APHC010382202023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3460] WEDNESDAY, THE TWENTY NINETH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION NO: 19377/2023 Between: 1. M.V.ASHOK KUMAR REDDY,, S/O SUDHAKAR REDDY, AGED 34 YEARS, PRESENTLY WORKING AS ASSISTANT EXECUTIVE ENGINEER (I/C), R/O 5-19, CHENCHUGARIPALLI, VONTIMITTA MANDAL, YSR KADAPA DISTRICT -516213 ...PETITIONER AND 1. STATE OF ANDHRA PRADESH, REP. BY ITS PRINCIPAL SECRETARY HEALTH, MEDICAL AND FAMILY WELFARE, SECRETARIAT BUILDINGS, VELAGAPUDI, AMARAVATI 2. THE MANAGING DIRECTOR, ANDHRA PRADESH MEDICAL SERVICES AND INFRASTRUCTURE DEVELOPMENT CORPORATION (APMSIDC), PLOT NO.9, SY.NO.49, I.T.PARK, MANGALAGIRI, GUNTUR DISTRICT - 522 503 3. THE EXECUTIVE ENGINEER, ANDHRA PRADESH MEDICAL SERVICES AND INFRASTRUCTURE DEVELOPMENT CORPORATION (APMSIDC), KADAPA DIVISION, KADAP, YSR DISTRICT 4. THE TADIPATRI TOWN LABOUR CONTRACT SOCIETY, REP. BY AMZAD HUSSAINN, C/O 245, ALLABAKSH STREET, TADIPATRI TOWN, ANANTAPURAM DIST - 515 411 ...RESPONDENT(S): 2 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 an appropriate Writ, order or direction, particularly in the nature of a Writ of Mandamus under Article 226 of the Constitution of India declaring the MEMO No.RIMS- KDP/S.I/Estt./APMSIDC/2023, dt.28-07-2023 (Impugned Memo) passed by the Respondent No.2 thereby terminating the services of Petitioner, as arbitrary, illegal, discriminatory, and violative of the Art.14, Art.19 and Art. 21 of the Constitution of India and contrary to the principle of natural and consequentially set aside the same and direct the respondents to reinstate and continue the services of the Petitioner herein as Technical Assistant (Electrical)/ Assistant Executive Engineer (Electrical) and pass such other order. IA NO: 1 OF 2023 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 to suspend MEMO No.RIMS-KDP/S.I/Estt./APMSIDC/2023, dt.28- 07-2023 (Impugned Memo) and continue the Petitioner services with Respondent Corporation and pass such other order. IA NO: 2 OF 2023 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 to vacate the interim order dated 02-08-2023 in WP.No.19377 of 2023 and dismiss the writ petition and to pass such other order. IA 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 to grant leave to file the reply to the counter filed along with I.A No.2 of 2023 in the registry and consider the same. Counsel for the Petitioner: 1. JAVVAJI SARATH CHANDRA Counsel for the Respondent(S): 1. GP FOR SERVICES IV 2. S PRANATHI The Court made the following: 3 HON’BLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION No.19377 of 2023 ORDER: 1. The present Writ Petition is filed questioning the impugned Memo No.RIMS-KDP/S.I/Estt./APMSIDC/2023, dated 28.07.2023, issued by Respondent No.2 terminating the services of the Petitioner, as illegal and arbitrary. 2. The brief facts of the case as are follows; The Petitioner had completed Bachelor of Technology in Electrical and Electronics (EEE) in the year 2009. The Petitioner was appointed as Technical Assistant (Electrical) in Respondent No.2- Corporation and posted to IIIT Circle, Idupulapaya on outsourcing basis. Subsequently, the Petitioner was assigned with a job chart with regard to various responsibilities including preparation of estimates, supervision of electrical installation works for major Government Buildings, Educational Institutions etc. The nature of job of the Petitioner is technical and akin to regular employees of Respondent No.2-Corporation. 3. It is stated that though the Petitioner was working through an outsourcing agency, the same is only a camouflage as it was the Respondent No.2-Corporation, which entered into contracts with 4 different agencies, and continuing the Petitioner with different agencies from time to time. It is contended that this mechanism was only intended to avoid regular scale to the Petitioner attached to the said post. 4. As the Petitioner was discharging duties of the regular employee, the Petitioner filed W.P.No.23394 of 2022 seeking for minimum time scale on par with the regular employees as per the Judgment of the Hon’ble Supreme Court in State of Punjab v. Jagjit Singh & Ors.1. While the said Writ Petition is pending, the impugned memo was issued directing the Executive Engineer, APMSIDC Division, Kadapa, YSR District, to address the outsourcing agency to take necessary action for terminating the Petitioner from the services without any notice. In the said Memo, it was mentioned that a news article was published in Andhra Jyothi daily newspaper, wherein it is mentioned that there was electricity failure on the intervening night of 22.07.2023 in between 11.30 p.m. to 3.30 a.m. at RIMS General Hospital, Kadapa. 5. The Petitioner in the Affidavit filed in support of the Writ Petition explained that the RIMS Government General Hospital, Kadapa has commissioned the electrical transformer, generator, panel boards and cables at the time of construction of RIMS Government General 1 2017 (1) SCC 148 5 Hospital in the year 2005, and on several occasions, the higher authorities were intimated to replace the new cables, transformers and generators. It is further stated that these aspects were factored in the estimate of strengthening of the existing transformers and other equipment in Medical College at GMC/GGH, Kadapa in YSR District with an estimated cost of Rs.75.00 Crores vide G.O.Ms.No.32, HM & FW Department, dated 22.03.2021. 6. In that estimate, the electrical components were also factored for an amount of Rs.7,74,80,522/-. It is stated that a detailed report was submitted regarding the electrical defects to the Executive Engineer of APMSIDC Division, Kadapa on 28.08.2021 as well as to the Superintendent of RIMS Government General Hospital, Kadapa. However, there was no response. 7. It is further explained in the Writ Affidavit that on the intervening night on 22.07.2023, the underground cables got damaged due to heavy rains and that the Superintendent, RIMS, Kadapa as well as the Petitioner had immediately attended and arranged alternative power supply at 2.30 a.m. It is further stated that the RIMS General Hospital, Kadapa had engaged four (4) Electricians and four (4) Diesel Mechanics exclusively for Electrical/Generator maintenance only and singling out the Petitioner was only inappropriate. 6 8. Respondent No.2 filed Counter-Affidavit contending that the Petitioner was engaged through an outsourcing agency and that there is no master-servant relationship between Respondent No.2- Corporation and the Petitioner. It is further stated that the services of the Petitioner were terminated by Respondent No.2-Corporation and the Respondent No.2 has no administrative control over the Petitioner. 9. It is further pleaded that the similarity of duties is also denied at Paragraph No.9 of the Counter-Affidavit and the duties and responsibilities of regular Assistant Executive Engineers and that of Technical Assistants appointed on outsourcing basis are shown in tabular statement in the Counter-Affidavit. It is stated that the Superintendent of RIMS General Hospital had informed Respondent No.2-Corporation vide Letter No.A/01/2023, dated 24.07.2023 that an adverse news item was published in Andhra Jyothi Daily Newspaper and the Medical Superintendent, RIMS General Hospital, Kadapa had complained against the Petitioner for failing to perform his legitimate duties properly, which lead to the incident. In that view, the impugned proceedings were issued. 7 10. Heard the learned counsel for the Petitioner as well as the learned Standing Counsel Smt. S. Pranathi appearing for Respondent No.2-Corporation, who reiterated their submissions in accordance with their respective pleadings. 11. The issues that fall for consideration are as follows; (a) Whether the Petitioner is working under the control of Respondent No.2-Corporation? (b) Whether the termination of the Petitioner without conducting enquiry is sustainable? 12. Issue (a): Over a period of time, number of tests were employed to determine the employer-employee relationship i.e. degree of control, degree of supervision, integration into organisation work, length of service among other tests. Taking note of the case law, the Hon’ble Supreme Court in Sushilaben Indravadam Gandhi and Another Vs. New India Assurance Co., Ltd., and Others2 held that conglomerate of all applicable tests in totality to determine the employer-employee relationship. The Paragraph No.32 thereof is extracted below; “32. A conspectus of all the aforesaid judgments would show that in a society which has moved away from being a simple agrarian society to a complex modern society in the computer age, the earlier 2 2021 (7) SCC 151 8 simple test of control, whether or not actually exercised, has now yielded more complex tests in order to decide complex matters which would have factors both for and against the contract being a contract of service as against a contract for service. The early "control of the employer" test in the sense of controlling not just the work that is given but the manner in which it is to be done obviously breaks down when it comes to professionals who may be employed. A variety of cases come in between cases which are crystal clear for example, a master in a school who is employed like other employees of the school and who gives music lessons as part of his employment, as against an independent professional piano player who gives music lessons to persons who visit her premises. Equally, a variety of cases arise between a ship's master, a chauffeur and a staff reporter, as against a ship's pilot, a taxi driver and a contributor to a newspaper, in order to determine whether the person employed could be said to be an employee or an independent professional. The control test, after moving away from actual control of when and how work is to be performed to the right to exercise control, is one in a series of factors which may lead to an answer on the facts of a case slotting such case either as a contract of service or a contract for service. The test as to whether the person employed is integrated into the employer's business or is a mere accessory thereof is another important test in order to determine on which side of the line the contract falls. The three-tier test laid down by some of the English judgments, namely, whether wage or other remuneration is paid by the employer: whether there is a sufficient degree of control by the employer and other factors would be a test elastic enough to apply to a large variety of cases. The test of who owns the assets with which the work is to be done and/or who ultimately makes a profit or a loss so that one may determine whether a business is being run for the employer or on one's own 9 account, is another important test when it comes to work to be performed by independent contractors as against piece-rated labourers. Also, the economic reality test laid down by the US decisions and the test of whether the employer has economic control over the workers' subsistence, skill and continued employment can also be applied when it comes to whether a particular worker works for himself or for his employer. The test laid down by the Privy Council in Lee Ting Sang v. Chung Chi-keung3, namely, is the person who has engaged himself to perform services performing them as a person in business on his own account, is also an important test, this time from the point of view of the person employed, in order to arrive at the correct solution. No one test of universal application can ever yield the correct result. It is a conglomerate of all applicable tests taken on the totality of the fact situation in a given case that would ultimately yield, particularly in a complex hybrid situation, whether the contract to be construed is a contract of service or a contract for service. Depending on the fact situation of each case, all the aforesaid factors would not necessarily be relevant, or, if relevant, be given the same weight. Ultimately, the Court can only perform a balancing act weighing all relevant factors which point in one direction as against those which point in the opposite direction to arrive at the correct conclusion on the facts of each case. 13. Reverting to this case, the undisputed fact is that the Petitioner was appointed as Technical Assistant (Electrical) on outsourcing basis in the year 2009 after due selection process and has been continuing in the said post till the date of issuance of the impugned memo. The further plea of the Petitioner is that he is under the direct control of 3 (1990) 3 AC 374 PC 10 Respondent No.2-Corporation, as the Respondent No.2-Corporation had consistently changed the outsourcing agencies, but the Petitioner continued to work under the control of Respondent No.2-Corporation through the changed outsourcing agencies. The specific plea on this aspect at Paragraph No.5 of the Writ Affidavit was not disputed in the Counter-Affidavit of Respondent No.2-Corporation. 14. The fact that, although the manpower agencies are changing from time to time, the Petitioner continued to remain constant, bolsters the plea that the Petitioner is working under the direct control and supervision of Respondent Nos.2 and 3. Therefore, it is not open to the Respondents to contend that there is no master-servant relationship between them and the Petitioner. The issue (a) is accordingly answered. 15. Issue (b): The termination of the employment of the petitioner was on account of the reasons mentioned in the impugned memo. It is to be noted that the Counter-Affidavit does not mention as to how the Petitioner is singularly responsible for the electrical failure on the intervening night of 22.07.2023 in between 11.30 p.m. to 2.30 a.m. Further, the Counter-Affidavit does not mention any action having been initiated against regular employees of the Respondent No.2- Corporation apart from the Petitioner. 11 16. It is quite apparent that the attribution of blame in its entirety on the Petitioner is only to shield the regular employees and top management by showcasing action for the sake of optics for the alleged lapse. The fact that the Petitioner was not even permitted to furnish an explanation to the allegations leading to his termination shows the targeted approach of the Respondent authorities to ensure termination of the services of the Petitioner. 17. Even in the case of termination of an outsourcing employee, Hon’ble Division Bench of this Court in The State of A.P, rep. by its Principal Secretary v. K. Madhu Phani and another4 held that even the outsourcing employees are entitled to an enquiry to be conducted when their services are being terminated on stigmatic grounds. The Paragraph No.4 thereof is extracted hereunder: “In our opinion, even in case of an outsourced employee, he cannot be stigmatized without an enquiry and in our opinion, the learned Single Judge has correctly appreciated the elements of prima facie case, balance of convenience and irreparable injury in making the interim order absolute”. 18. Therefore, as the impugned order of termination is stigmatic and has the bearing on the employment of the Petitioner, the Respondents are bound to conduct enquiry in compliance with the principles of natural justice and procedural fairness. 4 (2018) 1 ALT 125 (DBaan ) 12 19. Accordingly, the Writ Petition is allowed with the following directions; (i) The impugned Memo No.RIMS-KDP/ S.I/ Estt./ APMSIDC/ 2023, dated 28.07.2023, issued by Respondent No.2- Corporation terminating the services of the Petitioner is set- aside; (ii) The Respondents are directed to continue the services of the Petitioner as Technical Assistant (Electrical) at RIMS Government General Hospital, Kadapa; (iii) The Respondent No.2-Corporation is at liberty to conduct enquiry in compliance with the principles of natural justice and procedural fairness against the Petitioner. (iv) No order as to costs. 20. As a sequel, pending applications, if any, shall stand closed. __________________ NYAPATHY VIJAY, J Date: .10.2025 IS 13 HON’BLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION No.19377 of 2023 Date: .10.2025 IS