Karnataka High Court
Smt.Mallamma W/O Siddram vs The State Of Karnataka & Ors on 18 April, 2017
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NO.200713/2017 (S-RES)
BETWEEN
SMT.MALLAMMA W/O SIDDRAM
AGE; ABOUT 35 YEARS, OCC:ANGANWADI WORKER,
R/o INDIRA NAGASR, SIRWAL VILLAGE,
TQ; MANVI, DIST; RIACHUR.
... PETITIONER
(BY SRI VENKATESH C.MALLABADI, ADV.)
AND
1. THE STATE OF KARNATAKA
DEPT. OF WOMEN AND CHILD DEVELOPMENT
MINISTRY,
REPRESENTED BY ADDL. CHIEF SECRETARY
2. THE DEPUTY COMMISSIONER
RAICHUR - 584 101
3. THE ASST. DIRECTOR,
WOMEN AND CHILD DEVELOPMENT
DEPT. OF WOMEN AND CHILD DEVELOPMENT
RAICHUR 584 101.
4. THE DEPUTY DIRECTOR,
WOMEN AND CHILD DEVELOPMENT
DEPT. OF WOMEN AND CHILD DEVELOPMENT
RAICHUR 584 101.
2
5. THE CHILD DEVELOPMENT PROJECT OFFICER,
DEPT. OF WOMEN AND CHILD DEVELOPMENT
RAICHUR 584 101.
... RESPONDENTS
(BY SMT : ARCHANA P. TIWARI AGA )
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
& 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT OF CERTIORARI AND MANDAMUS AND C GRANT
ANY OTHER APPROPRIATE WRIT, QUASHING THE ORDER
DATED: 25-12-2016 IN THE FILE
NO.G¤gÁ/ªÀĪÀÄj/CAPÁPÀ/UË.¸ÉÃ/CªÀiÁ¤vÀÄÛ.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner - Anaganwadi worker is before this court for a writ of certiorari to quash the impugned order dated: 25-12-2016 made in No. G¤gÁ/ ªÀĪÀÄj/ CAPÁPÀ/ UË.¸ÉÃ/CªÀiÁ¤vÀÄÛ. passed by the fourth respondent as per Annexure -C and direct the respondents to pay salary from the date of impugned order.
2. It is the case of the petitioner that she is working as Anganwadi worker and appointed on 16-07-2007.
3Presently the petitioner is working at Sirwar village Anganwadi Kendra No.25 since 2014, sincerely, honestly and without any black mark on the duties. It is further contended that all these years she earned lot of love and affection of the villagers and also surrounding villagers for honestly discharging her service at the Kendra and especially for timely distribution of the nutrition food to the women and children of the village. The petitioner is also given additional responsibility of additional Anganwadi Kendra No.19 and she has to travel to both the Kendra for three days each and discharge her duties. In additional Kendra No.19 the petitioner has no assistant hand / anganwadi worker to assist in discharging duties and distributing the food materials.
3. The petitioner has contended that the additional Kendra is situated in a rented space and is located in Muslim dominated area and most of the children are from the Muslim families. Even on the eve of Id-milad, many students had not been to Anganwadi Kendra and also most of the food materials had also been distributed to the house 4 of pregnant woman, children aged between six months to three years, women's under maternity and others from 1st day of the month to 6-7 days of every month, there was a little food materials yet sufficient from Kendra as per the requirement and supply of the food to the Sirwar Kendra.
4. The respondent No.4 visited the Sirwar Kendra on 16- 12-2016 and without looking into the records and circumstances of the area, started questioning the petitioner on quantity of the food materials stored and alleged non-
maintenance of the cleanliness by the petitioner. The petitioner has made her best efforts to make the respondent No.4 to understand the situation of the festive eve in the locality and non availability of workers and also the petitioner had additional responsibility of additional kendra, the food materials being already distributed and the food available as per the records. But the respondent No.4 without taking note of any records and without enquiring the beneficiaries left the Kendra immediately. Thereafter petitioner received suspension order on 25-12-2016 5 suspending her from service as Anganwadi worker. Hence the petitioner is before this Court for the relief sought for.
5. I have heard learned counsel for the parties to the lis.
6. Sri Venkatesh C.Mallabadi, learned counsel for the petitioner contended that though the suspension order was issued on 25-12-2016, till today no enquiry is initiated, nor suspension order is revoked and subsistence allowance is also not paid. Therefore the impugned order is liable to be quashed. He further contended that the respondent No.4 without following the principles of natural justice and without hearing the petitioner has proceeded to issue suspension order contrary to the material on record. The respondent No.4 has failed to enquire the villagers and beneficiaries to whom the food materials are distributed and seek their opinion on the working of the petitioner. The fourth respondent without holding any local inspection and enquiry proceeded to pass the impugned order, which is 6 contrary to law. Therefore he sought to quash the impugned order passed by the fourth respondent.
7. Per contra, Smt.Archana P. Tiwari, learned Additional Government Advocate on instructions from respondent No.5 submits that in view of certain irregularities committed by the petitioner at Anganwadi Kendra No.25 the suspension order was issued and it is a honorary post. The petitioner has not maintained records properly for distribution of food meant for pregnant woman and children aged between six months and three years. She also submits that the suspension order passed by the fourth respondent is neither yet revoked, nor initiated any enquiry proceedings.
Therefore she sought to justify the impugned order.
8. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arise for my consideration is:
1) Whether the fourth respondent is justified in continuing the impugned order suspending the petitioner from service w.e.f 25-12-2016 even 7 beyond three months, in the facts and circumstances of the present case?
9. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the materials on record carefully.
10. Having regard to the submissions made by the learned counsel for the parties, it is clear that the petitioner was appointed as Anganwadi worker on 16-07-2007 and she has been working presently at Sirwar Anganwandi Kendra No.25 since 2014. It is also not in dispute that she has given additional responsibility of additional Anganwadi Kendra No.19.
11. It is also not in dispute that she has been working in Anganwandi Kendra from 2007 till 25-12-2016 without any remark for more than nine years. The records also not clearly indicates that fourth respondent before issuing suspension order has not held any local inspection of the villagers to know whether there was proper distribution 8 of the food to the pregnant woman and children aged between six months and three years.
12. It is also not disputed that the fourth respondent issued suspension order on 25-12-2016 in respect of village Sirwar Anganwadi Kendra No.25 and the same is not revoked even after lapse of more than three months. The same is contrary to the dictum of the Hon'ble Supreme Court of India in case of Ajay Kumar Choudhary V/s Union of India through its secretary reported in (2015) 7 Supreme Court Cases 291), wherein the Hon'ble Supreme Court of India has held as under:-
8. The learned Senior Counsel for the appellant, however, has rightly relied on a series of Judgments of this Court, including O.P.Gupta V/s Union of India, where this Court has enunciated that the suspension of an employee is injurious to his interests and must not be continued for an unreasonably long period; that, therefore, an order of suspension should be lightly passed.
9. Our attention has also been drawn to K.Sukhendra Reddy, V State of A.P., which is topical in that it castigates selective suspension perpetuated indefinitely in circumstances where other involved persons had not been subjected to any 9 scrutiny. Reliance on this decision is in the backdrop of the admitted facts that all the persons who have been privy to the making of the office notes have not been proceeded against departmentally.
10. So far as the question of prejudicial treatment accorded to an employee is concerned, this Court in State of A.P. V N.Radhakishan has observed that it would be fair to make this assumption of prejudice if there is an explained delay in the conclusion of proceedings. However, the decision of this Court in Union of India V Dipak Mali does not come to the succour of the appellant since our inspection of the records produced in original have established that firstly, the decision to continue the suspension duly supported by elaborate reasoning.
11. Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short sound reasoning contemporaneously available on the record, this could render it punitive in nature. Departmental/disciplinary proceedings invariable commence with delay, are plagued with procrastination prior and post the drawing up of the memorandum of charges, and eventually culminate after even longer delay.
12. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the 10 derision of his department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity.
Much too often this has now become an accompaniment to retirement. Indubitably the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of common law jurisprudence, antedating even the Magna Carta of 1215, which assures that - "We will sell to no man, we will not deny or defer to any man either justice or right." In similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.
13. Article 12 of the Universal Declaration of Human Rights, 1948 assures that -
`12" No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks".
1114. More recently, the European Convention on Human Rights in Article 6(1) promises that "6.(1) in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time...." and in its second sub article that :
"6.(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".
15. The Supreme Court of the United States struck down the use of nolle persequi, an indefinite but ominous and omnipresent postponement of civil or criminal prosecution in Klapfer vs. State of North Carolina.
16. In Kartar Singh vs. State of Punjab (1994) 3 SCC 569 the Constitution Bench of this Court unequivocally construed the right of speedy trial as a fundamental right, and we can do no better the extract these paragraphs from that celebrated decision -(SCC pp.638-39, paras 86-87) " 86 The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a 12 finality, can be averted. In this context, it may be noted that the constitutional guarantee of speedy trial is properly reflected in Section 309 of the Code of Criminal Procedure.
87. This Court in Hussainara Khatoon (I) v. Home Secretary, State of Bihar while dealing with Article 21 of the Constitution of India has observed thus:
6. "No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.
The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21."
17. The legal expectation of expedition and diligence being present at every stage of a criminal trial and a fortiori in departmental inquiries has been emphasised by this Court on numerous occasions. The Constitution Bench in Abdul 13 Rehman Antulay vs. R.S. Nayak, 1992 (1) SCC 225, underscored that this right to speedy trial is implicit in Article 21 of the Constitution and is also reflected in Section 309 of the Cr.P.C., 1973; that it encompasses all stages, viz., investigation, inquiry, trial, appeal, revision and re-trial; that the burden lies on the prosecution to justify and explain the delay; that the Court must engage in a balancing test to determine whether this right had been denied in the particular case before it. Keeping these factors in mind the CAT had in the case in hand directed that the Appellant's suspension would not be extended beyond 90 days from 19.3.2013. The High Court had set aside this direction, viewing it as a substitution of a judicial determination to the authority possessing that power, i.e., the Government.
18. This conclusion of the High Court cannot be sustained in view of the following pronouncement of the Constitution Bench in Antulay: (SCC pp 270-73, para 86)
86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are:
(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of 14 the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused.
It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.
(2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view. (3) The concerns underlying the right to speedy trial from the point of view of the accused are:
(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of [pic]death, disappearance or non-
availability of witnesses or otherwise.
15(4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation.
16(5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on - what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
(6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barke 33 L Ed 2d 101 "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by White, J. in U.S. v. Ewell 15 L Ed 2d 627 in the following words:
'... The Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.' However, inordinately long delay may 17 be taken as presumptive proof of prejudice. In this context, the fact of incarceration of [pic]accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case.
(7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution.
Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker 33 L Ed 2d 101and other succeeding cases. (8) Ultimately, the court has to balance and weigh the several relevant factors - 'balancing test' or 'balancing process' - and determine in each case whether the right to speedy trial has been denied in a given case.
(9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only 18 course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order - including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded - as may be deemed just and equitable in the circumstances of the case.
(10) It is neither advisable nor practicable to fix any time- limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.
(11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except 19 in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.
19. State of Punjab v. Chaman Lal Goyal (1995) 2 SCC 570 deserves mention, inter alia, because action was initiated on 25.3.1992 and a Memorandum of Charges was issued on 9.7.1992 in relation to an incident which had occurred on 1.1.1987. In the factual matrix obtaining in that case, this Court reserved and set aside the High Court decision to quash the Inquiry because of delay, but directed that the concerned officer should be immediately considered for promotion without taking the pendency of the Inquiry into perspective.
20. It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Cr.P.C. of 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh vs. State of Bihar, 1986 (4) 20 SCC 481, and more so of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of the Cr.P.C. 1973 to moderate Suspension Orders in cases of departmental/disciplinary inquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of Charges/Chargesheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Cr.P.C. postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal
13. It is undisputed fact that the suspension order was passed by fourth respondent on 25-12-2016 in respect of the petitioner. The suspended person suffering the ignominy of insinuations, the scorn of society and the decision of her department, has to endure this excruciation even before she is formally charged with some misdemeanor, indiscretion or offence. Hence the Authority concerned has to take action immediately to hold enquiry. The same has not 21 been done in the present case and it is also clear from the records that from the date of suspension the petitioner has not been paid subsistence allowance. Even though the learned Additional Government Advocate sought to justify the impugned order on the ground that petitioner is an honorary employee. Therefore the subsistence allowance cannot be paid. The said contention cannot be accepted for the simple reason that it is well settled principle of law that "No employee can be deprived of subsistence allowance and if subsistence allowance is deprived the same would amount to deprivation of livelihood and contrary to law and hit by Article 21 of Constitution of India"
13. The Apex Court while considering the issue relating to the order of suspension in the case of Union of India V/s Ashok Kumar Aggarwal reported in 2013(14) scale 323 held that :
"During suspension, relationship of master and servant continues between the employer and employee. However, the employee is forbidden to perform his/her official duties. Thus, suspension order does not put on end to the service. 22 Suspension means the action of debarring for the time being from a function or privilege or temporary deprivation of working in the office.
14. For the reasons stated above, the point raised in the present writ petition is answered in the 'Negative' holding that the fourth respondent is not justified in continuing the suspension order beyond three months in view of the dictum of the Hon'ble Supreme Court of India stated supra.
15. In view of the above, the writ petition is allowed. The impugned order dated: 25-12-2016 passed by fourth respondent is quashed. The fourth respondent is directed to pay the salary to the petitioner from the date of suspension order till today in accordance with law.
However it is open for the respondents to initiate departmental enquiry against the petitioner if any, in accordance with law.
Sd/-
JUDGE MWS/JSM