Page No.# 1/6 vs The State Of Assam And 6 Ors
2022 Latest Caselaw 2630 Gua

                                                                   Page No.# 1/6

GAHC010036962017




                        THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/5216/2017

         SMT. RINA DAS and ANR.
         W/O DIJENDRA TALUKDAR VILL- JAYSAGAR P.O. JAYSAGAR P.S.
         MUKALMUWA DIST. NALBARI, ASSAM

         2: ANOWARA KHATUN
         W/O NURBOX ALI VILL- MUKALMUWA P.O. MUKALMUWA P.S.
         MUKALMUWA DIST. NALBARI
         ASSA

         VERSUS

         THE STATE OF ASSAM and 6 ORS.
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         SOCIAL WELFARE DEPARTMENT, DISPUR, GUWAHATI-06.

         2:THE DIRECTOR

          SOCIAL WELFARE DEPARTMENT
          ASSAM
          UZANBAZAR
          GUWAHATI-1.

         3:THE DEPUTY COMMISSIONER

          NALBARI
          P.O. and P.S. NALBARI DIST. NALBARI
          ASSAM

         4:THE ADDITIONAL DEPUTY COMMISSIONER

          NALBARI
          P.O. and P.S. NALBARI DIST. NALBARI
          ASSAM
                                                                       Page No.# 2/6

            5:THE IN-CHARGE DISTRICT SOCIAL WELFARE OFFIER

             NALBARI
             P.O. and P.S. NALBARI
             DIST. NALBARI
             ASSAM

            6:THE CHILD DEVELOPMENT PROJECT OFFICER

             BARKHETRI ICDS PROJECT
             NALBARI

            7:THE BRANCH MANAGER

             STATE BANK OF INDIA
             MUKALMUWA BRANCH
             P.O. and P.S. MUKALMUWA DIST. MUKALMUWA
             ASSA

Advocate for the Petitioner   : MR.R HUSSAIN

Advocate for the Respondent : MRU SARMAR-7

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL)

Date : 01-08-2022

Heard Ms. M Bordoloi, learned counsel for the petitioners. Also heard Mr. T C Chutia, learned Additional Senior Government Advocate for the respondents in the Social Welfare Department and Deputy Commissioner and Additional Deputy Commissioner, Nalbari.

2. Office note of 12.12.2018 shows that the learned counsel has entered appearance for the respondent no. 7 i.e. the Branch Manager, State Bank of India, Mukalmuwa Branch. The records contain a vakalatnama wherein three learned counsel have entered appearance. But today, when the matter is called Page No.# 3/6

up for hearing, none appears although their names are shown in the cause list.

3. The petitioner no. 1 is an Anganwadi Worker of Jaysagar No. 1 Anganwadi Centre and the petitioner no. 2 is the Anganwadi Worker of Mukalmuwa Kujibaha (Major Supa) Anganwadi Centre under the Barkhetri ICDS Project, Mukalmuwa in the Nalbari district. Both the petitioners were appointed as Anganwadi Workers as per letter dated 07.09.2012 of the CDPO, Barkhetri ICDS Project, Mukalmuwa. The petitioners are aggrieved by the order dated 01.06.2017 of the CDPO, Barkhetri ICDS Project, Mukalmuwa by which they were removed from their services apparently pursuant to an order no. DSW(ICDS) G/SNCP/21/2017/6 dated 24.04.2017 of the Director of Social Welfare.

4. We have perused the order dated 24.04.2017 of the Director of Social Welfare Department which is available as Annexure-7, page-33 to the writ petition. As per the order, there is an allegation against the two writ petitioners that they diversified certain funds from the official accounts of the Anganwadi Workers to their personal accounts, out of which, in respect of Jaysagar No. 1 Anganwadi Centre, an amount of Rs.5600/- (Rupees Five Thousand Six Hundred) was withdrawn as per the cheque no. 101809 from the joint account no. 33895306309 to the personal account no. 32597626609 of the petitioner no.

1. Similarly, in respect of Mukalmua Kujibaha Major Supa Anganwadi Worker Centre, an amount of Rs.8000/- (Rupees Eight Thousand) was withdrawn from the official account No. 33895315778 to the personal account no. 20050611716 which was of the petitioner no. 2.

5. The funds contained in the two joint accounts were for the purpose of providing Take Home Ration under the Supplementary Nutrition Programme which was implemented by the Anganwadi Centres. It is stated that in respect Page No.# 4/6

of such transfer of funds, Mukalmuwa PS Case No. 21/2017 had been registered against the Branch Manager of State Bank of India, Mukalmuwa Branch. As there was a transfer of public funds from the official accounts to the personal accounts of the petitioners, the order of the Director dated 24.04.2017 had been passed providing that the petitioners be removed from services and consequent thereof, the order impugned dated 01.06.2017 of the CDPO, Barkhetri ICDS Project had been passed. Reference is also made to an enquiry report dated 11.01.2017 of the Additional Deputy Commissioner, Nalbari. The said enquiry report is pursuant to an enquiry conducted at the behest of the Deputy Commissioner, Nalbari as regards the transfer of the aforesaid funds from the official accounts to the personal accounts of the petitioners.

6. In the enquiry report, it had been reflected that the transfer of funds was done at the advice of Sri Prasanta Kumar Sarma, Branch Manager, State Bank of India inasmuch as the Branch Manager thought it appropriate that it would be easier for the bank to operate a personal account rather than operating it through a joint official account. Neither the enquiry report of the Additional Deputy Commissioner dated 11.01.2017 as well as the order of the Director of Social Welfare Department dated 24.04.2017 contain any material or any allegation that the funds transferred were misused by the petitioners for their own personal gain. In absence of such allegation, it has to be understood that although technically the funds were incorrectly transferred to their personal accounts but the same were utilised by the petitioners for the purpose for which the funds were provided rather than using it for their own personal gain and that to at the behest of the Branch Manager of the State Bank of India under whom the petitioners were required to operate their accounts.

7. Although it is an engagement/ appointment of the petitioners as Page No.# 5/6

Anganwadi Workers but the petitioners were holding civil posts under the State authorities and from such point of view, the provisions of Article 311 of the Constitution of India would also be attracted in the present case. The manner in which the petitioners were removed from service by the order dated 24.04.2017 of the Director and the consequential order dated 01.06.2017 of the CDPO, Barkhetri ICDS Project, the compliance of the requirement of the Article 311 does not appear to have been complied with.

8. After hearing the learned counsel for the parties and upon perusal of the records, it firstly appears that there may have been a procedural aberration by the petitioners in transferring the funds to their personal accounts which may per-se be an act impermissible under the law. But at the same time, the mitigating circumstance was that it done at the behest of the Branch Manager, who required it to be done to facilitate the operating of the accounts and secondly, although the amounts may have been transferred to their personal accounts, but the same was not been misused by the petitioners and was utilised for the due purpose it was meant for, which would also be a relevant factor before the decision to remove the petitioners could have been taken. Secondly, as already indicated, no show-cause notice of any kind was given to the petitioners before affecting the orders of removal which again is an aberration of the procedure required to be followed under Article 311 of the Constitution of India.

9. Considering both the aspects, the two orders dated 24.04.2017 of the Director recommending the removal of the petitioners and the consequential order dated 01.06.2017 of the CDPO, Barkhetri ICDS Project, Mukalmuwa are set aside. The matter is remanded back to the authorities, if so advised, to proceed against the petitioners by following the due procedure of law and also Page No.# 6/6

taking into account the aspect that the amounts that were transferred to the personal accounts were not misused or mis-utilised, but were utilised for the official purpose for which it was meant and secondly, it was done at the behest of the Branch Manager, State Bank of India, Mukalmua.

10. We have taken note that there was an interim order dated 30.08.2017 allowing the petitioners to continue in service. The interim order stands merged with the final order passed today.

11. All such FIRs that may have been lodged in the aforesaid circumstance against any official, if also against the present petitioners, are not interfered in this writ petition. The same be proceeded to be brought to its logical end as per law.

Writ petition stands disposed of in the above terms.

JUDGE

Comparing Assistant