Andhra Pradesh High Court – Amravati
D Usha Rani vs The State Of Ap on 21 December, 2024
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
WRIT PETITON NO.23697 OF 2024
Between:
1. D USHA RANI, D/O. LATE LINGAPPA, AGED ABOUT 35 YEARS, WARDEN
(UNDER ORDER OF DISMISSAL), ANDHRA PRADESH MODEL SCHOOL
GIRLS HOSTEL, MADDIKERA, KURNOOL DISTRICT
...PETITIONER
AND
1. THE STATE OF AP, REP. BY ITS PRINCIPAL SECRETARY, SCHOOL
EDUCATION DEPARTMENT, A.P. SECRETARIAT, VELAGAPUDI,
AMARAVATI, GUNTUR DISTRICT
2. SAMAGRA SIKSHA ABHIYAN, REP. BY ITS STATE PROJECT DIRECTOR,
IBRAHIMPATNAM, VIJAYAWADA, KRISHNA DISTRICT
3. THE DISTRICT COLLECTOR AND CHAIRMAN, ANDHRA PRADESH
SAMAGRA SIKSHA, KURNOOL DISTRICT AT KURNOOL
4. THE DISTRICT EDUCATIONAL OFFICER AND EXOFFICIO PROJECT
COORDINATOR, ANDHRA PRADESH SAMAGRA SIKSHA, KURNOOL
DISTRICT AT KURNOOL
...RESPONDENT(S):
DATE OF ORDER PRONOUNCED : 21.12.2024
SUBMITTED FOR APPROVAL:
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
1. Whether Reporters of Local Newspapers
may be allowed to see the order? : Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? : Yes/No
3. Whether His Lordship wish to
see the fair copy of the order? : Yes/No
___________________________
JUSTICE SUBBA REDDY SATTI
Page 2 of 13 SRS,J
W.P.No.23697 of 2024
* HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
+ WRIT PETITON No.23697 OF 2024
% 21.11.2024
WRIT PETITON No.23697 OF 2024:
Between:
1. D USHA RANI, D/O. LATE LINGAPPA, AGED ABOUT 35 YEARS, WARDEN
(UNDER ORDER OF DISMISSAL), ANDHRA PRADESH MODEL SCHOOL
GIRLS HOSTEL, MADDIKERA, KURNOOL DISTRICT
…PETITIONER
AND
1. THE STATE OF AP, REP. BY ITS PRINCIPAL SECRETARY, SCHOOL
EDUCATION DEPARTMENT, A.P. SECRETARIAT, VELAGAPUDI,
AMARAVATI, GUNTUR DISTRICT
2. SAMAGRA SIKSHA ABHIYAN, REP. BY ITS STATE PROJECT DIRECTOR,
IBRAHIMPATNAM, VIJAYAWADA, KRISHNA DISTRICT
3. THE DISTRICT COLLECTOR AND CHAIRMAN, ANDHRA PRADESH
SAMAGRA SIKSHA, KURNOOL DISTRICT AT KURNOOL
4. THE DISTRICT EDUCATIONAL OFFICER AND EXOFFICIO PROJECT
COORDINATOR, ANDHRA PRADESH SAMAGRA SIKSHA, KURNOOL
DISTRICT AT KURNOOL
…RESPONDENT(S):
! Counsel for Petitioner : Smt. Sodum Anvesha ^ Counsel for Respondents : GP for Services and Revanuru Sudha Rani < Gist: > Head Note: ? Cases referred: 1) (1991) 1 SCC 691 2) AIR 1958 SC 36 3) AIR 1961 SC 177 4) AIR 1964 SC 449 5) AIR 1964 SC 1854 6) (2002) 1 SCC 520 7) 2024 SCC Online SC 2282 This Court made the following: Page 3 of 13 SRS,J W.P.No.23697 of 2024 APHC010462212024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3331] (Special Original Jurisdiction) THURSDAY ,THE FIFTH DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI WRIT PETITION NO: 23697/2024 Between:
1. D USHA RANI, D/O. LATE LINGAPPA, AGED ABOUT 35 YEARS,
WARDEN (UNDER ORDER OF DISMISSAL), ANDHRA PRADESH
MODEL SCHOOL GIRLS HOSTEL, MADDIKERA, KURNOOL
DISTRICT
…PETITIONER
AND
1. THE STATE OF AP, REP. BY ITS PRINCIPAL SECRETARY,
SCHOOL EDUCATION DEPARTMENT, A.P. SECRETARIAT,
VELAGAPUDI, AMARAVATI, GUNTUR DISTRICT
2. SAMAGRA SIKSHA ABHIYAN, REP. BY ITS STATE PROJECT
DIRECTOR, IBRAHIMPATNAM, VIJAYAWADA, KRISHNA DISTRICT
3. THE DISTRICT COLLECTOR AND CHAIRMAN, ANDHRA PRADESH
SAMAGRA SIKSHA, KURNOOL DISTRICT AT KURNOOL
4. THE DISTRICT EDUCATIONAL OFFICER AND EXOFFICIO PROJECT
COORDINATOR, ANDHRA PRADESH SAMAGRA SIKSHA,
KURNOOL DISTRICT AT KURNOOL
…RESPONDENT(S):
Page 4 of 13 SRS,J
W.P.No.23697 of 2024
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 topleased to issue an appropriate Writ, order or direction mostly one
which is in the nature of a Writ of Mandamus declaring the action of the
Respondents in terminating the services of the petitioner with immediate
effect by Proceedings in proceedings in Rc.No.1Spl/APMS GH/2024, dated
18.04.2024 of the 4rt Respondent as illegal, arbitrary, unconstitutional and
also in violation of principles of natural justice, and to set aside the same and
consequently to direct the Respondents to reinstate the Petitioner into service
with all consequential benefits including the back wages and to passIA NO: 1 OF 2024
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
pleased to suspend the operation of Proceedings in proceedings in
Rc.No.1Spl/APMS GH/2024, dated 18.04.2024 of the 4rt Respondent and
passCounsel for the Petitioner:
1. SODUM ANVESHA
Counsel for the Respondent(S):
1. REVANURU SUDHA RANI (SC FOR SAMAGRA SHIKSHA)
2. GP FOR SERVICES III
The Court made the following order:
This writ petition is filed to declare the action of the respondents in
terminating the services of the petitioner with immediate effect by proceedings
in Rc.No.1Spl/APMS GH/2024 dated 18.04.2024 issued by respondent No.4,
as illegal and arbitrary.
2. The case of the petitioner, in brief, is that the petitioner applied for the
post of Warden/Matron as an outsourcing employee through Rushi
Venkateswara Outsourcing Agency. The said agency vide letter
No.RVOA/APMS/KNL/ ATP/2018 dated 19.04.2018 informed the petitioner
about her appointment as Warden/Matron at Andhra Pradesh Model School,
Page 5 of 13 SRS,J
W.P.No.23697 of 2024Girls Hostel at Maddikera. Since the date of her appointment, the petitioner
has been discharging her duties as a warden. While the matter stood thus, a
committee headed by the Additional Project Coordinator and Girl Child
Development Officer, visited the APMS Girls Hostel, Maddikera, on
21.03.2024 and submitted a preliminary report to the respondents, attributing
some irregularities on the part of the petitioner. Based on the said report,
respondent No.4, without issuing any notice and conducting enquiry, by
proceedings in Rc.No.1Spl/APMS GH/2024 dated 18.04.2024 terminated the
petitioner’s services with immediate effect. Hence, the writ petition.
3. A counter affidavit was filed on behalf of 4th respondent. It was
contended inter alia, that because of the severity of the allegations, including
misuse of authority, corruption and endangerment of students, the petitioner’s
services were terminated. The recruitment process for a new warden is near
completion, and a qualified candidate will assume the post of warden on
24.10.2024.
4. Heard Smt. Sodum Anvesha, learned counsel for the petitioner; R.S.
Manidhar Pingali, learned Assistant Government Pleader for Services, for
respondent No.1 and Sri Nageswar Rao, learned counsel representing
Smt. R. Sudha Rani, learned standing counsel for respondents 2 to 4.
5. Learned counsel for the petitioner would submit that no notice much
less show cause notice was issued to the petitioner before terminating
petitioner’s services. The action of termination is against the tenet of the
principles of natural justice. Termination being stigmatic, opportunity should
have been afforded to the petitioner.
6. Learned standing counsel, per contra, would contend that the
allegations against the petitioner are very serious. The petitioner misused the
authority vested with its office. After terminating the petitioner, a qualified
person was appointed to the post of warden.
Page 6 of 13 SRS,J
W.P.No.23697 of 2024
7. The point for consideration is :
Whether the proceedings impugned, are legally sustainable?
8. As seen from Ex.P1, the termination proceedings, the following lapses
on the part of the petitioner, were noted.
“Smt D.Usha Rani, Warden APMS Girls Hostel, Maddikera has
failed to discharge her duties and allowing the unknown male
persons into the Girls hostel frequently during night times as per the
statement of staff, and also misappropriation of provisions, rice
bags oils and various cereal powders during the night hours and
giving insufficient provisions to the cooks without following the per
capita and frequently quarreling with her sub staff and showing
misbehavior with staff”
9. No doubt, as seen from the lapses pointed out above, they are serious.
However, whether any opportunity has been provided to the petitioner or not,
needs to be considered.
10. Three references were noted in the proceedings impugned. None of the
references would disclose the issuance of show cause to the petitioner. It
seems the preliminary enquiry was conducted behind the petitioner. No report
seems to have been supplied to the petitioner calling for an explanation. Even
the counter affidavit doesn’t disclose the issuance of a show cause notice.
11. In State of U.P. v. Kaushal Kishore Shukla1, the Hon’ble Apex Court
considered the preliminary enquiry vis-a-vis temporary employee and the
protection under Article 311 of the Constitution of India observed as follows:
7. A temporary government servant has no right to hold the post, his
services are liable to be terminated by giving him one month’s notice
without assigning any reason either under the terms of the contract1
(1991) 1 SCC 691
Page 7 of 13 SRS,J
W.P.No.23697 of 2024providing for such termination or under the relevant statutory rules
regulating the terms and conditions of temporary government servants. A
temporary government servant can, however, be dismissed from service
by way of punishment. Whenever, the competent authority is satisfied that
the work and conduct of a temporary servant is not satisfactory or that his
continuance in service is not in public interest on account of his
unsuitability, misconduct or inefficiency, it may either terminate his
services in accordance with the terms and conditions of the service or the
relevant rules or it may decide to take punitive action against the
temporary government servant. If it decides to take punitive action it
may hold a formal inquiry by framing charges and giving opportunity
to the government servant in accordance with the provisions of
Article 311 of the Constitution. Since, a temporary government
servant is also entitled to the protection of Article 311(2) in the same
manner as a permanent government servant, very often, the question
arises whether an order of termination is in accordance with the contract
of service and relevant rules regulating the temporary employment or it is
by way of punishment. It is now well settled that the form of the order is
not conclusive and it is open to the court to determine the true nature of
the order. (emphasis is mine)The Hon’ble Apex Court considered the observations in Parshotam
Lal Dhingra v. Union of India2 and further stated as under:
“… the mere use of expressions like ‘terminate’ or ‘discharge’ is not
conclusive and in spite of the use of such expressions, the court may
determine the true nature of the order to ascertain whether the action
taken against the government servant is punitive in nature. In determining
the true nature of the order the court should apply two tests namely: (1)
whether the temporary government servant had a right to the post or the
rank or (2) whether he has been visited with evil consequences; and if
either of the tests is satisfied, it must be held that the order of termination2
AIR 1958 SC 36
Page 8 of 13 SRS,J
W.P.No.23697 of 2024of a temporary government servant is by way of punishment. It must be
borne in mind that a temporary government servant has no right to hold
the post and termination of such a government servant does not visit him
with any evil consequences. The evil consequences as held in Parshotam
Lal Dhingra case do not include the termination of services of a temporary
government servant in accordance with the terms and conditions of
service.”
12. In State of Orissa v. Ram Narayan Dass3 a constitution bench of
Hon’ble Apex Court observed:
“the fact of the holding of an inquiry is not decisive of the question. What is
decisive is whether the order is by way of punishment, in the light of the
tests laid down in Parshotam Lal Dhingra case AIR 1958 SC 36″.
13. It is altogether a different thing if the competent authority concludes the
standards or capacity of the temporary employee qua the employment in
pursuance of a preliminary enquiry.
14. In Jagdish Mitter Vs Union of India4, the Hon’ble Apex Court held that
every order terminating the services of a temporary public servant does not
amount to dismissal or removal from service merely because an inquiry was
held before the order of termination was passed. It was further observed that
the appropriate authority has the power to terminate a temporary public
servant either by discharging him under the terms of the contract or the
relevant rules or by holding a departmental disciplinary inquiry and dismissing
him from service. Before passing the order of termination the competent
authority may hold inquiry in fairness to ascertain whether the temporary
servant should be continued in service or not. While discussing the nature of
preliminary inquiry the Hon’ble Apex court observed as under:
3
AIR 1961 SC 177
4
AIR 1964 SC 449
Page 9 of 13 SRS,J
W.P.No.23697 of 2024
11.”There is no element of punitive proceedings in such an enquiry; the
idea in holding such an enquiry is not to punish the temporary servant but
just to decide whether he deserves to be continued in service or not. If as
a result of such an enquiry, the authority comes to the conclusion that the
temporary servant is not suitable to be continued, it may pass a simple
order of discharge by virtue of the powers conferred on it by the contract
or the relevant rule; in such a case, it would not be open to the temporary
servant to invoke the protection of Article 311 for the simple reason that
the enquiry which ultimately led to his discharge was held only for the
purpose of deciding whether the power under the contract or the relevant
rule should be exercised and the temporary servant discharged.”
15. Thus, when a preliminary enquiry is held against a temporary
government employee, it must not be confused with a regular departmental
inquiry which usually follows the preliminary inquiry. So far as the preliminary
enquiry is concerned, it is made for the purpose of collection of facts to enable
the competent authority to decide whether punitive action or action should be
taken in terms and under the contract of service or the rules applicable to a
temporary government servant. A government servant has no right to insist for
affording him opportunity during such enquiry and such an ex-parte enquiry is
not vitiated.
16. The Hon’ble Apex Court in Champaklal Chimanlal Shah v. Union of
India5 observed as under:
“In short a preliminary enquiry is for the purpose of collection of facts in
regard to the conduct and work of a government servant in which he may
or may not be associated so that the authority concerned may decide
whether or not to subject the servant concerned to the enquiry necessary
under Article 311 for inflicting one of the three major punishments
mentioned therein. Such a preliminary enquiry may even be held ex-parte,
for it is merely for the satisfaction of government, though usually for the5
AIR 1964 SC 1854
Page 10 of 13 SRS,J
W.P.No.23697 of 2024sake of fairness, explanation is taken from the servant concerned even at
such an enquiry. But at that stage he has no right to be heard for the
enquiry is merely for the satisfaction of the government, and it is only
when the government decides to hold a regular departmental enquiry for
the purposes of inflicting one of the three major punishments that the
government servant gets the protection of Article 311 and all the rights
that that protection implies as already indicated above. There must
therefore be no confusion between the two enquiries and it is only when
the government proceeds to hold a departmental enquiry for the purpose
of inflicting on the government servant one of the three major punishments
indicated in Article 311 that the government servant is entitled to the
protection of that article.
17. However, in the case at hand, as noted supra, stigmatic allegations
were made against the petitioner in the proceedings impugned. No opportunity
was afforded to the petitioner to explain to the allegations. The basis of
termination is apparent.
18. Whether a termination is punitive or simpliciter and tests to determine
the same was considered by Hon’ble Apex Court in Pavanendra Narayan
Verma Vs Sanjay Gandhi PGI of Medical Sciences6 observed as follows:
21. One of the judicially evolved tests to determine whether in substance
an order of termination is punitive is to see whether prior to the termination
there was (a) a full-scale formal enquiry (b) into allegations involving moral
turpitude or misconduct which (c) culminated in a finding of guilt. If all
three factors are present the termination has been held to be punitive
irrespective of the form of the termination order. Conversely if any one of
the three factors is missing, the termination has been upheld.
19. In a very recent judgment U.P. State Road Transport Corporation
and others Vs Brijesh Kumar and another7 the Hon’ble Apex Court while
6
(2002) 1 SCC 520
Page 11 of 13 SRS,J
W.P.No.23697 of 2024
affirming the decision of Allahabad High Court confirming the order of learned
single judge, qua termination observed as follows:
19. The services of the respondent have been determined solely on the
ground of misconduct as alleged but without holding any regular inquiry or
affording any opportunity of hearing to him. The termination order has
been passed on the basis of some report which probably was not even
supplied to the respondent. No show cause notice appears to have been
issued to the respondent. Therefore, the order of termination of his
services, even if on contractual basis, has been passed on account of
alleged misconduct without following the Principles of Natural Justice. The
termination order is apparently stigmatic in nature which could not have
been passed without following the Principles of Natural Justice.
20. In the case at hand as discussed supra, the termination of the petitioner
is not simpliciter. It is a stigmatic termination. In such circumstances, the
authority ought to have conducted an inquiry by, giving an opportunity to the
petitioner, and also by providing the requisite documents. The proceedings
impugned suffer from violation of principles of natural justice and hence are
liable to be set aside.
21. Accordingly this writ petition is allowed. The proceedings issued by
respondent No.4 vide Rc.No.1Spl/APMS GH/2024 dated 18.04.2024 are
hereby set aside. Respondent No.4 shall issue notice afresh to the petitioner
and conduct an enquiry, by giving an opportunity to the petitioner, and pass a
reasoned order. Based on the enquiry report, the respondent shall decide on
the services of the petitioner. The above exercise shall be completed within
eight weeks from receipt of the copy of the order. No costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
___________________________
7
2024 SCC Online SC 2282
Page 12 of 13 SRS,J
W.P.No.23697 of 2024
JUSTICE SUBBA REDDY SATTI
Dated: 21.12.2024
IKN
Page 13 of 13 SRS,J
W.P.No.23697 of 2024
THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
WRIT PETITION NO: 23697/2024
Dated: 21.12.2024
IKN