V. Nageswara Rao vs The Govt. of A.P. and Another

G. Bikshapathy, J.—The petitioner is assailing the proceedings of the 2nd respondent, dated 12-9-1995 (wrongly typed as 12-8-1995) as illegal and arbitrary and violative of Principles of natural justice.

The facts of the case are that the petitioner was working as General Manager at Rajahmundry union. While so, he attained the age of superannuation of 58 years and he was sought to be retired from service from 31-7-1995. On 7-2-1995 a communication was also issued to the petitioner that he would retire from service on 31-7-1995 on attaining the age of superannuation. However, on 31-7-1995 a communication was issued by the Managing Director of the 2nd respondent Federation to re-employ the petitioner for a period of one year after the date of superannuation i.e., 31-7-1995. The extract of the D.O. Letter, dated 31-7-1995 is as follows:-

"You may re-employ Sri V. Nageswara Rao, General Manager, A.P. Dairy Development Co-operative Federation Limited, Rajahmundry as General Manager of the A.P. Dairy Development Co-operative Federation Limited at Rajahmundry for a period of one year after retirement on 31-7-1995 on superannuation and intimate the action taken to the Government immediately."

In pursuance of the said communication from the Government, the Managing Director of 2nd respondent issued telegram to the General Manager, Rajahmundry on the same day, which is extracted below:-

"Sri V. Nageswara Rao, re-employed General Manager, Godavari Union with effect from 1-8-1995 as per Government instructions. Orders follow - A.P. Dairy."

In pursuance of the said telegraphic communication, the petitioner was re-employed and he is continuing to function as General Manager on re-employment basis. While matter stood thus, the Board of Directors of the Federation in its 106th meeting held on 5-9-1995 considered the matter relating to re-employment of the petitioner and decided not to grant re-employment to the petitioners. This decision was communicated to the petitioner by the Managing Director by orders, dated 12-9-1995. The said proceedings are assailed by the petitioner in this writ petition.

The grievance of the petitioner is that the petitioner having been re-employed for a period of one year with effect from 1-8-1995 cannot be discontinued on the ground that the Board of Directors of the Federation have decided not to re-employ the petitioner after retirement on attaining the age of superannuation. It is also his contention that the impugned order is in gross violation of the principles of natural justice, inasmuch as no notice or opportunity was given to him before terminating his re-employment tenure.

In the counter filed on behalf of the Federation it is contended that the petitioner was issued a communication, dated 7-2-1995 permitting him to retire from service with effect from 31-7-1995 without prejudice to the disciplinary action, which is contemplated against the petitioner. For the appointment to the post of General Manager of the Federation, the competent authority is the Board of Directors and therefore, the petitioner could not have been re-employed as General Manager in the absence of valid decision taken by the Board of Directors. Thirdly, it is also submitted that the petitioner is involved in disciplinary case and action was contemplated under Rule 9 of the Pension Rules, inasmuch as the decision was taken by the Board of Directors on 5-9-1995 that the petitioner has no right to continue as General Manager under re-employment.

The learned Government Pleader also submits that after the writ petition was filed, the matter was reviewed and communication was received from the Government on 27-9-1995 cancelling the proceedings, dated 31-7-1995 and therefore, the petitioner has no right to continue as General Manager of the Federation.

I have considered the respective contentions raised by the learned Counsel. The only grievance that has to be considered is whether the petitioner is entitled for an opportunity before his re-employment tenure is terminated by proceedings, dated 12-9-1995. To this, the learned Counsel for the Federation Sri V. Eshwaraiah contends that the very action to continue the petitioner on re-employment basis as General Manager is contrary to law, inasmuch as the Board has not approved his re-employment. It must be held that the petitioner is continuing under incompetent orders. Therefore, when the petitioner is continuing under incompetent orders, the question of violation of principles of natural justice does not arise and his re-employment can be terminated without any notice. He also relies on the judgment of the learned Supreme Court in Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, wherein it was held that the illegal orders have no force of law and they cannot be enforced.

Admittedly, in the instant case, on the communication received from the Government, the Managing Director has issued the orders to re-employ the petitioner for a period of one year from 1-8-1995. It is only on 12-9-1995 the petitioner was served with the order of cancellation of re-employment on the ground that the Board of Directors have taken a decision not to employ him after his retirement on attaining the age of superannuation. This action has the effect of termination of re-employment period of the petitioner. It is now well settled that if the administrative action having the effect of civil consequences is taken, the principles of natural justice have to be necessarily followed. In the instant case, no notice or opportunity was given to the petitioner before the impugned order of termination of re-employment tenure has been passed. Under these circumstances, without going into the merits of the case, I am inclined to allow the writ petition. Accordingly, writ petition is allowed and the impugned order, dT. 12-9-1995 is quashed. However, it does not preclude the 2nd respondent from issuing a notice to the petitioner and taking further action as it dees fit keeping in view the decision of the Board of Directors of the Federation. No costs.