Gujarat High Court
Jayaben Pareshbhai Patel vs State Of Gujarat on 15 July, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/6614/2017 ORDER DATED: 15/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6614 of 2017
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JAYABEN PARESHBHAI PATEL
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR AJAY S JAGIRDAR(2688) for the Petitioner(s) No. 1
MR. MEET THAKKAR, AGP for the Respondent(s) No. 1
MS RV ACHARYA(1124) for the Respondent(s) No. 2,3
NOTICE SERVED(4) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 15/07/2021
ORAL ORDER
1. Heard learned advocate Mr. Ajay Jagirdar for the petitioner, learned advocate Ms. R.V. Acharya for the respondent Nos.2 and 3 and learned Assistant Government Pleader Mr. Meet Thakkar for the respondent-
State through video conference.
2. Rule returnable forthwith. Learned AGP Mr. Meet Thakkar waives service of notice of rule for and on behalf of respondent-State and learned advocate Ms. R.V. Acharya waives service of notice of rule for and on behalf of respondent Nos.2 and 3.
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3. By this petition, the petitioner has challenged the order of termination dated 25.06.2015 passed by the respondent No.3- Child Development Programme Officer, Surat without issuance of any notice and without conducting any department inquiry.
4. The brief facts of the case are that the petitioner was appointed as an Aaganwadi worker at Bhesan-3, Choryasi-
1, District-Surat with effect from 10.07.2006. Another employee Jagrutiben G. Patel who was close relative of the petitioner was also appointed and working as Aanganwadi worker since 2000.
5. Learned advocate Mr. Jagirdar appearing for the petitioner submitted that both the petitioner and Jagrutiben were dismissed from the service by common order dated 25.06.2015. Learned advocate Mr. Jagirdar further submitted that Jagrutiben Ganpatbhai Patel preferred Special Civil Application No.12542 of 2015 before this Court and vide order dated 27/10/2015, this Court (Coram: Hon'ble Ms. Justice Sonia Gokani) allowed the petition and Jagrutiben Ganpatbhai Patel was Page 2 of 11 Downloaded on : Sun Jan 16 00:17:15 IST 2022 C/SCA/6614/2017 ORDER DATED: 15/07/2021 reinstated as Aanganwadi worker by the respondents. It was, therefore, submitted that as the petitioner was similarly situated as that of Jagrutiben Ganpatbhai Patel, petitioner should also be reinstated by the respondents.
6. On the other hand, learned advocate Ms. Acharya appearing for the respondent No.3 submitted that the petitioner has filed petition after one and half years from the date of her termination. It was submitted that after the petitioner was terminated from service, advertisement was issued by the respondent and one Chetnaben Nareshbhai is appointed as Aanganwadi worker in place of the petitioner since 16.01.2017. It was, therefore, submitted that the petitioner cannot be reinstated in service. It was also submitted that the petitioner has not made any representation or approached the authority for her reinstatement on the basis of the judgment of this Court passed in case of Jagrutiben Ganpatbhai Patel. It was, therefore, submitted that petition is required to be dismissed on the ground of delay, laches and acquiescence.
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7. Having heard learned advocates for the respective parties and having gone through the material on record, it appears that petitioner is similarly situated like Jagrutiben Ganpatbhai Patel, whose service was also terminated by common order dated 25.06.2015 without issuing any notice or providing any opportunity of hearing or without conducting any departmental enquiry.
8. In that view of the matter as Special Civil Application No.12542 of 2015 filed by Jagrutiben Ganpatbhai Patel is allowed by this Court vide order dated 27.10.2015, this petition is also required to be allowed on the same reasons, which are recorded by this Court as follows in the said judgment:
"Having thus heard both the sides, at this stage, the legality on the subject requires consideration. The Apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, reported in (1998) 8 SCC 1, held that the High Court can exercise writ jurisdiction in three contingencies: (I) where the writ petition seeks enforcement of any of the fundamental rights;
(ii) where there is violation of principles of natural justice; or (iii) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged. Thus, in the event of violation of principles of natural justice, the petitioner can approach this Court under Article 226 of the Constitution of India, and the petitioner may not be relegated to the other forum for taking recourse to the alternative remedy.Page 4 of 11 Downloaded on : Sun Jan 16 00:17:15 IST 2022
C/SCA/6614/2017 ORDER DATED: 15/07/2021
12. In case of D.K. Yadav (supra), the Court has held that if a person is to be deprived of his livelihood, the procedure that is prescribed for such deprivation needs to meet the challenge of Article 14, and such law would be liable to be decided on the anvil of Article 14. The Court has held that the principles of natural justice must apply to quasi- judicial enquiry and to the administrative enquiry as well. Article 21 guarantees right to life, which includes right to livelihood, and 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. It would be profitable to reproduce the relevant paragraphs:
14. It is thus well settled law that right to life enshrined under Art. 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 enquiry conducted complying with the principles of natural justice. In D. 7. C. v. D. T.C. Mazdoor Congress and Ors. (supra) 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 enquiry offended Art. 14. The order terminating the service of the employees was set aside.
15. In this case admittedly no opportunity was given to the appellant and no enquiry was held. The appellant's plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented to report to duty, nor he be permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the Page 5 of 11 Downloaded on : Sun Jan 16 00:17:15 IST 2022 C/SCA/6614/2017 ORDER DATED: 15/07/2021 management had power under Cl. 13 of the certified Standing Orders to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the standing order No. 13 (2) (iv). Otherwise it would become arbitrary. unjust and unfair violating Arts. 14. When so read the impugned action is violative of the principles of natural justice.
16. This conclusion leads us to the question as to what relief the appellant is entitled to. The management did not conduct any domestic enquiry nor given the appellant any opportunity to put forth his case. Equally the appellant is to blame himself for the impugned action. Under those circumstances 50 per cent of the back wages would meet the ends of justice. The appeal is accordingly allowed. The award of the Labour Court is set aside and the letter dated December 12, 1980 of the management is quashed. There shall be a direction to the respondent to reinstate the appellant forthwith and pay him back wages within a period of three months from the date of the receipt of this order. The appeal is allowed accord- ingly. The parties would bear their own costs.
13. In the case of Ajaypal Singh (supra) relating to the question of retrenchment of workman, who was in continuous service for not less than one year under the State, the Apex Court has held that the State or its establishment/undertaking without complying with mandates of Section 25-can order retrenchment of workman on the ground that the initial appointment was in violation of Articles 14 and 16 of the Constitution. But, it can not do so in contravention of Section 25-F as that would render the order illegal, and may amount to unfair labour practice by employer with the object of depriving workman benefits of the Industrial Disputes Act, 1947. In this case, the workman had completed more than 240 days in the preceding calendar year but his services were terminated without one month's notice or pay in lieu thereof in terms of Page 6 of 11 Downloaded on : Sun Jan 16 00:17:15 IST 2022 C/SCA/6614/2017 ORDER DATED: 15/07/2021 Section 25-F of the Industrial Disputes Act, 1947, it was held that the termination of service was illegal. Paragraphs No.22, 23 and 24 are reproduced below:
"22. It is always open to the employer to issue an order of "retrenchment" on the ground that the initial appointment of the workman was not in conformity with Articles 14 and 16 of the Constitution of India or in accordance with rules. Even for retrenchment on such ground, unfair labour practice cannot be resorted to and thereby workman cannot be retrenched on such ground without notice, pay and other benefits in terms of Section 25-F of the Industrial Disputes Act, 1947, if continued for more than 240 days in a calendar year.
"23. However, in other cases, when no such plea is taken by the employer in the order of retrenchment that the workman was appointed in violation of Articles 14 and 16 of the Constitution of India or in violation of any statutory rule or his appointment was a back door appointment, while granting relief, the employer cannot take a plea that initial appointment was in violation of Articles 14 and 16 of the Constitution of India, in absence of a reference made by the appropriate Government for determination of question whether the initial appointment of the workman was in violation of Articles 14 and 16 of the Constitution of India or the statutory rules. Only if such reference is made, a workman is required to lead evidence to prove that he was appointed by following procedure prescribed under the Rules and his initial appointment was legal.
"24. In the present case, the services of the appellant was not terminated on the ground that his initial appointment was made in violation of Articles
14 and 16 of the Constitution of India. No such reasons were shown in the order of retrenchment nor was such plea raised while reference was made by the appropriate Government for adjudication of the dispute between the employee and the employer. In absence of such ground, we are of the opinion that it was not open for the High Court to Page 7 of 11 Downloaded on : Sun Jan 16 00:17:15 IST 2022 C/SCA/6614/2017 ORDER DATED: 15/07/2021 deny the benefit for which the appellant was entitled on the ground that his initial appointment was made in violation of Articles 14 and 16 of the Constitution of India."
14. The authority concerned, even if was desirous of terminating the services of the petitioner and even when the Anganwadi worker was not holding a statutory post or a civil post, it is the requirement of the authority to issue notice before the services of a worker is terminated. The Court needs to remember that the Anganwadi Workers are appointed under a scheme. These posts are not statutory posts. However, the appointment when made after following due process, any removal from service on alleged grounds shall require minimum giving of an opportunity of hearing. Admittedly, in the instant case, no such opportunity has been made available to the petitioner.
15. As is apparent from the order impugned, that on the ground that the very objective of the scheme is not being fulfilled because of the internal disputes of the petitioner and Jayaben, a Tedagar, who worked as a helper, it is also culling out from the record that, later on Jayaben was already transferred to Bhesan -3, which gets further vindicated by the request made by one Revaben D. Patel in favour of the petitioner. The fact remains that this Court is concerned with the fact that Jayaben was already transferred to Bhesan - 3. Therefore, even if there are some disputes between the parties, it has been conveyed that the lady never chose to join at all at Bhesan - 3. Be that as it may, for the present what is required to be considered by this Court is that when somebody worked for long 15 years, the least that the respondent authority would have done is to give an opportunity of hearing to her before termination of her services. This Court is conscious of the decision rendered by the Apex Court in the case of State of Karnataka and others Vs. Ameerbi and others reported in (2007) 11 SCC 681, which says that Anganwadi workers do not carry on any function of the State, the recruitment process is not governed by the Constitution or any statute, the posts were not created by the Constitution or any Page 8 of 11 Downloaded on : Sun Jan 16 00:17:15 IST 2022 C/SCA/6614/2017 ORDER DATED: 15/07/2021 statute, the State is not even required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India, and the rules framed under the proviso to Article 309 of the Constitution of India are also not attracted in the case of the respondents. Their appointments are under a scheme which continues for a long time. However, that would not mean that the authority can terminate the services without following due process and without giving an opportunity of hearing, even under the principles of natural justice. Moreover, this was not the case of termination simplicitor otherwise permissible under the law.
16. Resultantly, the order impugned is quashed and set aside. This Court on 9.9.2015 had directed the respondent authority to get one post of Anwanwadi Worker vacant till the next date of hearing, which is continued till date. It is submitted by learned advocate for the petitioner that pursuant to the advertisement dated 15.7.2015, the post in question has not been filled in the wake of the interim relief granted by this Court in favour of the petitioner. Hence, the following operative order:
The petition is allowed. The order impugned dated 25 th June 2015 is quashed and set aside. The petitioner shall be reinstated to her original post with all consequential benefits. This order, however, may not be seen as precluding the authority from initiating any action in accordance with law nor should this observation prompt the authority concerned to take any action against the petitioner Petition is disposed of in above terms with no order as to costs."
9. Moreover in the case of State of Gujarat v. Chetan Jayantilal Rajgor in Letters Patent Appeal No.1596 of 2019 rendered on 24.07.2020 it is held as under:Page 9 of 11 Downloaded on : Sun Jan 16 00:17:15 IST 2022
C/SCA/6614/2017 ORDER DATED: 15/07/2021 "11. From the overall material on record and in consideration of aforesaid observations, we see no distinguishable material to take a different view or deviate from the same. Since almost in similar issue, the proposition is to the effect that whenever any charge is levelled and action is found to be stigmatic, a full-scale departmental inquiry deserves to be undertaken irrespective of whether the delinquent was a regular employee or contractual employee on a fixed salary. As a result of this, we are of the considered opinion that since undisputedly by a brief procedure, an action is initiated against the respondents herein while dismissing their services, said action itself is found to be not on the touchstone of aforesaid proposition of law. As a result of this, no error is committed by the learned Single Judge. Having perused these material, we are not satisfied with the submissions made by learned counsel for the appellants in both these appeals.
15. Additionally, we are also of the opinion that these Letters Patent Appeals have arisen out of the learned Single Judge's decision. The scope of Letters Patent Appeal is well defined by the Apex Court in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company, reported in 2016 LawSuit (SC) 94.
Relevant Para.5 of the said decision is reproduced hereinafter :
"Once the learned Single Judge having seen the records and come to the conclusion that the industry was not functioning after January, 1995, there is no justification in entering a different finding without any further material before the Division Bench. The appellate bench ought to have noticed that the statement of MW-3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra-court appeal, on a finding of fact, unless the appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief."Page 10 of 11 Downloaded on : Sun Jan 16 00:17:15 IST 2022
C/SCA/6614/2017 ORDER DATED: 15/07/2021 Hence, we see no other distinguishing circumstance pointed out by the learned counsel for the appellants and as such, we are in complete agreement with the view taken by the learned Single Judge.
16. However, we make it clear that since the learned Single Judge has clearly observed that present appellants are not precluded from proceeding against the respondents in accordance with law, without disturbing said observations, we dismiss both these Letters Patent Appeals."
10. By adopting the same reasons as given by this Court while allowing the case of Jagrutiben Ganpatbhai Patel, this petition is also allowed and as the petitioner approached this Court in the year-2017 and the place at which, petitioner was working is already filled in, the respondents are directed to reinstate the petitioner at a nearby place with continuity but without back wages.
11. The petition is accordingly disposed of. Rule is made absolute to the aforesaid extent. No order as to costs.
Direct service is permitted.
(BHARGAV D. KARIA, J) SUYASH Page 11 of 11 Downloaded on : Sun Jan 16 00:17:15 IST 2022