P.Narayanan v. The Director of Social Welfare &N.M.P., Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12.10.2009CORAMThe Hon'ble Mr. Justice K.CHANDRUW.P.No.36115 of 2006 P.Narayanan..PetitionerVs.

The Director of Social Welfare &N.M.P., Chennai – 5.

The Project Co-ordinator, S.W.D., Pudukkottai.

The Child Development Officer, Avudayar Koil, Pudukkottai Dist. ..Respondents Petition filed under Article 226 of The Constitution of Indiapraying to issue a writ of certiorarified mandamus to call for the records connected with the impugned order No.820/96 of the ChildDevelopment Project Officer (dated 10.04.1997) Avudayarkoil and to quash the same, consequently to direct the respondents to regularise her medical leave from 19.08.1996 to 02.06.1997 and to sanctionRs.1,00,000/- (Rupees One Lakh) from family benefit fund to the heir of the deceased Government Servant and to grant family pension. For petitioner..Mr.A.L.NamasivayamFor respondents..Mr.R.Neelakandan, Govt. Advocate ORDERThe petitioner is the husband of late V.Thangammal. The saidThangammal was working as Anganwadi Worker Grade I attached to the Gopalapattinam Anganvadi I Centre, Avudayarkoil, PudukkottaiDistrict. The petitioner's wife was removed from service by an order dated 10.4.1997, by the third respondent. The order of removal came to be passed on the ground that she has been unauthorisedly absented from 19.08.1996 to 02.06.1997. Despite direction to appear before the Medical Board, she refused to appear before the Medical Board and https://hcservices.ecourts.gov.in/hcservices/ it was also informed by an order dated 07.01.1997 that if she does not report for duty immediately, she will be removed from service without any further notice. Since the work entrusted to the saidV.Thangammal was suffering and she did not join duty, by an order dated 03.02.1997, one S.Selvam was appointed as Anganwadi Worker in the said centre. Despite notice being sent to the said V.Thangammal, she did not report for work and she also did not appear before the Medical Board. Therefore, she was removed from service by the order dated 10.04.1997. 2. It is now stated that the said Thangammal expired on02.06.1997. After the death of the said Thangammal, the present petitioner being the husband, has now come forward to challenge the order of termination and further seeks for regularstion of the medical leave from 19.08.1996 to 02.06.1997 and also to sanction asum of Rs.1 lakh from the Family Benefit Fund to the legal heirs of the deceased. 3. In view of the abolition of the Tribunal, the OriginalApplication filed by him being O.A.No.2385 of 1998 stood transferred to this Court and renumbered as W.P.No.36115 of 2006.

The respondents have produced the orders passed against the said V.Thangammal, including the order of removal. In the termination order, it is stated that the post of Anganwadi Worker is only a part time employment and it will not come under the Rules framed under Article 309 of the Constitution of India and the said V.Thangammalwas terminated from service only as per the guidelines issued in the Government letter dated 06.09.1995.

Mr.A.L.Namasivayam, learned counsel for the petitioner after referring to the grounds in the Original Application has raised mainly three grounds viz., (i) the Project Officer is not the appointing authority and she has no power to remove the petitioner'swife (ii) the said order has been passed in violation of the principles of natural justice and as such, there is violation of Articles 14 and 16 of the Constitution and (iii) the saidV.Thangammal was suffering from cancer and she has sent medical certificate, and therefore, the leave ought to have been granted to the petitioner's wife as required by her.

This Court is unable to agree with any one of the reasons raised in the Original Application. The post of Anganwadi Worker is not a constituted service under the Rules framed under Article 309 of the Constitution of India and the Government is empowered to create such posts from time to time, by issuing Government Orders.

In the present case, the argument that the said V.Thangammalhas been terminated without due process cannot be accepted, since number of reminders have been sent by the Department asking her to https://hcservices.ecourts.gov.in/hcservices/ report for duty, but she failed to do so. Even though the Departmentdirected her to appear before the Medical Board, she had not responded for the same.

The learned counsel for the petitioner stated that thepetitioner's wife was asked to appear before the Medical Board at Virudhunagar and she was unable to appear before the Medical Boardbecause she was in Pudukkottai. This argument also has not been borne out by any explanation sent by the petitioner or by his wife, including the certificate produced by the petitioner, which has been issued by a private hospital run by the CSI church at Neyyur, Kanyakumari District, which is found at page 12 of the typed set of papers. Further, she had also obtained another certificate stating that she was treated at Meenakshi Mission Hospital and ResearchCentre, which is enclosed at page 21 of the typed set of papers. Here, it must be noted that she lives in Sivakasi and she is able to travel to Neyyur, which is almost bordering Kerala State, as well asto Madurai, which could be possible only by crossing Virudhunagarand as such, her claim that she could not appear before the MedicalBoard at Virudhunagar cannot be accepted. In any event, if she was unable to attend the Medical Board due to the severity of illness, she should have written a letter. While the petitioner has now come forward to challenge the order of termination, she should have utilised his service for sending letters on her behalf, which has not been done in this case. Therefore, the argument that no procedure was followed cannot be accepted.

In fact, the refusal to appear before the Medical Board has been seriously viewed by the Supreme Court vide its judgment inSECRETARY TO GOVERNMENT AND OTHERS VS. A.C.J.BRITTO(1997 3 SCC 387).The contention that the refusal to appear before the Medical Boardcannot be treated as a disobedience of the order and no disciplinary action could be taken on that ground, as it was not a misconduct, was rejected by the Supreme Court in the case cited.

Further, in the cases of unauthorised absence, the obligation to hold enquiry is very limited, unless the offence itself is disputed. All that it requires is minimum principles of natural justice. But in the present case, the respondents have taken all efforts to get the services of the said V.Thangammal secured and their attempt to send her to the Medical Board having failed, they also sent a letter dated 20.3.1997 asking her to join duty, which was also not done. Except sending medical certificates, thepetitioner's wife has not chosen to correspond with the Departmentabout the nature of ailment suffered by her. In any event, since the post of Anganwadi Worker is not a constituted service, the obligation to conduct enquiry in terms of the statutory rules does not arise. https://hcservices.ecourts.gov.in/hcservices/

In view of the above, the relief claimed by the petitioner cannot be countenanced by this Court. The writ petition shall stand dismissed. No costs.mmi Sd/- Asst. Registrar/True Copy/ Sub. Asst. RegistrarTo1.The Director of Social Welfare &N.M.P., Chennai – 5.2.The Project Co-ordinator, S.W.D., Pudukkottai. 3. The Child Development Officer, Avudayar Koil, Pudukkottai Dist. 1 cc to M/s. Namasiayam, Advocate SR.53687 W.P.No.36115 of 2006SSK(CO)EU 29.10.2009.