WP/25418/2020 of S. Prakasah Vs The State of A.P on 31 December 2020

ORDER :

This petition is filed under Article 226 of the Constitution of India claiming 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 3[rd]respondent in terminating the petitioner from service vide proceedings F.No:SVBC/CEO/DA/2020-2 dated 14.12.2020 as illegal, arbitrary, violative of principles of natural justice contrary to Articles 14, 16 and 311 of the Constitution of India consequently set aside the proceedings F.No.SVBC/CEO/DA/2020-2 dated 14.12.2020 and pass such other order or orders.”

2. The case of the petitioner in brief is that he was appointed as Cashier in the office of 3[rd] respondent on contract basis on 08.04.2008 and promoted as Junior Accountant in the office of the 3[rd]respondent vide proceedings No.SVBC/TPT/COO/01/09, dated 27.03.2009. A complaint was made by one devotee by name Sri Venakta Krishna to the 2[nd]respondent alleging that he received a porn link in reply to his mail from email address of “Sathamanam Bhavati” department dated 06.11.2020. On such complaint, the 3[rd] respondent has requested the 4[th] respondent to enquire into the matter and submit a report on or before 16.11.2020. Thereafter, the 4[th]respondent submitted his report to the 3[rd] respondent stating that this petitioner and some others were indulged in unethical practice. Basing on the said report, the 3[rd] respondent issued termination proceedings to the petitioner vide F.No.SVBC/CEO/DA/2020-2, dated 14.12.2020 without issuing any notice. Aggrieved by the action of the 3[rd] respondent, the present writ petition is filed mainly on the ground that no notice was issued to the petitioner before termination of contract and no opportunity was afforded to him to give explanation to the proposed action of termination of contract of service and that the action of the 3[rd] respondent is illegal, arbitrary and requested to set aside the above proceedings dated 14.12.2020.

3. Heard learned counsel for the petitioner and the Sri S.S. Prasad, learned Senior counsel appearing for R.1 and Sri A.Sumanth, learned Standing Counsel for TTD appearing for R.2 to R.4.

4. During hearing, learned counsel for the petitioner reiterated the contentions and mainly contended that no notice was issued to the petitioner before taking action and terminating his service on the allegation that the petitioner sent a porn link to the devotee by email would seriously prejudice the career of this petitioner in future and requested to set aside the same.

5. Learned Senior counsel Sri S.S.Prasad, appearing on behalf of the respondents contended that the petitioner was discharging his duties in a pious place but engaged in unethical activities, and therefore, he does not deserve any sympathy and no notice is required to be issued to the petitioner before termination since the contract of service ends by today.

6. Admittedly, the service of the petitioner was engaged on 08.04.2008 as Cashier in the office of the 3[rd] respondent on contract basis. An agreement was entered into between the 3[rd]respondent and this petitioner in writing. Later, the petitioner was promoted as Junior Accountant in the office of the 3[rd]respondent. However, a devotee by name Sri Venkata Krishna received a porn link in reply to the email sent to Sathamanam Bhavathi department of Sri Venkateswara Swamy Temple at Tirumala. It was eminating from the email address of this petitioner. Therefore, the petitioner while discharging his duties in a pious temple indulging in such unethical activities by sending such emails and circulating the same to other employees who in turn sending those messages to the devotees as a matter of serious concern and such person does not deserve any sympathy and his services cannot be continued even on contract basis or otherwise.

7. The law is well settled that a temporary employee can be terminated at any time and if termination is as punishment in nature a formal enquiry is to be conducted otherwise he can be terminated with one month’s notice. The Hon’ble Apex Court in State of U.P and another vs Km.Prem Lata Misra and others[1], held as follows:

“This Court, considered the entire case law elaborately and had held that the termination is in terms of the order of appointment and that therefore, it is not by way of punishment as punitive measure. Accordingly the need to conduct an inquiry into the alleged misconduct does not arise and the termination of service in terms of the contract was held to be valid. It is settled law that the court can lift the veil of the innocuous order to find whether it is the foundation or motive to pass the offending order. If misconduct is the foundation to pass the order then an enquiry into misconduct should be conducted then an action according to law should follow. But if it is motive, it is not incumbent upon the competent officer to have the enquiry conducted and the service of a temporary employee could be terminated, in terms of the order of appointment or rules giving one month's notice or pay, salary in lieu thereof. Even if an enquiry was initiated, it could be dropped midway and action could be taken in terms of the rules or order of appointment. The same principle applies to the facts in this case. It is seen that the respondent was appointed by direct recruitment by selection committee constituted by the Government in this behalf and on finding about the suitability to the post as an Asstt. Project Officer, the respondent was appointed and was posted to the place where she had joined. Thereafter, her work was supervised by the higher officers and two officers have submitted their reports concerning the performance of the duties by the respondent. She was regularly irregular in her duties, insubordination and left the office during office hours without permission etc. On consideration thereof, the competent authority found that the respondent is not fit to be continued in service as her work and conduct were unsatisfactory. Under these circumstances, the termination is for her unsuitability or unfitness but not by way of punishment as a punitive measure and one in terms of the order of appointment and also the Rule. Accordingly, the High Court has gone against settled law in allowing the writ petition.”

8. The present case is worse than the facts of above decision since the petitioner is only a contract employee, his service is governed by terms of contract, even if the above principle is applied, the petitioner is not entitled to relief.

9. When an employee engaged on contract basis, no departmental enquiry need be initiated to take departmental action against him. In the present case, since there is no relationship between the temple and the petitioner as an employer and employee, and at best, it is only contract to render services in the temple on payment of consideration for such rendering services. Termination of service of this petitioner always depends upon terms and conditions of the contract. Therefore, the petitioner, if entitled to any notice in terms of the contract or payment of any salary before termination, the respondent may take appropriate action in terms of contract of

service between the petitioner and the respondent. But the petitioner is not entitled to claim a writ of Mandamus as a matter of right, having indulged in such unethical and immoral activities. Therefore, at best, the petitioner may claim any right, if conferred on him by terms and conditions of the contract for payment of salary. In view of the above, the petitioner may proceed against the department to enforce contract of service, but not by way of Writ petition, as per the terms of the contract, if permitted.

10. Accordingly, the Writ Petition is dismissed. No order as to costs.

As a sequel, all the pending miscellaneous applications shall stand closed.

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M. SATYANARAYANA MURTHY, J.

Date : 31-12-2020 Gvl

HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY

WRIT PETITION No.25418 of 2020

Date : 31.12.2020

Gvl