PUSHPA LEELA K Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) .Conscious we are that a Government Pleader or Assistant Government Pleader is appointed not under any statute but is contracted to work in the cases instituted by or against the Government of the State and thus termination of such appointment of a Government Pleader or Assistant Government Pleader does not attract such principles of law which are applied to employees of the Government of the State or its agents, instrumentalities or even of other statutory authorities. Conscious also we are of the principle that Courts ordinarily do not interfere with the termination of appointment of a lawyer by a client as Courts do not decide upon the choice of the client to engage a lawyer for its work and a client has freedom to replace a lawyer already engaged for work by another lawyer, yet, when we enter into the facts as disclosed in the instant proceeding we see that the case is not one of an run-of-the-mills and is an exception which needs Court's intervention.

(2.) . Petitioner-appellant, it is not in dispute, has been appointed to work 2 as Assistant Government Pleader in Andhra Pradesh Administrative Tribunal (for short A.P.A.T.) along with others vide G.O.Rt.No.34, Law Department dated 16-1-1996. She assumed charge on 17-1-1996. She was functioning in the said capacity when some allegations were made against her by some other advocates practising in the A.P.A.T. to the learned Advocate General and one Ms. Revathi complained in writing to the learned Advocate General that the petitioner-appellant had misbehaved with her. Learned Advocate General in his turn marked said complaint to the Special Officer who is appointed by the State Government for supervision of the office of the Government Pleaders and allegedly wanted him to inquire into the allegations in the complaint of Ms. Revathi. The Special Officer called upon the petitioner-appellant to appear before him. He held some sort of inquiry and submitted the report thereof to the learned Advocate General. Learned Advocate General forwarded the said report of the Special Officer to the State Government. The State Government upon the same issued G.O. Rt.No.856, Law, 12th October, 1996. No.183, which was published in the Andhra Pradesh Gazette dated 28th November, 1996. The said Government Order reads as follows:- "Under Rule 5 of the Executive Instructions issued in G.O.Ms. No.57, Law, dated 16-3-1990, the Government hereby terminate the services of Ms. K. Pushpa Leela, Assistant Government Pleader, Andhra Pradesh Administrative Tribunal, Hyderabad on payment of one month's remuneration in lieu of one month's notice with immediate effect. The Advocate-General, Andhra Pradesh Hyderabad is requested to send a fresh panel to the Government for filling up the said post in accordance with rules at an early date." The order when read without the words Andhra Pradesh Administrative Tribunal-Ms. K. Pushpa Leela, Assistant Government Pleader Alleged Misbehaviour Enquiry conducted Termination of Service, is one purportedly made in exercise of the discretion Rule 5 of the Executive Instructions in this behalf provide and thus it is said it is termination of the engagement of the petitioner-appellant as the Assistant Government Pleader by the State Government. Petitioner-appellant however has her own version how she has been treated in the name of caste by some of her colleagues particularly by Smt. Revathi in respect of which she allegedly made grievances and narrated such events to her colleages. However, learned single Judge has held, "It is no doubt true that the impugned G.O. refers to the report sent by the third respondent on 7-10-1996 but ultimately the Government has decided to terminate the services of the petitioner after following the procedure i.e., payment of one month's remuneration in lieu of one month's notice with immediate effect." and at the stage of admission, after perusing the record disposed of the petition holding inter alia as follows:- "The record would reveal that the learned Advocate General merely forwarded the report submitted by the Special Officer, Government Pleaders' Office without making any recommendation of his own and without expressing any opinion whatsoever about the enquiry report submitted by the Special Officer. Thereafter the matter was considered by the Government and the Government also did not express any opinion whatsoever about the report submitted by the Special Officer, Government Pleaders' Office. The Government merely noted the submission of the report by the Special Officer, Government Pleaders' Office. On the other hand., the Government relied upon the Executive Instructions issued in G.O.Ms. No.57, Law, dated 16-3-1990 with a particular reference to instruction No.5 which reads that "Law Officers shall ordinarily be appointed for a term of three years. However, either party may terminate the engagements with one month notice or by paying one month's remuneration in lieu of one month's notice in case of termination by Government". The Government observed that "it is therefore proposed to terminate the services of Ms. K.P. Leela, Assistant Government Pleader, A.P. Administrative Tribunal with immediate effect by paying one month's remuneration in lieu of one month's notice and to fill up the post by obtaining a fresh panel from the Advocate General, A.P. High Court, Hyderabad." The decision-making process thus would clearly show that the termination of the petitioner's services as the Assistant Government Pleader is not by way of any disciplinary measure. It is a case of simple termination in accordance with the instruction No.5 of the Rules referred to herein above in G.O.Ms. No.57 Law, dated 16-3-1990. The same, in my considered opinion, does not amount to casting any stigma whatsoever upon the petitioner. It is a case of simple termination of relationship between an Advocate and a client. The order does not reflect upon the capacity or integrity of the petitioner in discharge of her functions as the Assistant Government Pleader in A.P. Administrative Tribunal. The petitioner has no cause for complaint. It is, however, declared that the order passed by the Government is an order of simple termination of services without reflecting any opinion on the integrity and capacity of the petitioner as the Assistant Government Pleader. This order would not come in the way of the petitioner in any manner whatsoever in future whenever her case is to be considered for appointment to any public office. Since the learned Advocate General has not expressed any opinion whatsoever against the petitioner except passing on the report and records to the Government for appropriate action in the matter, I am of the considered opinion that he is neither an appropriate nor a necessary party to the petition. In such view of the matter, the 2nd respondent is deleted from the array of the parties and the order passed by this Court is confined as against respondents 1 and 3. The instant appeal has been preferred against the said judgment of the learned Single Judge under Clause 15 of the Letters Patent of the Court.

(3.) It has not been urged before the learned single Judge that under the aforementioned Executive Rules the petitioner-appellant was holding a contract of a sort under which she was engaged for work by the State Government in such cases which were assigned to her and that it was not a contract of service. The impugned order purports to terminate the services of the petitioner-appellant. Doubt if any, thus which could be entertained whether it is withdrawal of the brief and thus termination of the contract for service of the petinoer appellant by the State and not a termination of a contract of service, in our view, has to be kept aside and the matter disposed of as if the parties understood that the petitioner-appellant was employed for work by the respondent State Government and that the conditions of service were governed by the aforementioned executive rules which, as noticed by the learned single Judge, permitted termination of the services of the Government Pleader on payment of one month's remuneration in lieu of one month's notice with immediate effect. In the case of a Probationer, a person in temporary employment or even a person who was employed for a tenure under a contract, termination simplicitor which is in accordance with the rules and in the absence of statutory rules in accordance with the executive instructions and in the absence of executive instructions at the discretion of the employer in terms of the conditions of contract of service, ordinarily does not provide a cause of action in a Court of law for setting aside the order of termination. Law in this behalf is well settled and no authorities need be cited for the said view. In Shamsher Singh vs. State of Punjab the Supreme Court has said that in the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperament or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption and if his services are terminated without following the provisions of Article 311 (2) he can claim protection. The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. The preliminary inquiry to satisfy that there was reason to dispense with the service of a temporary employee does not attract Article 311. On the other hand a statement in the order of termination that the temporary servant is undesirable imports an element of punishment. Thus according to the said judgment of the Supreme Court if the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to the protection of Article 311. The substance of the order and not the form would be decisive.