Smt.M.Rajeswari,Wrng Dist vs C.D.P.O,Wrng Dist,And 2
2023 Latest Caselaw 3428 Tel

          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

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.

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

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

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

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:

(2008) 8 SCC 236

(2021) 14 SCC 668

2009(3) ALD 596(DB)

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

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

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

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

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

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