HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 18867 OF 2012
ORDER:
Violation of principles of natural justice is assailed in this Writ Petition.
2. Petitioner is stated to have been selected and appointed as Anganwadi Worker, Anganwadi Center, Dommada-I, ICDS Project at Cherial, Warangal vide proceedings dated 01.08.2002 on payment of honorarium as fixed by the government from time to time. It is stated that she was removed from service by the 1st respondent on 20.06.2012 with immediate effect based on the news item published in local newspapers with regard to misappropriation of stocks. Learned counsel for petitioner Sri M. Balagangadharaiah submits that before issuing the impugned order, neither show cause notice was issued calling for explanation nor copy of the so-called discrete enquiry conducted by the 2nd respondent was served on her, which is in gross violation of principles of natural justice.
3. In the counter, the Deputy Director, District Women & Child Development Agency stated that petitioner was appointed as Anganwadi Worker at Dommada-I on 01.08.2002. On 2 25.02.2012, when petitioner was illegally transporting broken wheat ravva, dal, oil and condiments i.e. red chillies, mustard seeds, turmeric power in a private auto, the villagers of Dommada caught petitioner red-handedly and kept all the food items in community hall and informed the same to the 1st respondent over telephone. A news item was also published on 26.02.2012 about the illegal transportation. On 27.02.2012, the villagers gave a written complaint to the 1st respondent about the said incident, on which, the 1st respondent went Dommada-I and enquired about the same. Petitioner admitted transporting the food items. In fact, petitioner took 50 kgs. of dal, 25 kgs. of broken wheat ravva, one carton of oil and condiments from Cherial ICDS Project Office on 31.01.2012, out of the said stock, she kept 25 kgs. of dal and 16 ltrs. of oil in Anganwadi Centre and kept the remaining items in a house belonging to Anganwadi worker of Tadur-II. Subsequently, when the said Anganwadi worker sent those items in an auto to the house of petitioner on 25.02.2012, the villagers caught the said items. Immediately, the 1st respondent issued memo dated 27.02.2012 calling for her explanation, for which, she gave a reply on the even date. On 27.02.2012, the villagers of Dommada also gave a complaint to the 2nd respondent and requested to remove petitioner from the post of Anganwadi worker as she had been committing irregularities in her duty and misusing the food items. 3 It is further stated that the 2nd respondent came to Dommada-I Anganwadi Centre on 03.03.2012 and enquired into the matter. From 26.02.2012 to 04.03.2012, everyday news items were published in the local newspapers about the irregularities. The 2nd respondent therefore, prepared a note file and submitted the same to the District Collector, Warangal along with her report, on perusing the same, the District Collector endorsed to remove the petitioner. As per the said direction, the 2nd respondent issued memo dated 15.06.2012 removing petitioner with immediate effect and Smt. D. Sumalatha was placed as in-charge. The allegation of petitioner that the 1st respondent had not issued any memo calling for her explanation is absolutely false. In fact, the 1st respondent issued memo dated 27.02.2012 to petitioner calling for her explanation and petitioner also gave her reply on the same day. It is stated that as per G.O.Ms.No. 15, Women, Children (ICDS) Disabled and Senior Citizens Department, dated 04.04.2012, the appointing and removal authority is the Collector of the District. The 1st respondent cannot remove petitioner independently and after obtaining instructions from the District Collector and the 2nd respondent only, the 1st respondent issued proceedings 20.06.2012. In the first instance, the 1st respondent conducted enquiry on 27.02.2012 and the 2nd respondent conducted enquiry 4 on 03.03.2012, hence, the allegation of petitioner that no enquiry was conducted is absolutely false.
It is also submitted that on 26.04.2011, the villagers gave complaint against petitioner stating that she was selling food items meant for the beneficiaries of Anganwadi centre near her house. Since anganwadi centre and house of petitioner are side by side, the Centre, which was running in a school, was shifted to a rented building in the middle of the village. Even thereafter, petitioner continued her activities and caught hold by the villagers. According to the respondents, if she is continued as Anganwadi worker, the beneficiaries would be put to irreparable loss.
4. In response thereto, petitioner has come up with a reply stating that petitioner has given reply to the 1st respondent on 27.02.2012 informing the fact that the foodstuff could not be transported to Anganwadi Centre at Dommat-1 for want of transport facility on the date of receipt of stock. It is stated that the 2nd respondent made an enquiry into the allegations on 03.03.2012 in her absence, however, copy of the enquiry reports dated 27.02.2012 and 03.03.2012 were never communicated to her. As seen from the note submitted by the 2nd respondent in file No. A1/186/12 to the District Collector, Warangal, it is clear that villagers who made a complaint had categorically stated that they 5 did not see when the stock was shifted from house of petitioner and they noticed the stock outside the Anganwadi Centre moreover there is no shortage of food items in Anganwadi Centre at Dommata-1; functioning of petitioner is satisfactory and there is failure of inspection by the supervisory staff. Hence, it is clear that few persons in the village have made a false complaint against petitioner. It is submitted that the 2nd respondent has contended that the District Collector is the competent authority to issue orders of removal from service of petitioner as per G.O.Ms.No.15, dated 04.04.2012, but they did not file the G.O. As per the arguments of official respondents, in the said G.O., certain parameters to be adopted by the Selection Committee for selection of Anganwadi workers and helpers for awarding marks in the process of selection, were prescribed. There is nothing in the said GO. that the disciplinary action against petitioner has to be concluded with the approval of the District Collector though he is the Chairman of the Selection Committee. Therefore, it is clear that the 1st respondent did not apply her mind while passing the order impugned.
5. Learned counsel for petitioner, to substantiate his contention, relied on the judgments of the Hon'ble Apex Court in 6 State of Uttaranchal v. Kharak Singh 1, State of Uttar Pradesh v. Vinod Kumar Katheria 2, and that of this Court in State Bank of India, Hyderabad v. B.V. Bhaskar Reddy 3.
6. It is a case where, at the threshold, the impugned order can be directed to be set at naught for, In Kharak Singh's case (supra), it has been held in paragraph 15 as under:
15. From the above decisions, the following principles would emerge:
(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
(ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.
In Vinod Kumar Katheria's case (supra), it has been observed that:
1
(2008) 8 SCC 236 2 (2021) 14 SCC 668 3 2009(3) ALD 596(DB) 7
9. We have called for the records pertaining to the enquiry and the subsequent proceedings and perused the same. By perusal of the file, it is noticed that no full-fledged enquiry was held by the enquiry officer and, in our view, the order of removal of the respondent was rightly set aside by the High Court. In order to give an opportunity to the respondent delinquent and to meet the ends of justice, the matter is remanded back to the authorities for de novo inquiry from the stage of conducting enquiry, if the authorities so desire to continue the enquiry.
10. The impugned judgment [Vinod Kumar Katheria v. State of U.P., 2016 SCC OnLine All 3181] is affirmed and the order of dismissal passed by the disciplinary authority dated 7-2-2009 affirmed by the appellate authority dated 15-1-2010 and the order of Revisional Authority dated 20-6-2011 are set aside
11. In the result, the appeal is disposed of with the following observations and directions:
11.1. The order of dismissal is set aside and consequently, the appellant is directed to reinstate the respondent within a period of four weeks. However, it is made clear that the respondent shall not be entitled to arrears of salary from the date of termination till the date of reinstatement which will be subject to the order passed by the authority concerned. However, from the date of reinstatement, the respondent shall be entitled to the salary in the same pay scale as on the date of his removal from the service.
11.2. The authorities shall take a decision whether to continue the enquiry proceedings or not. If they so desire to continue the proceedings, if the earlier enquiry officer is available, the disciplinary authority shall direct him to continue the enquiry or in case, if the enquiry officer is not available, the disciplinary authority shall appoint another enquiry officer to conduct the enquiry against the respondent.
11.3. Witnesses, if any, already examined by the Department shall be recalled for fresh examination and for cross-examination by the respondent. The enquiry officer shall afford opportunity to the 8 respondent to examine himself or his own witnesses if the respondent chooses to examine any witness.
11.4. Subject to the outcome of the enquiry proceedings, the disciplinary authority shall pass appropriate orders for the interregnum period that is from the date of termination till the date of his reinstatement which shall be subject to the outcome of the proceedings of the enquiry.
11.5. It is for the authority concerned to take a decision whether to proceed against the respondent with the enquiry or not. If the authority proceeds with the enquiry, the enquiry officer shall complete the enquiry proceedings within a period of six months from the date of reinstatement of the respondent. The respondent shall render all cooperation for completion of the enquiry within the stipulated time of six months.
In B.V. Bhaskar Reddy's case (supra), the erstwhile High Court of Andhra Pradesh observed as under:
" Thus, on a careful reading of the above judgments of the Hon'ble Supreme Court, the following propositions would emerge:
1) When the Inquiry Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the inquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee on the charges leveled against him. That right is a part of the employee's right to defend himself against the charges leveled against him.
2) Non-supply of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and it is a breach of the principles of natural justice.
3) If the disciplinary authority disagrees with the findings of the enquiry officer on any article of charge, then it must, before recording its findings on such a charge, record its tentative reasons for such disagreement and give opportunity to the delinquent employee to represent before it.
4) Even if the opportunity of hearing was not specifically provided by rules made under Article 309 of the Constitution, the disciplinary authority should, of its own, provide such an opportunity.
5) The disciplinary authority can, after hearing the delinquent employee on such findings of the enquiry officer or the disagreement recorded 9 by it on all or some of the charges levelled against the delinquent employee, arrive at a final finding of guilt.
6) Thereafter, the employee should be served with a notice relating to the punishment proposed."
7. In this case, the 2nd respondent made discreet enquiry into the news item and submitted a note to the District Collector, Warangal. Based on the note orders, the 2nd respondent issued a memo to the 1st respondent to remove petitioner from service. Accordingly, the 1st respondent issued orders. It appears from the record, the impugned order was not preceded by show cause notice giving opportunity to petitioner to explain her defence. Further, report of the enquiry said to have been conducted by the 2nd respondent was not communicated to her. It is very well-laid legal principle that before an employee is visited with the punishment, show cause notice has to be issued, departmental enquiry should be conducted in the first instance and in presence of charged employee; a copy of enquiry report along with material relied on should be furnished to charged employee, so as to enable him to defend his/her case. In this case, admittedly, the said procedure was not followed by the respondents which is utter violation of the principles of natural justice.
8. On facts also, as seen from the note submitted by the 2nd respondent to the District Collector, Warangal, it is clear 10 that the villagers who made a complaint have categorically stated that they did not see when the stock was shifted from the house of petitioner, they noticed the stock outside the Anganwadi Centre and there is no shortage of food items in that Centre.
9. In the light of the well-settled legal precedents and also in the light of the factual matrix of this case, this Court is not inclined to delve deep into the matter. Suffice to say that the disciplinary authority has not given any opportunity before coming to the conclusion on the charge, hence, the employee did not get a chance to convince the disciplinary authority. The order impugned is therefore, liable to be set aside and petitioner is entitled for reinstatement. Learned counsel for petitioner fairly submits that petitioner may be granted at least 50% of backwages, as she was not employed elsewhere during the interregnum and she is in penury, but the same was opposed by the counsel for the respondents. However, to strike a balance of interests of both the parties, this Court deems it proper to award backwages at 40%.
10. The Writ Petition is accordingly, allowed setting aside the proceedings No. A/43/2012, dated 20.06.2012 of the 1st respondent. Consequently, the respondents are directed to reinstate the petitioner into service with backwages at 40% within 11 eight weeks from the date of receipt of a copy of this order. No costs.
11. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 31st October 2023 ksld