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2015 DIGILAW 3650 (MAD)

M. Malliga v. District Collector

2015-11-24

D.HARIPARANTHAMAN

body2015
ORDER : D. Hariparanthaman, J. The petitioner was working as an Anganwadi worker from 15.12.2006 onwards. She was on medical leave from 14.04.2015 till 11.10.2015. While so, the impugned order was passed by the first respondent in Se.Mu.Na.Ka. No. 3588 A1/2015 dated 27.10.2015, terminating the petitioner from service on the ground that the petitioner did not turn up to duty after 11.10.2015 when her leave came to end. It is also stated that though she was directed to join duty, she did not join duty. The impugned order refers to G.O.Ms. No. 4, Social Welfare and Noon Meal Scheme Department, dated 09.01.1995. If an Anganwadi worker remains absent for more than six months, according to G.O.Ms. No. 4, such worker could be rightly terminated from service, without any enquiry. Based on G.O.Ms. No. 4, the impugned order is passed. 2. Since the impugned order of dismissal was passed without notice and without holding any enquiry and the same is violative of Article 14 and 21 of Constitution of India, this Court has taken up the writ petition for final disposal at the time of admission itself. 3. The petitioner has been in service for 9 years. The post of Anganwadi worker is also a civil post. Even assuming that the same is not a civil post, no adverse order having civil consequences could be passed against any person without hearing the said person. It is a well settled principle. 4. The impugned order states that the petitioner applied medical leave from 14.04.2015 to 11.10.2015. It is stated that she did not join duty after expiry of leave on 11.10.2015. If it is so, it has to be taken that the leave was sanctioned for the aforesaid period. Nowhere the impugned order states that the leave was refused. 5. If it is taken that the petitioner was on leave for the period 14.04.2015 to 11.10.2015, then the petitioner cannot be blamed that she remained absent for more than six months. Further the petitioner sought extension of leave from 12.10.2015 to 20.11.2015 and enclosed a medical certificate obtained from the Urban Primary Health Centre at Periyakulam Municipality. In any event, the learned counsel for the petitioner has submitted that the petitioner is willing to report duty. 6. Further the petitioner sought extension of leave from 12.10.2015 to 20.11.2015 and enclosed a medical certificate obtained from the Urban Primary Health Centre at Periyakulam Municipality. In any event, the learned counsel for the petitioner has submitted that the petitioner is willing to report duty. 6. Even if the leave for the period from 14.04.2015 to 11.10.2015 was not sanctioned and the petitioner remained unauthorisedly absent, the respondents cannot dismiss the petitioner from service depriving her livelihood in violation of Article 14 and 21 of the Constitution of India without holding any enquiry. 7. G.O.Ms. No. 4 is also produced before this Court. Para 3(M) of G.O.Ms. No. 4 reads as follows: 8. In my view, G.O.Ms. No. 4, permitting the authorities to summarily dismiss the Anganwadi workers for absence 6 months and above, is bad and illegal and violative of Article 14 and 21 of the Constitution of India. The unauthorised absence for more than 6 months amounts to misconduct and therefore, the authorities are bound to hold an enquiry, before dismissing the employee for the unauthorised absence for more than six months. Hence, I am of the view that the first respondent is not correct in passing the impugned order in simply dismissing the petitioner from service without notice and without hearing and without also holding an enquiry. 9. It is useful to extract the following portion of the Apex Court judgment in M.C.D. v. Praveen Kumar Jain and others reported in (1998) 9 SCC 468 : "4. ...... Unfortunately, for the appellant the impugned order of termination extracted above does not show that it was passed after a departmental enquiry wherein the disciplinary authority was satisfied about the said misconduct. On the contrary, it seeks to terminate the services of Respondent 1 by way of a simple discharge and not by way of any penalty. It is only during the proceedings before the Labour Court that a different stand was taken that it was by way of penalty. This stand was obviously taken by the appellant because the order of simpliciter termination would have remained stillborn as Section 25-F of the Industrial Disputes Act was admittedly not complied with by the appellant. With this difficulty staring in the face, a stand was taken that it was by way of penalty. This stand was obviously taken by the appellant because the order of simpliciter termination would have remained stillborn as Section 25-F of the Industrial Disputes Act was admittedly not complied with by the appellant. With this difficulty staring in the face, a stand was taken that it was by way of penalty. If it was by way of penalty then at least a regular departmental enquiry had to be conducted. It was also required to be followed by the enquiry officer's report resulting in adverse finding against Respondent 1 and its acceptance by the disciplinary authority. Nothing of this sort was done. There is neither the enquiry officer's report holding Respondent 1 guilty of charge which in fact was never framed against him nor is there any acceptance of such a finding of the enquiry officer by the disciplinary authority. In fact the disciplinary authority has never held Respondent 1 guilty of any charge of misconduct." 10. It is also useful to extract the following portion of the Apex Court Judgment in D.K. Yadav v. J.M.A.Industries Ltd. reported in (1993) 3 SCC 259 : "11. The law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both. 12. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. It must logically apply to both. 12. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable. 13. In Delhi Transport Corpn. v. D.T.C. Mazdoor Congress this Court held that right to public employment and its concomitant right to livelihood received protective umbrella under the canopy of Articles 14 and 21 etc. All matters relating to employment include the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution and the rules made under proviso to Article 309 of the Constitution or the statutory provisions or the rules, regulations or instructions having statutory flavour. They must be conformable to the rights guaranteed in Parts III and IV of the Constitution. Article 21 guarantees right to life which includes right to livelihood, the deprivation thereof must be in accordance with just and fair procedure prescribed by law conformable to Articles 14 and 21 so as to be just, fair and reasonable and not fanciful, oppressive or at vagary. The principles of natural justice are an integral part of the guarantee of equality assured by Article 14. Any law made or action taken by an employer must be fair, just and reasonable. The power to terminate the service of an employee/workman in accordance with just, fair and reasonable procedure is an essential inbuilt of natural justice. Article 14 strikes at arbitrary action. Any law made or action taken by an employer must be fair, just and reasonable. The power to terminate the service of an employee/workman in accordance with just, fair and reasonable procedure is an essential inbuilt of natural justice. Article 14 strikes at arbitrary action. It is not the form of the action but the substance of the order that is to be looked into. It is open to the Court to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive. Fair play is to secure justice, procedural as well as substantive. The substance of the order is the soul and the effect thereof is the end result. 14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice. In D.T.C. v. D.T.C. Mazdoor Congress the Constitution Bench, per majority, held that termination of the service of a workman giving one month's notice or pay in lieu thereof without inquiry offended Article 14. The order terminating the service of the employees was set aside." 11. Hence, In these circumstances, I am inclined to quash the impugned order. However, I make it clear that it is left to the first respondent to proceed departmentally, if he is inclined to do so. 12. Accordingly, the impugned order is set aside. The statement made by the learned counsel for the petitioner that the petitioner would report forthwith duty is recorded. The respondents are directed to provide duty forthwith. If the respondents are inclined to proceed departmentally, then it is for the department to place her under suspension or to proceed departmentally while permitting her to render service. 13. The writ petition is allowed in the above terms. No costs. Consequently, connected M.P.(MD) Nos. 1 and 2 of 2015 are closed.