Madhya Pradesh High Court

Smt. Pratima Tripathi vs The State Of Madhya Pradesh on 26 June, 2025

         NEUTRAL CITATION NO. 2025:MPHC-JBP:27942




                                                             1                             WP-22507-2021
                            IN        THE    HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                        BEFORE
                                             HON'BLE SHRI JUSTICE VIVEK JAIN
                                                   ON THE 26th OF JUNE, 2025
                                               WRIT PETITION No. 22507 of 2021
                                                SMT. PRATIMA TRIPATHI
                                                        Versus
                                      THE STATE OF MADHYA PRADESH AND OTHERS
                         Appearance:
                                 Shri Dileep Kumar Pandey - Advocate for the petitioner.

                                 Shri V.P. Tiwari Government Advocate for the respondent-State.

                                                                 ORDER

The present petition has been filed challenging the order Annexure P/12 dated 02.09.2021 whereby the second appeal preferred by the petitioner has been rejected vide Annexure P/12.

2. Learned counsel for the petitioner submits that the petitioner was working on the post of Aaganwadi Worker in the year 2009. The services of the petitioner were governed by circular dated 10.07.2007. Without

conducting any enquiry the petitioner was removed from service vide order Annexure P/5 dated 02.09.2014 by the Project Officer against which the petitioner filed appeal and the appeal was dismissed by the Additional Collector vide order Annexure P/7 dated 15.02.2017. Thereafter, upon filing second appeal, the Additional Commissioner allowed the same vide order Annexure P/9 dated 27.03.2019 and the petitioner stood reinstated in service.

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2 WP-22507-2021

3. Thereafter, the respondent No. 5 who is subsequent appointee to the post after termination of the services of the petitioner filed W.P. No. 18154/2019 wherein this Court remanded the matter back to the Additional Commissioner for decision afresh. This was vide order dated 08.02.2021 passed in W.P. No. 18154/2019. In compliance of the said order the Additional Commissioner has now rejected the appeal vide order dated 02.09.2021 which is challenged as Annexure P/12.

4. It was contended by the learned counsel for the petitioner that since the allegations against the petitioner were purely in the realm of facts, therefore, the departmental enquiry or any substantive fact finding enquiry was required to be undertaken against the petitioner and he could not

condemned to be dismissed from service without any appropriate enquiry and therefore, the order is bad in law.

5. Reliance is placed on judgment of coordinate Bench in W.P. No. 619/2013 and decision of Division Bench in the case of State of M.P. Vs. Nirmala 2022 (2) MPLJ 678.

6. Per contra, it is contended by learned counsel for the State that the termination of the services of the petitioner was proper because the petitioner was repeatedly found absent from duties and on inspection carried out on 14.09.2013, 26.09.2013, 18.09.2013, 18.12.2013, 14.12.2013, 24.12.2013 and 02.08.2014, the petitioner was found continuously absent for which show cause notices were issued and replied by her as well. She alleged to be on maternity leave of six months and returned on 07.07.2014. However, even in

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3 WP-22507-2021 the inspection dated 02.08.2014 she was found absent. Therefore, it was clear that she was repeatedly absent and once it is a case of long absence, the obligation is on the petitioner to explain her absence from duties. Only if the petitioner replied raising disputed questions of facts, then any regular enquiry would have been necessitated.

7. Heard.

8. The services of the petitioner were terminated by the Project Officer vide order Annexure P/5 dated 02.09.2014. In the said order it has been mentioned that the petitioner has been found absent from duties on 10.11.2012, 14.08.2013, 16.08.2013, 18.09.2013, 24.12.2013 and 02.08.2014. It was mentioned that for each instance of absence she was issued show cause notice but either the reply contained any plain excuses or she did not reply at all. The order impugned before this Court Annexure P/12 passed by the Additional Commissioner in second appeal categorically mentions that on 16.11.2012 show-cause notice was given to the petitioner which was replied on 13.12.2012 and produced medical and fitness certificate. She stated that she was fit from 01.11.2012 but the authority held that there is discrepancy in dates in the fitness certificate which even does not contain signature of the petitioner.

9. So far as the contention of the petitioner being on maternity leave for six months is concerned, she relied on assertion that she was on maternity leave from 06.01.2014 to 07.07.2014, despite this she was absent on

02.08.2014 and it was found that the centre was closed since the petitioner

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4 WP-22507-2021 returned from maternity leave but did not present herself in the Aaganwadi Centre. Even the joining report dated 07.07.2014 has been presented on the Project Office dated 07.07.2014 mentioning that she has joined duties on 07.07.2014 which itself was found to be suspicious as she never reported to Anganwadi, where she was actually supposed to work.

10. The authority has further held that relating to various absences for which she stated to be sick while certificate dated 26.05.2013 issued by Government Ayurvedic Hospital was produced. The authority has noted various discrepancies and overwriting in the said certificate and it has been held that upon bare perusal of the said certificate, it is evident that said certificate is forged and fraudulent. The certificate of fitness upon return of leave from maternity leave was also found to have contained manipulation in the column of dates.

11. The authority further held that all the leave applications have been submitted to the Aaganwadi Assistant and not to the Project Officer and it was found that whenever she found absent she took pretext of having submitting application for leave to her assistant whereas looking to the good means of communication, the application could have been submitted to the Project Office physically or digitally by any means.

12. Considering the entire documents on record, the authority has held various medical certificates produced by the petitioner to be suspicious and held that the petitioner is willfully absenting from duties.

13. So far as the reliance on the Judgment of Division Bench of this

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5 WP-22507-2021 Court is concerned, the said matter related to absence of 3 days and this Court held that the punishment was shockingly disproportionate and for every minor misconduct, termination is not the proper punishment.

14. However, in the instant case, the authority has considered the documents placed on record by the petitioner in detail. She was found to be indulging in habitual absenteeism and in every inspection conducted she was found to be absent. Excuses were given for absence and medical certificates were found to be forged, manipulated and containing overwriting.

15. It is settled in law that opportunity of hearing is not an unruly horse and this Court would not mechanically set aside every order on the question of denial of opportunity of hearing. In Natwar Singh Vs. Director of Enforcement, reported in 2010 (13) SCC 255, it has been held as under :-

26 [Ed.: Para 26 corrected vide Official Corrigendum No. F.3/Ed.B.J./3/2011 dated 10-1-2011.] . Even in the application of the doctrine of fair play there must be real flexibility. There must also have been caused some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so forth. Can the courts supplement the statutory procedures with requirements over and above those specified? In order to ensure a fair hearing, courts can insist and require additional steps as long as such steps would not frustrate the apparent purpose of the legislation.

27. In Lloyd v. McMahon [1987 AC 625 : (1987) 2 WLR 821 : (1987) 1 All ER 1118 (HL)] , Lord Bridge observed: (AC pp. 702 H-703 B) "My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the

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6 WP-22507-2021 statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."

28. As Lord Reid said in Wiseman v. Borneman [1971 AC 297 : (1969) 3 WLR 706 : (1969) 3 All ER 275 (HL)] : (AC p. 308 C) "... For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose."

29. It is thus clear that the extent of applicability of the principles of natural justice depends upon the nature of inquiry, the consequences that may visit a person after such inquiry from out of the decision pursuant to such inquiry.

16. In Mohd. Sartaj Vs. State of U.P., reported in 2006 (2) SCC 315 , it was held as under :-

14. However, in S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] this Court has also observed as under: (SCC p. 395, para 24) "In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs."

18. In Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529 : 2000 SCC (L&S) 965 : AIR 2000 SC 2783] this Court considered the question whether on the facts of the case the employee can invoke the

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7 WP-22507-2021 principle of natural justice and whether it is a case where, even if notice has been given, result would not have been different and whether it could be said that no prejudice was caused to him, if on the admitted or proved facts grant of an opportunity would not have made any difference. The Court referred to the decisions rendered in M.C. Mehta v. Union of India [(1999) 6 SCC 237] , the exceptions laid down in S.L. Kapoor case [(1980) 4 SCC 379] and K.L. Tripathi v. State Bank of India [(1984) 1 SCC 43 : 1984 SCC (L&S) 62 : AIR 1984 SC 273] where it has been laid down that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) has to be proved. The Court has also placed reliance in the matter of State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364 : 1996 SCC (L&S) 717] and Rajendra Singh v. State of M.P. [(1996) 5 SCC 460] where the principle has been laid down that there must have been some real prejudice to the complainant. There is no such thing as merely technical infringement of natural justice. The Court has approved this principle and examined the case of the employee in that light. In Viveka Nand Sethi v. Chairman, J&K Bank Ltd. [(2005) 5 SCC 337 : 2005 SCC (L&S) 689] this Court has held that the principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. In another recent judgment in State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667 : JT (2006) 1 SC 19] while considering the argument that the principle of natural justice had been ignored before terminating the service of the employees and, therefore, the order terminating the service of the employees was bad in law, this Court has considered the principles of natural justice and the extent and the circumstances in which they are attracted. This Court has found in Neeraj Awasthi case [(2006) 1 SCC 667 : JT (2006) 1 SC 19] that if the services of the workmen are governed by the U.P. Industrial Disputes Act, they are protected under that law.

Rules 42 and 43 of the U.P. Industrial Disputes Rules lay down that before effecting any retrenchment the employees concerned would be entitled to notice of one month or in lieu thereof pay for one month and 15 days' wages for each completed year of service by way of compensation. If retrenchment is to be effected under the Industrial Disputes Act, the question of complying with the principles of natural justice would not arise. The principles of natural justice would be attracted only when the services of some persons are terminated by way of a punitive measure or thereby a stigma is attached. Applying this

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8 WP-22507-2021 principle, it could very well be seen that discontinuation of the service of the appellants in the present case was not as a punitive measure but they were discontinued for the reason that they were not qualified and did not possess the requisite qualifications for appointment.

17. In SBI Vs. M.J. James, reported in 2022 (2) SCC 301 , it was held as under :-

28. Traditional English law recognised and valued the rule against bias that no man shall be a judge in his own cause i.e. nemo debet esse judex in propria causa; and the obligation to hear the other or both sides as no person should be condemned unheard i.e. audi alteram partem. To these, new facets sometimes described as subsidiary rules have developed, including a duty to give reasons in support of the decision. Nevertheless, time and again the courts have emphasised that the rules of natural justice are flexible and their application depends on facts of each case as well as the statutory provision, if applicable, nature of right affected and the consequences. In A.K. Kraipak v. Union of India [A.K. Kraipak v. Union of India, (1969) 2 SCC 262] the Constitution Bench, dwelling on the role of the principles of natural justice under our Constitution, observed that as every organ of the State is controlled and regulated by the rule of law, there is a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a quasi-judicial or administrative power are those which facilitate if not ensure a just and fair decision. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of law under which the enquiry is held and the constitution of the body of persons or tribunal appointed for that purpose. When a complaint is made that a principle of natural justice has been contravened, the court must decide whether the observance of that rule was necessary for a just decision in the facts of the case.

29. Legal position on the importance to show prejudice to get relief is also required to be stated. In State Bank of Patiala v. S.K. Sharma [State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364] a Division Bench of this Court distinguished between "adequate opportunity" and "no opportunity at all" and held that the prejudice exception operates more specifically in the latter case. This judgment also speaks of procedural and substantive provisions of law embodying the principles of natural justice which, when infracted, must lead to prejudice being caused to the litigant in order to

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9 WP-22507-2021 afford him relief. The principle was expressed in the following words :

(SCC p. 389, para 32) "32. Now, coming back to the illustration given by us in the preceding paragraph, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice.

Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counterproductive exercise."

30. Earlier decision in M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (1999) 6 SCC 237] examined the expression "admitted and undisputable facts", as also divergence of legal opinion on whether it is necessary to show "slight proof" or "real likelihood of prejudice"; or legal effect of "an open and shut case", with reference to the observations in S.L. Kapoor v. Jagmohan [S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379] and elucidates in the following words : (M.C. Mehta case [M.C. Mehta v. Union of India, (1999) 6 SCC 237] , SCC pp. 245- 47, paras 22-23) "22. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of "real substance" or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed. See Malloch v. Aberdeen Corpn. [Malloch v. Aberdeen Corpn., (1971) 1 WLR 1578 (HL)] . (per Lord Reid and Lord Wilberforce), Glynn v. Keele University [Glynn v. Keele University, (1971) 1 WLR 487] , Cinnamond v. British Airports Authority [Cinnamond v. British Airports Authority, (1980) 1 WLR 582 (CA)] where such a view has been held. The latest addition to this view is R. v. Ealing Magistrates' Court, ex p Fannaran [R. v. Ealing Magistrates' court, ex p Fannaran, (1996) 8 Admn LR 351] (Admn LR at p. 358) (see de Smith, Suppl. p. 89) (1998) where Straughton, L.J. held that there must be "demonstrable beyond doubt" that the result

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10 WP-22507-2021 would have been different. Lord Woolf in Lloyd v. McMahon [Lloyd v. McMahon, 1987 AC 625 : (1987) 2 WLR 821 (HL)] (WLR at p. 862) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant [McCarthy v. Grant, 1959 NZLR 1014] however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is "real likelihood -- not certainty -- of prejudice". On the other hand, Garner Administrative Law (8th Edn., 1996, pp. 271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. Baldwin [Ridge v. Baldwin, 1964 AC 40 : (1963) 2 WLR 935 (HL)] , Megarry, J. in John v. Rees [John v. Rees, 1970 Ch 345 : (1969) 2 WLR 1294] stating that there are always "open and shut cases" and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackner, J. has said that the "useless formality theory" is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that "convenience and justice are often not on speaking terms". More recently Lord Bingham has deprecated the "useless formality" theory in R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton [R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton, 1990 IRLR 344] by giving six reasons. (See also his article "Should Public Law Remedies be Discretionary?" 1991 PL, p. 64.) A detailed and emphatic criticism of the "useless formality theory" has been made much earlier in "Natural Justice, Substance or Shadow" by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-63) contending that Malloch [Malloch v. Aberdeen Corpn., (1971) 1 WLR 1578 (HL)] and Glynn [Glynn v. Keele University, (1971) 1 WLR 487] were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the court cannot prejudge what is to be decided by the decision-making authority. de Smith (5th Edn., 1994, Paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-

30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a "real likelihood" of

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11 WP-22507-2021 success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their "discretion", refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma [State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364] , Rajendra Singh v. State of M.P. [Rajendra Singh v. State of M.P., (1996) 5 SCC 460] that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.

23. We do not propose to express any opinion on the correctness or otherwise of the "useless formality" theory and leave the matter for decision in an appropriate case, inasmuch as, in the case before us, "admitted and indisputable" facts show that grant of a writ will be in vain as pointed [S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379] out by Chinnappa Reddy, J."

31. In State of U.P. v. Sudhir Kumar Singh [State of U.P. v. Sudhir Kumar Singh, (2021) 19 SCC 706 : 2020 SCC OnLine SC 847] referring to the aforesaid cases and several other decisions of this Court, the law was crystallised as under : (SCC para 42) "42. An analysis of the aforesaid judgments thus reveals:

42.1. Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.

42.2. Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.

42.3. No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the

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12 WP-22507-2021 case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice. 42.4. In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.

42.5. The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice."

18. Therefore, in the present case, it is evident that merely not conducting regular departmental enquiry did not prejudice the petitioner at all because the authority has considered all the documents placed in defence by the petitioner in reply to show-cause notice. Her absence from duties was not disputed by her and the excuses given for absence like medical conditions etc. have been disbelieved on the ground that the certificates appears to be manipulated and contained overwriting.