Smt. Kamlesh Gurjar vs State Of MP and Ors.

Heard finally.

This petition under Article 226 of the Constitution of India has been filed seeking the following relief(s) :-

That, the present petition filed by the petitioner may kindly be allowed;

That the impugned order dated 14-7-2017 Annexure P/1, order dated 15-2-2016 Annexure P/2, and the order dated 8-5-2015 Annexure P/3 passed by the respondents may kindly be directed to be set aside and the respondents may kindly be directed to reinstate the petitioner with all consequential benefits. It may be held that the services of the petitioner were illegally terminated.

That the appointment order of the respondent no.5 Annexure P/9 may kindly be directed to set aside.

That, any other just, suitable and proper relief, which this Hon'ble Court deems fit, may also kindly be granted to the petitioner. Costs be also awarded in favor of the petitioner.

According to the petitioner, She was working on the post of Aanganwadi Worker in Aanganwadi Centre Barod, Child Development Project Raghogarh.  The respondents have issued guidelines dated 10-7-2007 regarding appointment and termination of the services of Aanganwadi Workers.

It is submitted that a show cause notice was issued to the petitioner on 30-4-2015 on the allegation that an information was received that three bags of T.H.R. which were supplied to Aanganwadi Centre Barod are being transported in an illegal manner and therefore, the same were seized by the Tahsildar Maksudangarh. It was found that the nutritious food which was to be distributed from Aanganwadi Centre Barod was being sent illegally to Guna and the statements of Conductor of the Bus also indicate the criminal breach of trust. Further at about 3 P.M., an inspection was conducted by the Project Officer, then it was found that the Aanganwadi Centre was locked. Further, it was informed by the villagers that the petitioner do not reside in the village but comes from Maksudangarh. Therefore, a show cause notice was issued as to why her services may not be terminated.

The petitioner submitted her reply and pleaded that the three bags which were seized from the Balaji Bus at 9 A.M. On 30-4-2015 doesnot belong to Aanganwadi Centre, Barod. It was further pleaded that the nutritious food was supplied to the center for the last time on 1-12-2014 which was distributed till Feb. 2015 and no nutritious food was available in the center in the month of March 2015. On 30-4-2015, the petitioner was going to Barod from Maksudangarh by Manoj Vishwakarma Tempo because, the Balaji bus had already left. She further stated that no member of her family is involved and the real culprit has been identified by the police who is the resident of Barod. She further stated that She came to the centre at 9:30 in the morning and went on house visit at 3 P.M.

Since, the reply submitted by the petitioner, could not satisfy the respondents, therefore, her services were discontinued by order dated 8-5-2015. The appeal filed by the petitioner was dismissed by order dated 15-2-2016 and the Second Appeal has been dismissed by order dated 14-7-2017.

Challenging the orders passed by the Authorities, it is submitted by the Counsel for the petitioner, that once, the petitioner had denied the allegations, then a full fledged Departmental enquiry was required which has not been done. The impugned orders are not based on any fact finding enquiry and have been passed in utter violation of principle of Natural Justice, specifically when the allegations were denied by the petitioner.

Per contra, it is submitted by the Counsel for the respondents that under the Policy, the services of an Aanganwadi Worker can be terminated after conducting an ''enquiry''. The word ''enquiry'' used in the policy does not mean that a full fledged departmental enquiry is required. It is submitted that even if the reply filed by the petitioner is not found to be satisfactory or where some of the allegations have not been denied by the petitioner, her services can be terminated.

Heard the learned Counsel for the parties.

Guidelines dated 10-7-2007 have been issued for selection and appointment on the post of Aanganwadi Worker and Asstt.s. Clause S-6-D of the policy reads as under :

1- यदि आंगनवाडी कार्यकर्ता / सहायिका द्वारा आंगनबाडी केन्द्र का संचालक नियमानुसार नही किया जाता है अथवा उनके द्वारा अपने कर्तव्यों एवं दायित्वों के निर्वहन मे लापरवाही की जाती है तो परियोजन अधिकारी / महिला एवं बाल विकास के अन्य उच्च अधिकारी द्वारा आंगनबाडी कार्यकर्ता / सहायिका को सुनवाई का अवसर देते हुए जांच मे दोषी पाये जाने पर पद से पृथक किया जा सकेगा।

Now  the  question  for  consideration  is  that  whether  the  word "Enquiry" used in clause S-6-D of the Guidelines, mean a full fledged Departmental Enquiry, or a fact finding enquiry, conducted by the officer, after affording an opportunity of hearing is sufficient.

The Supreme Court in the case of State Bank of Patiala Vs. S.K. Sharma, reported in (1996) 3 SCC 364 has held as under :-

The decisions cited above make one thing clear, viz., principles of natural justice cannot be reduced to any hard and fast formulae. As said in Russell v. Duke of Norfolk way back in 1949, these principles cannot be put in a strait-jacket. Their applicability depends upon the context and the facts and circumstances of each case. (See Mohinder Singh Gill v. Chief Election Commr.) The objective is to ensure a fair hearing, a fair deal, to the person whose rights are going to be affected. (See A.K. Roy v. Union of India and Swadeshi Cotton Mills v. Union of India.) As pointed out by this Court in A.K. Kraipak v. Union of India, the dividing line between quasi-judicial function and administrative function (affecting the rights of a party) has become quite thin and almost indistinguishable - a fact also emphasised by House of Lords in Council of Civil Service Unions v. Minister for the Civil Service where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the case, it is from the standpoint of fair hearing - applying the test of prejudice, as it may be called - that any and every complaint of violation of the rule of audi alteram partem should be examined. Indeed, there may be situations where observance of the requirement of prior notice/hearing may defeat the very proceeding - which may result in grave prejudice to public interest. It is for this reason that the rule of post-decisional hearing as a sufficient compliance with natural justice was evolved in some of the cases, e.g., Liberty Oil Mills v. Union of India. There may also be cases where the public interest or the interests of the security of State or other similar considerations may make it inadvisable to observe the rule of audi alteram partem altogether [as in the case of situations contemplated by clauses (b) and (c) of the proviso to Article 311(2)] or to disclose the material on which a particular action is being taken. There may indeed be any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries: a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between "no notice"/"no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity". To illustrate - take a case where the person is dismissed from service without hearing him altogether (as in Ridge v. Baldwin). It would be a case falling under the first category and the order of dismissal would be invalid - or void, if one chooses to use that expression ( Calvin v. Carr). But where the person is dismissed from service, say, without supplying him a copy of the enquiry officer's report (Managing Director, ECIL v. B. Karunakar) or without affording him a due opportunity of cross-examining a witness (K.L. Tripathi) it would be a case falling in the latter category - violation of a facet of the said rule of natural justice - in which case, the validity of the order has to be tested on the touchstone of prejudice, i.e., whether, all in all, the person concerned did or did not have a fair hearing. It would not be correct - in the light of the above decisions to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B. Karunakar should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not affording a proper hearing (i.e., adequate or a full hearing) or of violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice as aforesaid.

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We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):

(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/ statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.

(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under - "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.

(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.]

(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.

The Supreme Court in the case of State Vs. N.S. Gnaneswarab reported in (2013) 3 SCC 594 has held as under :-

The issue also requires to be examined on the touchstone of doctrine of prejudice. Thus, unless in a given situation, the aggrieved makes out a case of prejudice or injustice, some infraction of law would not vitiate the order/enquiry/result. In judging a question of prejudice, the court must act with a broad vision and look to the substance and not to technicalities. (Vide: Jankinath Sarangi v. State of Orissa, State of U.P. v. Shatrughan Lal, State of A.P. v. Thakkidiram Reddy and Debotosh Pal Choudhury v. Punjab National Bank.)

Therefore, it is clear that the principle of Natural Justice cannot be reduced to any particular hard and fast rule and the underlying principle is fair hearing.  The word ''enquiry'' used in clause S-6-D of the Guidelines cannot be stretched to mean that in every case, a full fledged departmental enquiry should be conducted. If the allegations are accepted or are not specifically denied, then the authorities are not required to conduct any further enquiry and can pass the order immediately. The Supreme Court in the case of  Cantonment Board v. Mohanlal, reported in (1996) 2 SCC 23 has held as under :-

The only question in this case is whether the view taken by the High Court is good in law. It is seen that the respondent in his reply had admitted that they constructed, as pointed out by the Cantonment Board in its notice dated 13-9-1974, and the previous notice. But he stated that he had done it bona fide and as he would not demolish it but requested the authority to reconsider the matter and withdraw the notice. In other words, he admitted that he had carried on illegal construction without compliance with law. So the question is whether enquiry in that behalf is required to be conducted. We are of the considered view that the High Court was not right in its conclusion that an independent enquiry requires to be held after the notice was issued and the reply thereof was given by the respondent.

It is seen that the Cantonment Board is an elected body represented by the people themselves. When opportunity was given putting on notice of illegal construction made by the respondent, reply thereof was given. The Board had considered the representation and was not inclined to accede to the request made by the respondent. Accordingly, the resolution passed by the Cantonment Board cannot be faulted as violative of the principles of natural justice.

Further, in every case of denial of allegations by the employee, it cannot be held that the Full Fledged Enquiry is required. Under the guidelines there is no procedure/provision for full fledged departmental enquiry. Further, it is clear that the post of Aanganwadi Worker is not a Civil Post and the said post has been created in terms of the Scheme. The Supreme Court in the case of State of Karnataka and others Vs. Ameerbi and others reported in (2007) 11 SCC 681 has held as under:

Anganwadi workers, however, do not carry on any function of the State. They do not hold post under a statute. Their posts are not created. Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional scheme exists. We do not think that the said decision has any application in the instant case.

Therefore, it is held that any enquiry which satisfies the principle of fair hearing is sufficient to satisfy the requirement of Clause S-6-D of the guidelines.

In the present case, show cause notice was issued on three charges which can be summarized as under :

That Take Home Ration (food item) which was required to be distributed amongst the children and pregnant and Lacted Women from the Aanganwadi Center, Barod was being transported in an illegal manner to Guna.

That at the time of inspection, the Aanganwadi Centre was found to be locked.

That the petitioner doesnot reside in the village and resides in Maksudangarh.

As per the guidelines, the Aanganwadi Worker should be the resident of the said village, and one of the allegation is that the petitioner is not residing in village Barod, but she comes from Maksudangarh. This allegation has not been denied by the petitioner, on the contrary, it has been admitted by mentioning in the reply, that the Petitioner had missed the Balaji bus, therefore, had come on a tempo from Maksudangarh.

So far as the Take Home Food which was seized by the Tahsildar is concerned, it was the stand of the petitioner, that no Take Home Food was supplied to the centre after 1-10-2014. However, the petitioner has not pointed out that whether She had raised any demand for supply of Take Home Food at point of time or not? It is the stand of the petitioner that the Take Home Food was supplied for the last time on 1-12-2014 which was distributed by the end of February, and from March onwards, there was no Take Home Food in the Centre. Thus, it has been admitted by the petitioner, that in the month of April, there was no Take Home Food in the Aanganwadi Center, Barod. The only question for consideration is that whether the Take Home Food seized by the Tahsildar was of Aanganwadi Center, Barod or not ?

The petitioner in her reply has not filed any document to show that no Take Home Food was supplied to the Aanganwadi Center, Barod. She was in possession of each and every document, and should have produced the same along with her reply, but that was not done by her. Further, according to the statement of Suresh, Conductor of the bus, three bags were loaded by the husband of the petitioner. On seizure, it was found that all the three bags were containing Take Home Food which was to be supplied to the eligible persons from Aanganwadi Center, Barod. The Aanganwadi Centers are being run for the benefit of the poor persons, and if the nutritious food, which is meant for the poorer section of the society is misappropriated, then such an act would certainly amount to misconduct.

Further, it is clear that the Take Home Food was seized at 9 A.M. and the inspection of the Aanganwadi Center, Barod was done at 3 P.M. and the center was found locked. Thus, it is clear that after the seizure of the Take Home Food which was meant for Centre, the petitioner didnot open the Aanganwadi Center, otherwise, she would have certainly filed the attendance sheet of the center to show that the center was opened by the petitioner.

Further, it appears that an application dated 4-5-2015 was given by the petitioner to the S.H.O., Police outpost Madhusudangarh, Distt. Guna. Therefore, it is clear that the police report must have been lodged, however, the petitioner has not disclosed the fact that whether any F.I.R. was lodged against her & her husband or not and if so, then what was the outcome of the same.

The Counsel for the petitioner has relied upon the judgment passed by the Supreme Court in the case of Oryx Fisheries (P) Ltd. v. Union of India, reported in (2010) 13 SCC 427 and submitted that rejection of the reply by a simple observation that it was not satisfactory indicates the non-application of mind.

As already held, the post of Aanganwadi Worker is not a Civil Post. The appointment is made under a Scheme or guideline. Therefore, the protection available to a holder of Civil Post are not available to the Aanganwadi Worker.

Considering the totality of the facts and circumstances of the case, it is held that no illegality was committed by the Authorities by terminating the services of the petitioner.

Accordingly, the petition fails and is hereby Dismissed.