappropriation of money, the Officers concerned must be made responsible.

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All the writ petitions are allowed and the matters are remanded accordingly. The stay/suspension orders, if any, granted earlier, shall stand vacated in view of the disposal of the writ petitions, as above.”

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The respondent No. 3 has filed counter affidavit by admitting the facts as stated above by the petitioner, but however stated that during Social Audit conducted from. 12.03.2012 to 26.03.2013, the team has found certain irregularities committed by the petitioner. Thereafter, a Gram Sabha was conducted on 19.03.2013 to which, the petitioner has attended. The Social Audit Team conducted public hearing at Mapdal level on 26.03.2013 in the presence of the petitioner. EGS Staff, Villagers, wage seekers, people representatives. media etc. During course of which the presiding officer, read out the irregularities committed by the petitioner for which the petitioner failed to give proper reply. After hearing all the

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•aa^

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parties, the presiding officer has taken a decision that the petitioner has committed irregularities and misappropriated an amount of Rs. 19,746/-. Thereafter, Social Audit team has submitted a report to the 4*** respondent. In pursuance of which, the 4^^ respondent has issued a show cause notice dated 15.04.2013, and also provided an opportunity of personal hearing on 22.04.2013. The petitioner neither attended for personal hearing held on 22.04.2013 nor has submitted any explanation to the said show cause notice. As such, the 4«‘ respondent after examining entire records imposed penalty of Rs. 1,200/- and ordered for recovery of 50% of misappropriated amount of Rs.10,585/- vide., proceedings Rc.No.99/2013/ NREGS/SA dated 30.04.2013.

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5. Leamed Standing Counsel strongly opposed the case on the ground that the petitioner was only a contract employee and as such, conducting of an enquiry is riot necessaiy, in support of which the learned Standing counsel relied upon the Circular Memo. No.666/EGS(P)/2012 dated 08.01.2013 which deals with Field Assistants Human Resources Policy(FAHRP) wherein 4.B Renewal of Contract is read as follows:-

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“Contract of the Field Assistant shall be renewed on examination of the achievement of minimum

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perfonnance parameters as detailed at para no.3 andn on obtaining the performance appraisal from the Addl. PO and PO, EGS. There will be no renewal of contract if there are adverse observations in Social Audit. In the present casie, the Social Audit, as they found certain irregularities, the said punishment was iriipbsed upon the petitioner after following due process of law which is neither illegal nor arbitrary.

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Learned Standing Counsel for delay in taking up suo motu proceedings has relied upon the Judgment of HonTale Supreme Court in the case of Director of Settlements, Hyderabad and others Vs. Lingareddy Ramakrishna Reddy and others^ which deals with suo motu enquiry. Para-18 of the said judgment reads as follows

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“18. No doubt as contended by the learned Government Pleader for the appellants, ho limitation is prescribed for initiating suo motu enquiry and the show-cause-notice cannot be defeated on account of any bar of limitation. It is well settled that in the absence , of any period of limitation prescribed, under . the statute, action proposed has to be. taken the statute, action proposed has to be taken within reasonable period in exercise of the. statutory;power and it shall not smack of oppressiveness or arbitrariness. The impugned show-cause notice seeks to suo motu reopen the issue of . grant of. pattas more than 37

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' 2008 (6) ALD 566 (DB) ’

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IM I I I"**

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years after their issuance, that too without any valid or justifiable grounds, such a course of action certainly amounts to exercise of power in unreasonable, arbitrary and oppressive manner. As rightly observed by the learned Single Judge, a perusal of the record would show that the whole exercise was started with extraneous motive and under political pressure and without application of mind.”

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7. Heard the learned counsel for the petitioner, Sri M.S.R.Chandra Murthy, learned Standing Counsel appearing for the respondents and perused the material placed on record. 8. On a perusal of the final orders dated 30.04.2013, it is apparent on the face of the order that in pursuance of the report submitted by the Social Audit Team, a show cause notice was given to the petitioner on 15.04.2013, and thereafter. without conducting an enquiry and giving an opportunity of hearing to the petitioner, a major penalty of termination from the service was imposed. for the said alleged irregularities. treating them as proved, and further ordered for recovery of an amount of Rs. 10,585/- and also imposed Rs.1,200/- towards fine and total is Rs. 10,758/-.

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The Apex Court as well as this Hon Tile High Court have held in catena of judgments that before imposing a major penalty of termination against an employee, a detailed enquiry after duly giving any opportunity of hearing to the employee is is a must, but the employee cannot be removed by simply stating that the charged are proved. On the other hand, imposing two major punishments i.e., terminating the petitioner from service and imposing recovery, amounts to double jeopardy.

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While dealing with the contractual employees, the Division Bench of Kerala in WP ( C) No. 26934 of 2022 in the case of Ktintu Vs. Union of India has held as follows

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.The primary reason for termination of the petitioners’ service as evident from Exhibit F19 appears to be that their services were found to be unsatisfactoiy. If that .being so, even though the petitioners are contractual employees, they were entitled to a notice with regard to the unsatisfactoiy nature of their service and their services could have been terminated only on a finding being rendered on the same. In the instant case, such findings are conspicuous by .their absence. Even in case the contention of the respondents is that the petitioners were not appointed after \full process of selection was carried out, it is not-in dispute that they have been continuing-, in . service on contract basis from

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2010 and 2016 onwards and the contention that they can be sent out of service on the specific ground of unsatisfactory performance without any notice or finding to that effect, according to me is a perversive.”

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It is also the case of the petitioner that he has submitted a representation on 19.05.2014 to the 3*’‘i respondent herein by duly giving explanation to the charges framed against him and requested the 3''^ respondent to give an opportunity for proving his innocence by duly conducting an enquiry.

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Under similar circumstance, the composite High Court of Andhra Pradesh in Writ Petitioner No. 32713 of 2010 has held as follows

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“In any case, if it is found that the delinquent has committed misappropriation, it is always open for the authorities after passing the final orders, to recover the same, as per law. In all. the cases, where recovery is contemplated; a fresh enquiry shall be conducted and completed, as per the directions of this Court, as above, within a period of thirty days from the date of receipt of a copy of this order. If any separate recovery proceedings are issued in pursuance of the impugned proceedings herein, they shall stand stayed during the pendency of the fresh enquiry ;

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In view of the same, this writ petition is allowed by setting aside the impugned proceedings issued vide R.C. No. 99/2O13/NREGS/S:A dated 30.04.2013 passed by the 4‘h respondent by directing the respondents to consider the representation dated 19.05.2014 made by the petitioner and pass appropriate orders after conducting a detailed enquiry by giving a fair opportunity to the petitioner. The said process shall be completed within a period of three (3) months from the date of receipt of a copy of this, order.: There shall be no orders as to costs.

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As a sequel, ihiscfellahedus application, pending, if any, shall also stand closed. ..

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To,

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//TRUE COPY//

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Sd/- S SRINIVASA PRASAD ASSISTANT REGISTER eR

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SECTION OFFICER

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Andhra Panchayat Raj and Rural Department, State of. Andhra Pradesh, Secretariat, Hyderabad.

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2 R^ral Department, A.P.,

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The District Collector/District Project Coordinator, MGNREGS DWMA ’

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. Anantapur, Anantapur District. .

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The Project Director -cum- Joint Secretary, District Water Management Agency (MGNREGS), DWMA, Anantapur, Anantapur District Peveloprnent Officer/Programme-Officer,

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Anantapur^Di^rict Development Department Singanamala Mandal,

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6. TheI?® Panchayath Secretary, Nayanivaripalli Gram Panchayat Jjayenjyar'palli, Singanamala Mandal, Anantapur District ’

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I' Aswartha Narayana, Advocate [OPUCl 8. One CC to Sri Sheshadri, Advocate [OPUC]

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