THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION NOs.9453 AND 8154 OF 2011 COMMON ORDER: W.P.No.9453 of 2011 is filed seeking to issue writ of mandamus declaring the notice, dated 25-03-2011 terminating the services of the petitioner without assigning any reasons and without calling for explanation as illegal and arbitrary and violative of Article 14 and 16 of Constitution of India besides contrary to the provisions of the Andhra Pradesh Shops and Establishments Act, 1988 (for short ‘the Act’) and consequently set aside the same and further direct the respondents to reinstate the petitioner in the post of Operational Executive. W.P.No.8154 of 2011 is filed seeking to issue writ of mandamus declaring the action of the 4th respondent in harassing the petitioner by transferring her from Visakhapatnam to Hyderabad without there being any reason or issuing any notice as illegal and arbitrary and violative of Article 14 and 16 of Constitution of India and consequently direct the respondents to continue the service of the petitioner in Visakhapatnam 2. The 4th respondent institution is working with partnership of State for providing Emergency Medical Services to the public. The petitioner was initially appointed as Associate (Communication Officer) on 24-05-2007 in 4th respondent establishment at Hyderabad office and subsequently got promotion to the post of Assistant Partner Office. At the time of joining, she got married and blessed with a daughter and all are staying at Visakhapatnam. For the purpose of job, she came down to Hyderabad and staying in hostel. After three years, she requested the management for her transfer and the management accepted the same on the condition that she has to perform duties of Operation Executive in Visakhapatnam. After her consent, she was transferred to Visakhapatnam. She used to conduct night visits to ensure that ambulances are parked in the stipulated places to attend emergency calls. During her inspection, she found that some drivers kept the vehicles at their houses and some drivers are in drunken stage and some ambulances are being misused. Against all such drivers, action was initiated, called for their explanations and warned them. On 09-03-2011, 4th respondent orally informed her that she was transferred to Hyderabad stating that there are complaints of harassment from Ambulance Drivers without issuing any orders. While so, on 30-03-2011 the 5th respondent served a copy of termination notice, dated 25-03-2011 issued by 6th respondent terminating her service. The said notice indicates that last working day shall be 24-05-2011 and she was advised to contact the concerned officials for speedy final settlement of accounts and PF benefits. The impugned notice does not indicate any reason for terminating her services. Before issuing termination order, no notice was issued calling for her explanation nor conducting any enquiry. The State has allotted 95% of public money to the 4th respondent for the purpose of operational expenditure which includes salaries of operational staff for and appointed a nodal officer to monitor the functions of the society. During the course of her employment in the institution, she was supplied with a copy of MOU of institution with Government enabling to give training to the trainees in accordance with the consent of EMRI. The terms of MOU establishes that the 4th respondent is financially and functionally controlled by the State and as such, 4th respondent being funded by public money and functionally controlled by State, falls within the definition of agent of State. Therefore, 4th respondent is agent of the State falls within the meaning of ‘other authorities’ stipulated under Article 12 of the Constitution of India. The 4th respondent is a society registered under the provisions of Registration of Societies Act and it is governed by the provisions of Act. Section 47 of the Act obligates that no employer shall without any reasonable cause terminate the services of an employee. The impugned notice issued by 6th respondent does not disclose any reasons for her termination. Hence, the writ petition. 3. The respondents filed counter affidavit denying the averments made in the writ petitions. It is stated that the 4th respondent-GVK Emergency Management and Research Institute (for short ‘GVK EMRI’) is necessary for better appreciation of facts. The 4th respondent is a non-Government and a non-profit organization registered under the Societies Registration Act. GVK EMRI has been providing comprehensive emergency response services covering Medical, Police and Fire Services since August, 2005 effectively in the State of Andhra Pradesh. It established partnerships with many international organizations and also partnership with hospitals across the country for providing 24 hours free care to the patients brought in the ambulance of GVK EMRI. These services were neither being offered by the Government or any non-government organization prior to GVK EMRI. The Government of A.P. entered into public- private partnership with GVK EMRI and under the said MOU, the Government of A.P. provided 582 ambulances. Though the Government of A.P. is providing financial support to GVK EMRI for extending emergency response services throughout the State, it has chosen not to interfere in the management/administration of GVK EMRI and hence, the Government does not have any over- whelming control over the working of the system. The Government provided funds for purchase and maintenance of ambulances. GVK EMRI is not a ‘State’ within the meaning of Article 12 of the Constitution of India. From the time the petitioner joined as OE Vizag, there were several allegations of misuse of office facilities, harassment of subordinates and inefficient working of the petitioner. On several occasions, she was reprimanded and advised to amend her behaviour, however she has not improved her working, but on the contrary she has started taking vengeance on subordinates having complained against her. In spite of several warnings and advice, she had failed to improve her work. Ultimately, the organization having no other alternative had to terminate her services keeping the larger interest of the organization in mind. Subsequent to her termination, she filed an application before the Joint Commissioner, Labour Department, Vizag, who sought explanation from the respondents, for which the respondents replied. The decision of the Joint Commissioner is pending. The petitioner suppressing the material facts, approached this Court with unclean hands. The service conditions of the petitioner are governed by the terms of service agreement according to which, her services were terminated. Hence, they pray to dismiss the writ petitions. 4. Learned counsel appearing for the petitioner contended that by virtue of MOU between the Government of A.P. with EMRI, which is under the control of State of A.P, it is the State within the meaning of Article 12 of the Constitution of India, that under Section 47 of the Act, no employer shall without any reasonable cause terminate the services of an employee, that no enquiry was conducted and no notice was given and no reasons were furnished for termination of services of the petitioner, that the operational costs of EMRI will be borne up to 95% by the State of A.P. and therefore, the order is illegal. 5. On the other hand, learned standing counsel appearing for the respondents contended that the 4th respondent is not a ‘State’ or the instrumentality of the State, but the respondents are only outsourcing agency for the Government, that the contract of employment is governed by the appointment order which clearly go to show that an employee can be terminable after confirmation by giving one month’s notice, that the present impugned notice was given prior to two months of termination and there is substantial compliance of principles of natural justice and hence, there are no grounds to interfere with the impugned order. 6. Whether the 4th respondent institute is a ‘State’ or not is governed by the judgment of this Court in W.P.No.10494 of 2009, dated 11-11-2009, wherein it was held thus: “Thus, it is clear that EMRI is neither a State nor an Agency of the State within the meaning of Article 12 of the Constitution of India. Consequently, it is not open to the petitioner to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.” Challenging the said order, Writ Appeal was filed and the same was dismissed as withdrawn. Therefore, this Court cannot take a different view than the one taken by a learned single Judge of this Court. 7. Coming to the termination aspect, learned counsel for the petitioner placed reliance under Section 47 of the Act, which reads thus: “No employer shall, without a reasonable cause, terminate the service of an employee who has been in his employment continuously for a period of not less than six months without giving such employee at least one month’s notice in writing or wages in lieu thereof and in respect of an employee who has been in his employment continuously for the period of not less than one year, a service compensation amounting to fifteen days average wages for each year of continuous employment.” The contract inter alia provides service conditions of the petitioner as per the terms and conditions of the employment, dated 24-05-2007, which is filed by the petitioner would go to show that services of the petitioner are governed by the rules/standing orders as may be made from time to time. Further the services of the petitioner can be determined by either party, at any time, during probation without any prior notice. Upon confirmation, one month’s written notice is required to be given or by payment of one month’s gross salary inclusive of allowances, in lieu of notice. Therefore, the petitioner cannot turn round and say that she cannot be terminated without giving any reasonable opportunity to her. The contract of employment clearly stipulates that one month’s written notice is required to be given and that procedure has to be followed by the 4th respondent. It is clearly stated in the notice of termination of services, dated 25-03-2011 that the last working day shall be 24-05-2011 i.e., nearly two months notice was given. Therefore, that is proper compliance in terms of the appointment order. Hence, the question of violation of principles of natural justice does not arise. The contract of employment specifically stipulates the manner of termination of service with a specific notice. Therefore, there are no grounds to interfere with the impugned order. 8. Accordingly, W.P.9453 of 2011 is dismissed. However, this order will not preclude the petitioner in approaching the competent authority under the Act and on such approach, the competent authority shall dispose of the application in accordance with law uninfluenced by any of the observations made in these writ petitions. No costs. 9. In view of the fact that the petitioner was already terminated from service, W.P.8154 of 2011 is dismissed as infructuous. No costs. ---------------------- K.C.BHANU, J. DATED: 18-07-2011 Hsd[