Madhya Pradesh High Court
Smt. Babita Dhakad vs Smt. Aarti Bhadoriya on 23 October, 2017
1
W.A No. 383/2017 (Smt. Babita Dhakad Vs. Smt. Aarti Bhadoriya and others)
23.10.2017
Shri D.K. Katare, learned advocate for the
appellant.
Shri Ravindra Dixit, learned advocate for the
respondent no. 1.
Shri Praveen Newaskar, learned Government advocate for the respondents no. 2 to 4.
With consent of learned counsel for the parties the matter is finally heard.
Vide this appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam 2005, the order dated 20/07/2017 passed in W.P. No. 6110/2016 is being challenged by the petitioner, Project Officer, Integrated Child Development Scheme, Ater District Bhind. The challenge is confined to the imposition of cost.
The Writ Petition No. 6110/2016 filed by respondent no. 1 was directed against the order dated 12/07/2016 passed by the appellant in her official capacity as Project Officer, declining the joining to the petitioner as Anganwadi Karyakarta at Konshan Maddaiyya Mazre Centre for the reason that said Anganwadi got relocated under the policy of the State Government because of less density of population and an appointment of a sub-karyakarta as a result whereof there has no post of Anganwadi Karyakarta.
This order was found fault with by the learned 2 W.A No. 383/2017 (Smt. Babita Dhakad Vs. Smt. Aarti Bhadoriya and others) Single Judge on a finding that the relocation of the Anganwadi Centre at Konshan Maddaiyya Mazre was not done with prior approval of the Director, Integrated Child Development Scheme. The Writ Court also found the action of the appellant as deliberate to over reach the decision by the quasi judicial Authorities wherein the removal of the petitioner by the appellant was found fault with. The learned single Judge observed:-
"Since the Authority superior to the Commissioner had set aside the order of the Commissioner passed in second appeal, the act of the Project Officer is a deliberate act of sabotage and, therefore, it is directed that the Project Officer shall pay cost of Rs. 10,000/- which will be recovered from the salary of the Project Officer."
It is this part of the order which is being questioned on the ground that the order has been passed without affording the appellant an opportunity of hearing and that, the order passed by the appellant was in consonance with the decision by the State Government of closing such centres where the population is less than 150 persons.
Before adverting to these contentions two relevant facts are taken note of. Firstly, the appellant was an Officer incharge in the Writ Petition and the return on behalf of the State of M.P. was filed by her supported by the Affidavit wherein she justified her action. This fact should be evident from the pleadings in paragraph 4, 5 and 6 of the 3 W.A No. 383/2017 (Smt. Babita Dhakad Vs. Smt. Aarti Bhadoriya and others) return:
4. That, with regard to all the contentions of the petitioner, it is respectfully submitted that after dismissal of appeal of the petitioner by Collector, Anganwadi Center at Koshan Madaiyan was discontinued according to population and Mini Anganwadi Center has been opened. The action has been taken in pursuance of the order dated 05.08.2015 of the State Government. Copy of the order dated 05.08.2015 is Annexure R-1. The information of relocation of the Anganwadi Centre has been submitted to District Programme Officer vide letter dated 17.08.2015.
(Annexure R-2). Since there is no post of Anganwadi Worker in existence on which petitioner had been working before termination, she cannot be allowed to join after order in Second Appeal.
5. That, action of discounting the Anganwadi center at Koshan Madaiyan was taken much before the order in Second Appeal in favour of the petitioner and therefore contention of the petitioner about malafide are baseless and can not be believed by any stretch of imagination.
6. That, Anganwadi center at Kachhiyana has been sanctioned vide orders dated 08.08.2016 (Annexure P-3) and 16.08.2016 (Annexure P-4) and for filling the post in the said Anganwadi center advertisement dated 17.08.2016 (Annexure P-2) has been issued. The petitioner has no right to be appointed on the said post to the exclusion of other candidates who are eligible and applying in response to the advertisement. The claim of the petitioner against the post in advertisement dated 17.08.2016 is baseless and writ petition is liable to be dismissed having no merit.
These averments were apparently contrary to the findings recorded by the Joint Director, Integrated Child Development Scheme, Chambal Division, Morena, who was enquiring into the complaints received against the appellant. The Joint Director found:
Þbl izdkj ifj;kstuk vf/kdkjh ,oa leizfr izHkkjh ftyk dk;Zdze vf/kdkjh ftyk fHk.M Jherh cchrk /kkdM+ }kjk f'kdk;rdrkZ Jherh vkjrh HknkSfj;k ds izdj.k dks my>k;k tkdj mUgsa ijs'kku fd;k tk jgk 4 W.A No. 383/2017 (Smt. Babita Dhakad Vs. Smt. Aarti Bhadoriya and others) gS] muds }kjk ,d vksj tgka fcuk l{ke Lohd`fr ds viuh euethZ ls vkaxuokM+h dsUnzksa dk fjyksds'ku fd;k tkdj f'kdk;rdrkZ ds ewy iwoZ inLFkkiuk LFky dks"kM+ dh eMS;k esa feuh vkaxuokM+h dsUnz LFkkfir dj fn;k] ogh nwljh vksj laHkkx vk;qDr ,oa ekuuh; U;k;ky; ds vkns'kksa dks ikyu ugha fd;k tkdj ekeys dks iSphnk cuk;k tk jgk gSA vr% izdj.k ds laca/k esa fuosnu gS fd muds }kjk lapkyuky; dh vuqefr ds fcuk iquLZFkkfir fd;s x;s dks"kM+ dh eMS;k feuh vkaxuokM+h dsUnz dks vU;= LFkkfir djus ,oa Jherh vkjrh HknkSfj;k dks vkaxuokM+h dsUnz dks"kM+ dh eMS;k ¼ftlesa dfN;kus dh tula[;k dks Hkh 'kkfey djrs gq;s½ ij fu;qfDr vkns'k tkjh djus ds funsZ'k lapkyuky; Lrj ls fn;k tkuk izLrkfor gS] rkfd U;k;ky; vk;qDr pacy laHkkx eqjSuk ,oa ekuuh; mPp U;k;ky; [k.MihB Xokfy;j }kjk ;kfpdk dzekad MCY;w-ih- 4104@2016 esa ikfjr fd;s x;s vkns'kksa dk ikyu gks ldsA ß Thus a specific finding is recorded in respect of the conduct of the appellant in dilly dallying in the compliance of order of reinstatement.
Evident it is from the report that is of 05/07/2016, whereas the impugned order was passed by the appellant on 12/07/2016; over reaching the order passed in quasi- judicial proceedings and nullifying the orders by the Quasi Judicial Authorities. Such a conduct apparently is not becoming of an Officer of a state who has a bounden duty to abide by law and the rule of law. The appellant even tried to defend her action by filling return. True it is that the appellant is not personally impleaded. However, the Project Officer has been impleaded and there are allegations against the Project Officer, and, being aware thereof the appellant defended her action. In that event the appellant cannot turn around and say that she was not aware of the allegations in the petition which were against the Project Officer.5
W.A No. 383/2017 (Smt. Babita Dhakad Vs. Smt. Aarti Bhadoriya and others) All these facts lead to an inevitable conclusion that the Writ Court was well within its right in concluding that the Project Officer over reached the decision by higher Authorities in quasi-judicial capacity.
Petitioner has placed reliance on the decisions in Km. Neelima Mishra v. Dr. Harinder Kaur Paintal [AIR 1990 SC 1403] and 'K' A Judicial Officer, In Reference [(2001) 3 SCC 54] to substantiate the submissions that the Writ Court ought to have accorded an opportunity to the appellant before drawing a conclusion as to the culpability of the appellant.
In Km. Neelima Mishra (supra), the issue was as to whether the exercise of power by the Chancellor of the University in selecting a candidate is a quasi- judicial or administrative function. Their lordship while holding it to be an administrative character pleased to observe that:
"28... No judicial or quasi-judicial duty is imposed on the Chancellor and any reference to judicial duty, seems to be irrelevant in the exercise of his function. The function of the Chancellor is to consider and direct appointment of a candidate on the basis of the relative performance assessed by the Expert Selection Committee and in the light of the opinion, if any, expressed by the Executive Council. His decision nonetheless is a decision on the recommendation of the Selection Committee. Such a power cannot be considered as a quasi judicial power. And we see nothing in that to justify our thinking that it must conform to the principles of natural justice.
Whereas, in the matter of 'K' A Judicial Officer (supra), the Supreme Court was dwelling upon an 6 W.A No. 383/2017 (Smt. Babita Dhakad Vs. Smt. Aarti Bhadoriya and others) adverse remark made in judicial pronouncement against the conduct of subordinate judiciary and were pleased to observe that:
"7. A Judge entrusted with the task of administering justice should be bold and feel fearless while acting judicially and giving expression to his views and constructing his judgment or order. It should be no deterrent to formation and expression of an honest opinion and acting thereon so long as it is within four-corners of law that any action taken by a subordinate judicial officer is open to scrutiny in judicial review before a superior forum with which its opinion may not meet approval and the superior court may upset his action or opinion. The availability of such fearlessness is essential for the maintenance of judicial independence. However, sobriety, cool, calm and poise should be reflected in every action and expression of a Judge.
9. The courts do have power to express opinion, make observations and even offer criticism on the conduct of anyone coming within their gaze of judicial review but the question is one of impelling need, justification and propriety. The following observation by Sulaiman, J. in Panchanan Banerji v. Upendra Nath Bhattacharji [AIR 1927 All 193 : 27 Cri LJ 1407 ; 25 All LJ 100] was cited with approval before this Court in Niranjan Patnaik v. Sashibhusan Kar [(1986) 2 SCC 569 : 1986 SCC (Cri) 196] : (SCC p. 576, para 23) "The High Court, as the Supreme Court of revision, must be deemed to have power to see that courts below do not unjustly and without any lawful excuse take away the character of a party or of a witness or of a counsel before it."
12. Though the power to make remarks or observations is there but on being questioned, the exercise of power must withstand judicial scrutiny on the touchstone of following tests: (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. The 7 W.A No. 383/2017 (Smt. Babita Dhakad Vs. Smt. Aarti Bhadoriya and others) overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve [see AIR 1964 SC 703 :
(1964) 2 SCR 363 : (1964) 1 Cri LJ 549] In the case at hand, the appellant herself being the officer incharge; defending her own order by ignoring the findings recorded by the Joint Director in an enquiry into the allegations against the appellant, has to blame herself for being saddled with cost.
In view of these facts, the decisions in Km. Neelima Mishra (supra) and 'K' A Judicial Officer, In Reference (supra) are of no assistance to the appellant.
In view whereof no interference is caused. The Writ Appeal fails and is dismissed. Interim order stand vacated. No costs.
(Sanjay Yadav) (S.K. Awasthi)
Judge Judge
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