Gauhati High Court
Rukia Begum vs The State Of Assam And 5 Ors on 19 September, 2019
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
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GAHC010260232017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 1601/2017
1:RUKIA BEGUM
W/O HAMAYON BADSHA R/O KUCHIAKHANDA P.S. GOBARDHANA P.O.
BILASIPARA BAZAR DIST. BAKSA BTAD, ASSAM
VERSUS
1:THE STATE OF ASSAM and 5 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
SOCIAL WELFARE DEPARTMENT, DISPUR, GUWAHATI-6.
2:THE DIRECTOR OF SOCIAL WELFARE
ASSAM UZAN BAZAR GUWAHATI - 781001.
3:THE JOINT DIRECTOR-CUM-CHD
SOCIAL WELFAR DEPARTMENT
BTC
KOKRAJHAR
P.O. and P.S. KOKRAJHAR
DIST. KOKRAJHAR
ASSAM
4:THE DISTRICT SOCIAL WELFARE OFFICER
BAKSA
ASSAM
5:THE CHILD DEVELOPMENT PROJECT OFFICER
GOBARDHANA INTEGRATED CHILD DEVELOPMENT PROJECT
JYOTI NAGAR
SHIMLAGURI
DIST. BAKSA
ASSAM
6:SMT. HAMIDA AHMED
W/O ABDUS SATTAR R/O VILL- KUCHIAKHANDA P.O. BILASIPARA BAZAR
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DIST. BAKSA BTAD
ASSAM PIN - 78131
Advocate for the Petitioner : MS.S RAHANA
Advocate for the Respondent : MR.M RAHMANR-6
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 19-09-2019 Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. A. Matin, learned counsel for the petitioner. Also heard Mr. I. Ahmed, learned counsel for the respondent No. 6 as well as Ms. R.B. Borah, learned counsel for the respondent Nos. 3, 4 & 5. Mr. G. Pegu, learned Govt. Advocate appears for the respondent Nos. 1 & 2.
2. The petitioner is assailing the engagement of the respondent No. 6 as Anganwadi Worker in Kuchiakhanda - II, AWC - 359, on the ground that the termination of the petitioner's service from the said post, was done without issuing any notice to her.
3. The petitioner's case is that the petitioner was appointed as Anganwadi Worker on 17.12.2009 after a proper selection had taken place. While working in the said post, she applied for 2 (two) months leave, vide letter dated 20.10.2014, on the ground that she was suffering from a severe illness. In support of her leave application, a Medical Certificate was issued by one Doctor on 18.10.2014 stating that the petitioner was suffering from severe headache and was under a Doctor's treatment.
4. The petitioner's counsel submits that the petitioner was granted leave and after availing the leave period, the petitioner rejoined her duty/post. However, no salary was paid to the petitioner. The petitioner was thereafter assured that her salary would be paid. As the same was not paid for more than a year, despite the petitioner rejoining her post, the petitioner, vide letter dated 26.12.2015, prayed for release of her arrear salary from 20.10.2014.
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5. The petitioner's counsel submits that during the leave period of the petitioner, the respondent No. 6 had been appointed as Anganwadi Worker on a temporary basis vide Office Order dated 18.12.2014, issued by the respondent No. 5. Thereafter, an Advertisement dated 06.10.2015 was issued by the respondent No. 5, calling for filling up the vacant post of Anganwadi Worker in Kuchiakhanda, Part - II - 359 Anganwadi Center. In pursuance to the Advertisement dated 06.10.2015, the respondent No. 6 was selected and was allowed to continue her voluntary service as Anganwadi Worker in the said Angawadi Center vide Office Order dated 05.08.2016, issued by the respondent No. 5. Mr. H.R.A. Choudhury, learned Senior Counsel submits that the Advertisement dated 06.10.2015 has been challenged in this writ petition as the petitioner became aware of the Advertisement dated 06.10.2015 only after the counter affidavit had been filed by the respondents in the earlier 2 (two) writ petitions, i.e., WP(C) No. 343/2016 and WP(C) No. 5112/2016.
6. The learned Senior Counsel for the petitioner submits that no notice was issued to the petitioner, prior to termination of her service. He submits that the appointment of the respondent No. 6 should be set aside and the petitioner should be re-instated into service due to violation of natural justice.
7. The learned counsel for the State respondents, on the other hand, submits that the petitioner had never applied for 2 (two) months leave and neither was the same granted to the petitioner by any of the State respondents. She also submits that as a complaint has been lodged by the Anganwadi Helper on 29.10.2014 and the Circle Supervisor on 31.10.2014, regarding the absence of the petitioner from duty, the respondent No. 5 had directed the Statistical Assistant to make an enquiry into the matter. The Statistical Assistant in his Enquiry Report dated 18.11.2014 stated that he visited the residence of the petitioner's father and met the father and also the brother of the petitioner, who both confirmed that the petitioner had run away with one Haider Ali and they had no communication with her since August, 2014. In his Enquiry Report, the Statistical Assistant also stated that the petitioner had left her husband and 2 children and run away with the said Haider Ali of Jamdarbori.
8. The State respondents' counsel also submits that the Chairman of 11 No. Bonmaja VCDC, Bobardhana Development Block, vide Certificate dated 21.10.2016, has certified that the petitioner was not living any longer in Kuchiakhanda village since 2014, as she married a Page No.# 4/5 person after leaving her husband and 2 minor sons. The respondents' counsel submits that Show Cause Notice was sought to be given to the petitioner. However, as the petitioner no longer stayed in her earlier residence and as she could not be located, Show Cause Notice could not be given to her. Thus, vide Office Order dated 12.12.2014, the petitioner was discharged from her voluntary service as an Anganwadi Worker.
9. I have heard the learned counsels for the parties.
10. The stand of the petitioner that she had applied for leave and that it was granted, has been denied by the respondents. The petitioner is also unable to produce any document, showing that the leave applied for was granted to her. The petitioner has not denied her 2 nd marriage to Mr. Haider Ali. However, the petitioner has taken the stand that she is living with her new husband in her father's house, in the same village where the Anganwadi Center is located. On the other hand, the Enquiry Report of the Statistical Assistant and the Certificate issued by the Chairman of 11 No. Bonmaja VCDC, Bobardhana Development Block on 21.10.2016 states that the petitioner is not living in the Kuchiakhanda village any longer. Assuming that the Enquiry Report and Certificate dated 21.10.2016 are true, there is no infirmity with the stand taken by the State respondents that notice could not be issued to the petitioner. The contradictory stand of the parties clearly shows that there are disputed questions of fact, which cannot be decided by this Writ Court. The above being said, this Court finds that the respondent No. 5 had issued the Advertisement dated 06.10.2015, for appointment to the vacant post of Anganwadi Worker in Kuchiakhanda No. 359 Anganwadi Center.
11. The petitioner submitted a letter dated 26.12.2015 praying for release of her salary since 20.10.2014, on the ground that though the petitioner had re-joined her service after her leave period, the petitioner was not being paid her salary since 20.10.2014. The petitioner's above letter dated 26.12.2015 goes to show that the petitioner would have known about the Advertisement dated 06.10.2015, if the petitioner was residing within the village in which the Anganwadi Center was located.
The above clearly shows that the petitioner did not rejoin her duty in the Anganwadi Center as the Advertisement was issued on 06.10.2015, while the petitioner has taken the Page No.# 5/5 stand that after rejoining her post, she has not been paid her salary since October, 2014, vide letter issued on December, 2015.
The submission made by the learned Senior Counsel for the petitioner, which is to the effect that the petitioner came to know of the Advertisement dated 06.10.2015 only in the year 2016 is belied by the fact that the petitioner has written a letter on 26.12.2015, asking for payment of salary from 20.10.2014, on the ground that the petitioner had resumed her duty and was not being paid her salary for more than a year. It is unbelievable that the petitioner would not have known about the Advertisement for filling up the vacant post of Anganwadi Worker in the Anganwadi Center where she had been apparently working in, if she resided in the village where the Anganwadi Center was located. The above gives rise to an inference that the petitioner was not working in the Anganwadi Center any longer.
12. This Court, prima facie, does not find any reason to disbelieve the stand of the State respondents, as the inquiry initiated against the petitioner showed that she had left the village after marrying one Haider Ali. As such, no notice could have been given to her, prior to the discharge order. Having stated all the above, in view of there being disputed questions of facts, this Court is of the view that the proper forum to decide the matter is the Civil Court as evidence would have to be adduced. Accordingly, liberty is given to the petitioner to approach the Civil Court for his remedy, if any. In the event the petitioner approaches the Civil Court, it is made clear that the Civil Court will not be influenced by any observation made by this Court with regard to the prima facie finding of facts made by this Court in this order.
Writ petition is accordingly dismissed.
JUDGE Comparing Assistant