K. Pushpa Leela vs Government of Andhra Pradesh and Others

P.S. Mishra, C.J.—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.

Petitioner-appellant, it is not in dispute, has been appointed to work 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.

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 petitioner-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 Samsher Singh Vs. State of Punjab and Another, . 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.

A Division Bench of the Madras High Court in Government of Tamil Nadu v. S. Rajalakshmi, W.A. No. l210/91, dated 27-8-1992 to which one of us (Justice Prabha Shankar Mishra, as he then was) was a party has taken notice of the principle which the Courts have described as "removing the smoke-screen to see the real purport of the order" or "piercing the veil to see the ugly face of the evil which has inflicted the order", and referred to several authorities in Shamsher Singh case (1 s''upra) and finally held that an order of termination of service of a judicial officer temporarily employed as District Munsif/Magistrate on allegations made against her was vitiated for the evil consequences that followed the termination indicated that the order was not one of termination simplicitor.

It is some what disturbing to notice that except the status that the Constitution bestows upon the learned Advocate General and some executive instructions in which the Government has chosen to provide for consultation with the learned Advocate General in the matter of appointment of the Government Pleaders/Assistant Government Pleaders and other Law 40 Officers, there is neither any law made for the said purpose nor any executive instruction issued to give the constitutional primacy of the Advocate General the authority to supervise and control the establishment of the Government Pleaders including the Assistant Government Pleaders. Our attention has been drawn to some Government orders including one issued on 16th May, 1990 45 which says,

"Notwithstanding anything contained in the Andhra Pradesh Ministerial Service Rules or any other rule or order on the subject, the offices of all the Government Pleaders in the High Court and the Andhra Pradesh Administrative Tribunal shall be under the supervision of the Advocate General, Andhra Pradesh, Hyderabad with immediate effect."

and some other orders under which the Government appointed Special Officer in Government Pleaders'' Office from time to time to be in overall charge of the office of the Government Pleaders in the High Court of Andhra Pradesh and to function as liaison between the officers of the Government on the one hand and the Government Pleaders on the other. These, however, do not give to the learned Advocate General the status of a supervisory authority upon the Government Pleaders and thus Government Pleaders are left untouched in respect of their services under the Government of the State. There is a clarificatory Government Order dated 22nd August, 1990, which says that it is not the intention to make the Advocate General the appointing authority for the posts in the Ministerial Services borne on the establishment of the Offices of the Government Pleaders in the Andhra Pradesh High Court and the Andhra Pradesh Administrative Tribunal. These orders thus are of no help to find out whether the Advocate General had any legal authority to seek any inquiry whether by way of disciplinary proceeding or even preliminary in nature into the conduct of the Government Pleader/Assistant Government Pleader and that he could entrust such an inquiry to a Special Officer who was appointed primarily for the Superintendence of the Office of the Government Pleaders and to function as liaison between the Government Officers and the Government Pleaders/Assistant Government Pleaders. We still, however, hold the view that primacy the Constitution bestows to the learned Advocate General should give him the position of a person who on coming to know of the misconduct of any Government Pleader/Assistant Government Pleader report to the Government for suitable action and if the work of the State has suffered on account of any act of a Government Pleader/ Assistant Government Pleader to seek appropriate redressal so that the work in Court of the State is properly conducted by its Advocate, namely, the Government Pleader/Assistant Government Pleader. Learned Advocate General has made all endeavours to persuade us to hold that on coming to know about such actions of the Assistant Government Pleader (petitioner- appellant) he wanted facts to be ascertained and since he was conscious that he at his level was not authorised by any rule or executive instruction, such facts which the Special Officer ascertained were only forwarded to the State Government for suitable action in the matter. We have no reasons to doubt the purpose and the intentions of the learned Advocate General and we make it clear that as the first Counsel of the State his anxiety has to be appreciated and his actions cannot be faulted for the reason that he has no authority to do so. We have difficulties in the instant case however to treat the report of inquiry by the Special Officer as one which was for appraising the learned Advocate General of the truth or otherwise of the allegations of Ms. Revathi and others against the petitioner-appellant and was not intended to be a report to the Government of a finding of misconduct of the petitioner-appellant. We have seen the preamble of the Government Order terminating the petitioner- appellant''s services as published in the Gazette which leaves no manner of doubt as to the nature of the report of the Special Officer in respect of the alleged misbehaviour of the petitioner-appellant. We are prepared to assume that learned Advocate General intended no inquiry into the alleged misconduct for the purpose of action against the petitioner-appellant, nonetheless, the Special Officer''s report has been used as the basis for the action against the petitioner-appellant which apparently contained some such condemnation. And although in the Gazette notification words condemning the petitioner-appellant are not published, by reference incorporated for the action-"Alleged misbehaviour, enquiry conducted, termination of service"- it is clear that action is taken only upon the report. What is reported however by the Special Officer is incorporated in the Government Order which in addition to the order published in the Official Gazette, as noticed by the learned single Judge, reads as follows:-

"In his letter 2nd read above, the Advocate General has stated that on 9-9-1996 he has received a complaint from Smt. P. Revati, Advocate against Ms. K. Pushpa Leela, Assistant Government Pleader stating that on 4-9-1996 she came to the Andhra Pradesh Administrative Tribunal to file a O.A., around 2 O''clock and when she entered into the Ladies Chamber Ms. N. Pushpa Leela pounced on her and slippered her without provocation on her side and requested to enquire into the matter and take action against her, and he has transmitted the complaint to the Special Officer, Government Pleaders'' Office, Hyderabad for enquiry. The Special Officer, Government Pleaders'' Office has conducted an enquiry and sent a detailed report on 7-10-1996.

Basing on the Enquiry Report, the Government have examined the matter in detail and decided to terminate the services of Ms. R. Pushpa Leela, Assistant Government Pleader, Andhra Pradesh Administrative Tribunal, Hyderabad with immediate effect."

Petitioner-appellant stands condemned. She is pronounced guilty of misconduct. She thus is made to suffer the consequences of being proceeded against for misconduct in the State Bar Council and when other appointments including appointments as Judicial Officers are taken up she is a likely candidate to lose any such appointment because she has been found to have indulged in acts of misbehaviour as a Government Pleader/Assistant Government Pleader. We have reasons to suggest that all concerned have some misconceptions about the services of the Government Pleaders/Assistant Government Pleaders. Unlike appointments of Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors under Sections 24 and 25 of the Code of Criminal Procedure, appointments extended to Government Pleaders/Assistant Government Pleaders are invariably treated as engagement of a Counsel by the State in the capacity of a litigant only. Had this aspect been borne in mind and the petitioner-appellant been recognised as one such Counsel engaged by the State in the capacity of the client impugned order of termination of her service pursuant to the report of inquiry into her conduct would not have been made. It was for the State Government and its officers to know that in the capacity of an employee of the Government of the State the petitioner-appellant was holding a civil post or a post in the civil service of the State or not and whether such engagement of a Government Pleader is or is not protected under Article 311 of the Constitution of India. It was also for them to know that even otherwise if it is a termination of a person who is not a civil servant but nonetheless as an appointment which has given a status termination in the manner in which it has been made would attract Articles 14 and 16 of the Constitution of India, and the general principles flowing therefrom have to be followed only because the petitioner-appellant has been treated as a servant by the Government. We have said as above for we intend to make the State Government aware that it must have a clear understanding about the nature of service for which it has engaged Government Pleaders/Assistant Government Pleaders and guide its actions in future s Irictly in accordance with law. Once the issue in this behalf is taken care of it will be understood that conduct as an Advocate referable to the profession or even otherwise involving moral turpitude would be a matter falling within the jurisdiction of the Andhra Pradesh State Bar Council only and not within the jurisdiction of the State Government, termination of the engagement of a Government Pleader/Assistant Government Pleader if his or her work is not satisfactory or even otherwise by the client-Government of the State will be permissible and not available for judicial scrutiny if nothing in respect of the conduct of the Government Pleader/Assistant Government Pleader is brought for inquiry administratively by the authorities who are required to engage or appoint Government Pleaders/Assistant Government Pleaders. We felt disturbed how an officer of the State Government who is assigned a limited function of supervising the office of the Government Pleaders/Assistant Government Pleaders has become an officer to hold inquiry into the conduct of the Assistant Government Pleader in the instant case. A fact-finding work assigned by the learned Advocate General for the limited purpose, as urged before us, perhaps would not have made him one who were holding inquiry into the conduct of the Government Pleader/ Assistant Government Pleader otherwise, had care been taken to ensure that no Government Pleader/Assistant Government Pleader is treated as subordinate to a Special Officer who is appointed by the Government of the State to supervise the offices of the Government Pleaders and Assistant Government Pleaders. By dint of enrolment as an Advocate whether a Government Pleader or not a Government Pleader, petitioner-appellant stood as a colleague of the learned Advocate General. Her status as an officer of the Court is recognised as equal to that of the learned Advocate General with the primacy of course that is the right of predominance which the Constitution bestowed upon the Advocate General being in his favour. We are leaving, however, any further discussion in this behalf as we have confidence that the learned Advocate General shall take notice of this aspect of the matter and the statute he has achieved at the Bar would induce him to see that officers/ officials of the Government of the State are not allowed to deal with the conduct of the Government Pleaders/Assistant Government Pleaders save for the limited purpose of reporting about the affairs of the offices of the Government Pleaders /Assistant Government Pleaders.

We do not also hold that Ms. Revathi had made a genuine complaint. We do not prohibit the competent authorities to proceed to hold inquiry if necessary. We do not in any manner hold that learned Advocate General was in error when he decided that the matter would be looked into and he be appraised of the happenings which involved one of the Assistant Government Pleaders. Since however we find that the impugned order has the effect of casting a stigma upon the petitioner-appellant the same has to be nullified. It is accordingly set aside. Setting aside of the order as above however shall not amount to our directing the respondents to reinstate the petitioner- appellant as the Assistant Government Pleader. All that thus we do by quashing the impugned order is to ensure that the petitioner-appellant''s status as an Advocate is restored and not as Assistant Government Pleader. Since however the impugned order has been set aside for the reasons aforementioned, the competent authority shall be entitled to pass a fresh order either to continue or discontinue the petitioner-appellant as Assistant Government Pleader. Ordinarily all disengagements from work operate prospectively. Since however, the disengagement had already been ordered which we have set aside for the reason of the infirmities as stated above, if the facts so warrant competent authority can issue order effective retrospectively unmindful of the report of the Special Officer. In the result, the appeal is allowed.