THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.18251 of 2010 ORDER: The petitioner was engaged as NMR in Sri Durga Malleshwara Swamyvarla Devasthanam, in the year 2003. When his services were sought to be dispensed with, he approached this Court by filing W.P.No.19696 of 2004, and thereafter, W.P.No.2247 of 2005. This Court disposed of the writ petition, directing that it shall be open to the respondents to give reasonable opportunity to the petitioner before his services are dispensed with. The Executive Officer of the Devasthanam, the 2nd respondent herein, passed an order dated 08- 07-2010, dispensing with the services of the petitioner. The same is challenged in this writ petition. The petitioner contends that he applied for leave on 13-05-2010 on account of ill-health and since he did not recover, he requested the Superintendent of the office, to extend the leave, but on refusal of the request, he attended the duties at 4:30 a.m. It is stated that a show cause notice was issued on 14-05-2010, alleging that he was found asleep at around 7:00 a.m., and that a detailed explanation was submitted within the stipulated time. The order is said to be vindictive and contrary to law. The 2nd respondent filed a detailed counter-affidavit. It is stated that the petitioner was found asleep, while on duty, and thereby, the pilgrims were put to serious hardship. It is stated that in terms of the orders passed by this Court in the writ petitions filed by the petitioner, earlier, show cause notice was issued, and the impugned order was passed, after considering the explanation submitted by the petitioner. Sri W.B. Srinivas, learned counsel for the petitioner submits that the only lapse attributed to the petitioner is that he was found sleeping, while on duty, and the fact that he was ill, and was discharging duties from 4:30 a.m., early in the morning; was not considered at all. He contends that the very reference to the orders passed by this Court in the writ petitions filed by the petitioner discloses that the minor lapse was used as a pretext, for imposing serious punishment of removal from service. Learned Government Pleader for Endowments, appearing for the 1st respondent, and Sri V.T.M. Prasad, learned counsel for the 2nd respondent, on the other hand, submit that the impugned order was preceded by a show cause notice, and the 2nd respondent has taken into account, the explanation submitted by the petitioner. They contend that the writ petition is not maintainable, and if the petitioner feels aggrieved by the order of termination, he has to approach the forum, prescribed under law. The prohibition imposed by the Government, from time to time, against appointment of employees in various institutions has only given rise to engagement of persons on ad hoc or temporary basis, even for discharge of functions of regular posts. Once the cadre of an institution is fixed, there should not be any difficulty in appointing the incumbents. In case the establishment becomes burdensome to the institution, the cadre can be reduced in strength. Ad hoc arrangements are prone to be detrimental to the institutions, in many respects. The engagement of NMRs for years together, is one such instance. The petitioner was engaged as NMR, in the year 2003. However, he was being entrusted the functions of any other regular staff. If a regular employee resorts to any acts of indiscipline, charge- sheet is issued, enquiry is conducted and commensurate punishment is imposed. However in the case of NMRs, while some employers straightaway passed orders dispensing with their services, orally, or in writing, without furnishing any reasons, others followed the procedure meant for regular employees. In many cases, Courts intervened and made it obligatory for the employers to issue notice before an NMR is terminated from service. The petitioner approached this Court on two earlier occasions, complaining of removal, without any written order. Writ petitions were disposed of, directing the 2nd respondent to continue the petitioner in service, but leaving it open to it, to issue show cause notice and proceed further, in accordance with law. It is a matter of record that the petitioner applied for leave on 13-05-2010, and he was granted leave for that day. There is some uncertainty as to whether the petitioner applied for leave for the next day also. His version is that he reported to duty at 4:30 a.m., on denial of extension of leave. A show cause notice was issued to him by the 2nd respondent, on 14-05-2010, alleging that he was found sleeping at 7:00 a.m., on 14-05-2010. The show cause notice reads as under: “The Honourable High Court in its order cited directed to give reasonable opportunity before dispensing with service. Sri G. Puneeth Kumar daily wage worker is found guilty of sleeping in the temple while on duty at 7.00 AM on 14-5-2010 and he gave statement to that effect and he was red-handedly caught by the undersigned and his photos in sleeping pose has been taken. He is therefore found irregular and irresponsible in discharging his duties and also admitted about his ill health. He is therefore requested to show cause within 7 days as to why his services should not be discontinued”. Firstly, there was no necessity to refer to the orders of this Court. Further, the 2nd respondent has already taken the view, that the petitioner has been irregular and irresponsible in discharging the duties. If that were to be so, there was no necessity to issue show cause notice, at all. It is needless to mention that, a show cause notice must only mention the allegation. The disciplinary authority can express its views, only after considering the explanation. If the conclusion is arrived at straightaway, the issuance of show cause notice becomes perfunctory. The petitioner submitted his explanation, furnishing his version of the matter. The 2nd respondent passed the impugned order on 08-07-2010. Half of the order was devoted to reference to the writ petitions filed by the petitioner, earlier. The fact that the 2nd respondent formed opinion, even before issuance of show cause notice, is evident from the impugned order. The explanation of the petitioner was referred to, in detail. However, no views were expressed on it, and straightaway an observation was made, to the effect that the functioning of the petitioner and his explanation are far from satisfactory. The exercise undertaken by the 2nd respondent is untenable in law. The show cause notice was issued with a predetermined mind. The explanation offered by the petitioner was not considered in its true spirit. If the 2nd respondent suspected the truthfulness of the version of the petitioner, presented in the explanation; he ought to have ascertained the facts from the Superintendent. Hence, the writ petition is allowed and the impugned order is set aside, and it is left open to the 2nd respondent to issue fresh notice to the petitioner, stating the allegations, and not the findings. If such a show cause notice is issued, it shall be open to the petitioner to submit the explanation. The 2nd respondent shall consider the same, with reference to the relevant facts, and pass appropriate orders, in accordance with law. There shall be no order as to costs. ________________________ L. NARASIMHA REDDY, J. Dt.15-11-2010. KO