Chattisgarh High Court
Smt. Shashilata Dubey vs State Of Chhattisgarh on 4 November, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 238 of 2019
Smt. Shashilata Dubey W/o Shri Hariom Dubey Aged About 36 Years
Terminated Anganwadi Worker, Centre Bairdandi Podi (Bachra), R/o
Village Podi, Bachara, District Koriya Chhattisgarh.
---- Appellant
Versus
1. State of Chhattisgarh Through Secretary, Department of Dau
Kalyan Singh Bhawan, Raipur Chhattisgarh.
2. The Deputy Director Mahila Bal Vikas, Raipur Chhattisgarh.
3. The District Collector District Koriya Chhattisgarh.
4. The District Mahila Bal Vikas Adhikari District Koriya Chhattisgarh.
5. The Chief Executive Officer Janpad Panchayat, Khadgawan,
District - Koriya Chhattisgarh.
6. The Project Officer Child Development Project Khadgawan, District
Koriya Chhattisgarh.
---- Respondents
(Cause-title taken from Case Information System)
For Appellant : Mr. Sushil Dubey, Advocate.
For Respondent Nos.1 to 4 & 6 : Mr. H.S. Ahluwalia, Deputy A.G.
For Respondent No. 5 : Mr. Dharmesh Shrivastava, Advocate
Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri Sanjay Agrawal, Judge
Judgment on Board
Per Arup Kumar Goswami, Chief Justice
04.11.2022
Heard Sushil Dubey, learned counsel for the appellant. Also heard
Mr. H.S. Ahluwalia, learned Deputy Advocate General, appearing for the
respondent Nos. 1 to 4 & 6 and Mr. Dharmesh Shrivastava, learned
counsel, appearing for respondent No.5.
2. This writ appeal is presented against an order dated 20.02.2019
passed by the learned Single Judge in WP No.867 of 2004, whereby the
learned Single Judge dismissed the writ petition preferred by the
appellant.
3. The petitioner was appointed as an Anganbadi Worker by an order
dated 31.03.1998 by the Chief Executive Officer, Janpad Panchayat,
Khadgawan i.e. respondent No.5. By an order dated 20.02.2004, she
was terminated from the post of Anganbadi Worker and this order was
put to challenge in the writ petition.
4. In the writ petition, primarily, two contentions were advanced : that
the order was passed without issuing any show-cause notice and thereby
it militated against the principles of natural justice and secondly, there
was no allegation by the Gram Sabha and there was no recommendation
from the Women and Child Development Committee for the action
proposed.
5. The learned Single Judge, with regard to the contentions advanced
recorded as follows :
"5. Subsequently, the petitioner has been again
issued with a show cause notice. The record shows that
the first show cause notice was issued on 08.08.1999
and the subsequent show cause notice was issued on
17.11.2000. Along with the reply, the respondents have
also submitted the inspection report in respect of the
periodical inspection that was conducted at the
Anganbadi Centre, Bairdand, where the petitioner was
appointed as an Anganbadi worker. In the inspection
report also, there has been large number of
irregularities detected and moreover there is mass
complaint made against the petitioner by the villagers in
general holding that the petitioner was unauthorizedly
absent on regular basis and most of the time, the
Anganbadi Centre is found closed.
6. The respondents have also enclosed along with
the reply, the inspection sheet as well as the statement
recorded of the villagers during the course of inspection.
Subsequently, the petitioner was again issued with a
second show cause notice on 28.01.2004 to which also
the petitioner did not submit any sought of reply.
7. xxx xxx xxx
8. Perusal of the record would show that subsequent
to the second show cause notice issued on 28.01.2004,
there was no response from the petitioner, the matter
was placed before the Women and Child Development
Committee, Janpad Panchayat, Khadgawan on
04.02.2004. The said Committee on due consideration
of the entire facts and circumstances of the case,
particularly taking note of the allegations and the
evidence, which were collected during the course of
investigation, the Women and Child Development
Committee, Janpad Panchayat, Khadgawan finally in its
meeting dated 04.02.2004 passed a resolution for
terminating the services of the petitioner and further
ordered that appropriate orders in this regard be passed
and based upon which the Project Officer has passed
the impugned order Annexure P/1 on 20.02.2004."
6. In the reply affidavit, it was categorically stated by respondent
Nos.1 to 4 and 6 that a meeting of the Women and Child Development
Committee of Janpad Panchayat, Khadagawan was held on 04.02.2004
wherein it was resolved vide Resolution No.2 to remove the petitioner
from the post and thereafter, in the General Body meeting of the Janpad
Panchayat, Khadagawan held on 13.02.2004, vide Resolution No.5(2),
the resolution passed by the Women and Child Development Committee,
Janpad Panchayat, Khadagawan in its meeting dated 04.02.2002 was
confirmed.
7. In arriving at the conclusion, the learned Single Judge also took
note of the fact that though elaborate reply-affidavit was filed by the
State-respondents in July, 2004, in the interregnum period of 15 years, no
rejoinder-affidavit, rebutting the contentions raised in the writ petition, was
filed by the writ petitioner.
8. Mr. Dubey submits that point urged by him that the impugned order
was passed by an authority, who was not competent, though argued was
not dealt with by the learned Single Judge and he reiterates that the
petitioner did not receive the notice in question and therefore, there is
procedural irregularity in terminating the petitioner.
9. So far as the first contention advanced, while it is correct that such
a contention was advanced, the learned Single Judge did not record any
conclusion in this regard. It has to be borne in mind that such a
contention was neither pleaded in the writ petition nor by way of any
supplementary pleadings though the writ petition was pending disposal
for more than 15 years. There is an element of factual foundation
involved in determining whether an officer has got competency or not for
passing an order of termination. Only because of the fact that the initial
order of appointment was passed by the Chief Executive Officer and the
order of termination was passed by the Project Officer, Child
Development Project, Khadgawan, the same does not necessarily lead to
the conclusion that the Project Officer, Child Development Project,
Khadgawan was incompetent to pass the order of termination. It is also to
be kept in mind that the post of Anganbadi Worker is not a post in
Government service, but such appointment is made subject to payment
of honorarium.
10. In the case of Naseem Bano (Smt) Vs. State of U.P. and Others,
reported in 1993 Supp (4) SCC 46, the Hon'ble Supreme Court at
paragraph 9, observed at follows :
"9. The aforesaid reply would show that on behalf of
respondents Nos. 1 to 4, it was not disputed that 40%
posts which have to be filled up by promotion had not
been filled up and the denial of promotion to the appellant
was justified on the sole ground that she was not
qualified to be promoted to L.T. grade. This shows that in
the pleadings before the High Court, there was no
contents on the question that the post of L.T. grade which
was sanctioned on August 29,1977 was required to be
filled up by promotion for the reason that 40% posts had
not been so filled. Even though there was no contest on
this question the High Court has gone into it and has held
that the appellant has failed to establish her case that at
the time of the appointment of respondent No. 6 by direct
recruitment 40% of the total number of posts in the
college were not filled up by promotion as prescribed by
Regulation 5(2)(a) of the Regulations. Since no dispute
was raised on behalf of respondents Nos. 1 to 4 in their
reply to the averments made by the appellant in the writ
petition that 40% of the total number of posts had not
been filled by promotion inasmuch as the said averments
had not been controverted the High Court should have
proceeded on the basis that the said averments had
been admitted by respondents." (emphasis supplied by
us).
11. The decision in Naseem Bano (Smt.) (Supra) lays down that when
factual averments are not controverted, it is incumbent for the Court to
proceed on the basis that the said averments had been admitted by the
other party.
12. Present is a reverse case. A clear and categorical stand was taken
by the respondent Nos. 1 to 4 and 6 denying the factual contentions
raised by the petitioner. As the petitioner did not contest the same by
filing rejoinder-affidavit, it has to be held in view of decision in Naseem
Bano (Smt.) (supra) that the petitioner has tacitly admitted such stand of
the respondents. Thus, the plea taken by the petitioner regarding
violation of principles of natural justice has no legs to stand. Therefore,
the second contention advanced by Mr. Dubey is without any merit.
13. For the reasons aforesaid, we find no good ground to interfere with
the order of the learned Single Judge and resultantly, the writ appeal fails
and is dismissed.
Sd/- Sd/-
(Arup Kumar Goswami) (Sanjay Agrawal)
Chief Justice Judge
Chandra
