Application under Articles 226 & 227 of Constitution of India. AFR Gayatri Meher … v. State of Odisha and Ors
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 20450 of 2021 Application under Articles 226 & 227 of Constitution of India. AFR Gayatri Meher …… Petitioner --------------- - Versus - State of Odisha and Ors. ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : M/s. Manas Chand, R.R. Mishra, K. Mansingh, A.K. Sahoo, Advocate For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 9th October, 2024 SASHIKANTA MISHRA, J. The petitioner has filed this writ application seeking the following prayer: Under such Circumstances the Petitioner therefore Pray that this Hon’ble Court may kindly be Pleased to Admit the Writ application, issue Rule NISI calling upon the Opp. Parties more especially Opp-Party NO- 2 and 3 to show cause as to why the Disengagement of the Petitioner from the post of Anganwadi Worker of Page 1 of 12
Facts
Bhuliasikuan Anganwadi Center- IV without affording opportunity of hearing and in violation of Principles of Natural Justice and subsequent confirmation of the same by order dt. 10.12.2019 as per Annexure No-4 and the Advertisement as per Annexure No- 5 and confirmation of Disengagement Order in Appeal vide illegal, Annexure No-6 shall not be declared as arbitrary, and thereby quashed. And upon Showing no Cause or insufficient Cause the Rule be made absolute by allowing the Writ Application with the petitioner to continue in his post as before with all consequential Service Benefits. the aforesaid Prayer thereby allowing And for which act of kindness, the petitioner as in duty bound shall ever pray” 2. The facts of the case, briefly stated, are that the petitioner was working as Anganwadi Worker of Bhuliasikuan Anganwadi Centre-IV under C.D.P.O., Khariar in the district of Nuapada since 12.01.2010. While working as such, she submitted application for leave on 01.01.2019 and also took verbal permission of the C.D.P.O. to adopt test tube procedure for a child at Rourkela as advised by the Doctor. She handed over responsibilities of the Centre to the Anganwadi Helper and the cook and left the village to be admitted in Shanti Memorial Hospital, Rourkela. On 04.01.2019 she underwent surgery and remained under constant medical treatment and delivered two premature babies on 01.07.2019. Unfortunately, both the Page 2 of 12 babies died on the same day, for which she was under lot of mental stress. On her return to the village she submitted her joining report to the CDPO on 12.07.2019 but she was not allowed to join, instead she was asked to show cause vide letter dated 24.07.2019 as to why action shall not be taken against her for remaining absent for such long period. She submitted her reply on the same day enclosing copy of the medical certificate and all connected documents but no action was taken thereon. As such, she approached this Court in W.P.(C) No.16407 of 2019, which was disposed of by order dated 13.09.2019 directing the Sub-Collector, Nuapada to consider the representation of the petitioner. The petitioner attended personal hearing before the Sub-Collector on 22.10.2019 and participated in the hearing, but by order dated 10.12.2019, said representation was rejected by affirming the order dated 09.08.2019 in disengaging her. According to the petitioner, the order of disengagement had never been served upon her. Further, she came to know that after rejection of her representation an advertisement had been issued for fresh engagement of Anganwadi Worker for the Centre. The petitioner Page 3 of 12 again approached this Court in W.P.(C) No.19019 of 2020, which was disposed of on 28.02.2020 directing her to file appeal before the appellate forum. Accordingly, the petitioner filed Anganwadi Appeal No.1 of 2020 before the Additional District Magistrate, Nuapada, which was ultimately dismissed on 20.01.2021. It is the petitioner’s case that the order of disengagement was passed without any enquiry or grant of opportunity of hearing. It is also her case that she had duly intimated all concerned about her medical leave and therefore, same could not have been ignored. Citing the above facts, the petitioner has approached this Court in the present writ application with the prayer as already stated hereinabove. 3. Counter affidavit has been filed by opposite party Nos.2 & 3 refuting the averments made in the writ application. It is the case of the opposite parties that the petitioner remained absent continuously from September, 2018 till the date of her disengagement i.e. 09.08.2019. Prior to that, several notices/show cause notices were issued by the CDPO, i.e., on 22.10.2018, 30.12.2018, 02.02.2019, 12.03.2019, 09.04.2019, 15.04.2019 and 27.02.2019. Since she did not respond to the Page 4 of 12 notices, the same was published in the Odia newspaper ‘Sambad’ on 29.07.2019. In spite of the aforesaid, the petitioner did not turn up to join in her post. On the other hand, the villagers filed a grievance petition before the CDPO on 14.08.2019 to appoint a new Anganwadi Worker. It is further stated that because of continuous absence of the petitioner, the day to day affairs of the Anganwadi Centre were adversely affected. Taking into consideration all the above facts, the appellate authority has rightly dismissed the appeal filed by the petitioner. 4.
Legal Reasoning
merely making an allegation will not negate the prima facie fact that the letters had been received by the person concerned. It is too much to expect that the petitioner would forge the signatures of the Supervisor and the CDPO and would also Page 8 of 12 manage to forge the seal of the CDPO on the body of the letter. It is well settled that the allegation of fraud can only succeed upon submission of acceptable proof. 8. Reading of the impugned order reveals that the appellate authority has simply referred to the stand taken by the CDPO without in the least referring to the contentions of the petitioner accepting that she has performed her duties till 01.01.2019 and submitted her joining report on 12.07.2019. The appellate authority has not delved deep into the matter to ascertain whether the contention of the petitioner had any factual basis or not. That apart, it has been straight away held that she had submitted forged documents of way bill on 08.11.2018 without any specific finding as to how the said document was revealed to be forged. 9. Another important aspect that strikes to the mind is that this Court in the earlier writ application directed the Sub- Collector to dispose of the representation of the petitioner but the Sub-Collector in his detailed order has given several findings relating to the performance of the petitioner and basing on the report of one Damayanti Jena, the Supervisor. Page 9 of 12 This amounts to exceeding the brief as the issue involved was unauthorised absence of the petitioner but the Sub-Collector travelled much beyond to render findings on alleged misconducts committed by the petitioner solely basing on the reports of the Supervisor, which incidentally were never confronted to the petitioner. Further, no enquiry appears to have been conducted to prove the veracity of the allegations levelled against the petitioner. 10. From the foregoing narration therefore, it is evident that the matter was dealt with in the most slipshod and haphazard manner by the concerned authorities including the appellate authority. No serious attempt was made to ascertain the whereabouts of the petitioner while issuing the repeated show cause notices and even the newspaper publication. Fact remains that there is proof of the petitioner’s treatment from January to June, 2009 in a hospital at Rourkela, which cannot be negatived in any manner whatsoever. There is therefore, a valid and justified reason for the petitioner remaining absent from her duties during such period. As regards her absence from September, 2008 till 01.01.2019, no material has been Page 10 of 12 placed before this Court in support of such allegation. While it is true that the petitioner’s long absence may have adversely affected the work of the Anganwadi Centre, yet any action taken adverse to the interest of the petitioner can only be in consonance with law. As already hereinbefore, the petitioner was visited with the extreme penalty of disengagement without any clear-cut finding of her alleged guilt. Even the order of disengagement was never proved to have been served upon her. Since this Court has prima facie found that there is proof of the petitioner’s leave applications being received by the Supervisor and the CDPO, it cannot be conclusively held that she had remained unauthorisedly absent. 11. From a conspectus of the facts and the contentions raised by the parties this Court is of the considered view that the impugned order passed by the appellate authority in rejecting the appeal of the petitioner cannot be sustained in the eye of law. Consequently, the advertisement issued pursuant to such order cannot also be sustained. The petitioner is held entitled to be reinstated in her former post. However, she Page 11 of 12 admittedly not having rendered any work to the establishment from 01.01.2019, will not be entitled to any back wages. 12. In the result, the writ application is allowed. The impugned order under Annexure-4 and the advertisement under Annexure-5 are hereby quashed. The authorities are directed to reinstate the petitioner in her former post within two weeks from the date of production of certified copy of this order. It is made clear that the petitioner shall not be entitled to any back wages for the period from 01.01.2019 till the date of her reinstatement but such period shall be notionally counted for the purpose of continuity in service. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 9th October, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Oct-2024 11:18:53 Page 12 of 12
Arguments
Heard Mr. Manas Kumar Chand, learned counsel for the petitioner and Mr. A.R. Dash, learned Addl. Government appearing for the State. 5. Mr. Chand would argue that the petitioner submitted leave application on 01.01.2019, which was duly received by the CDPO and the Supervisor by endorsing their signatures on the body of the application. Mr. Chand has referred to copies of the said letters enclosed as Annexures- 7 and 8 to the affidavit filed by the petitioner on 10.09.2024. He further submits that the petitioner was admitted in a hospital at Rourkela from Page 5 of 12 04.01.2019 for test tube procedure. She remained in Rourkela as the treatment was in progress and ultimately came back to join on 12.07.2019. Therefore, according to Mr. Chand, it is but natural that show cause notices issued at her village address could not have been received by her. That apart, the order of disengagement dated 09.08.2019 was never served upon her. This is therefore, a case where punitive action was taken against the petitioner without granting any opportunity of hearing to her. The appellate authority has not considered all these aspects in its proper perspective. 6. Per contra, Mr. A.R. Dash, learned Addl. Government Advocate would argue that repeated notices were issued to the petitioner to join in her duties, which she completely ignored. A newspaper publication was also made and therefore, it cannot be said that she was not aware of the notices issued to her. She could have availed leave by intimating her authorities but she chose not to do so. The work of Anganwadi Centre being vital to the wellbeing of the children of the locality, such long and unauthorised absence obviously cannot be condoned. The appellate authority has considered all these aspects to be Page 6 of 12 convinced about absence of merit in the appeal and therefore, rightly rejected the same. According to Mr. Dash, the impugned order does not warrant any interference by this Court. 7. Facts of the case being as narrated above, this Court finds from the documents enclosed to the writ application as well as the original personal file of the petitioner maintained in the office of the CDPO that there is evidence that the petitioner was admitted to Shanti Memorial Hospital at Rourkela on 04.01.2019 and appears to have been discharged on 12.01.2019. However, she attended the hospital on several dates thereafter such as 17.01.2019, 28.01.2019, 15.02.2019, 04.03.2019, 14.03.2019, 02.04.2019, 22.04.2019, 03.02.2019, 09.05.2019, 15.05.2019, 17.05.2019, 03.06.2019 and finally on 20.06.2019. The medical documents being filed before the appellate authority were not accepted on the ground that medical certificate was from a private clinic and as per the Government provisions, the same should have been authenticated by countersignature of CDMO, Nuapada. On what basis, the appellate authority arrived at such conclusion, has not been clarified. No such legal provision has been quoted Page 7 of 12 to justify such finding. Nonetheless fact remains that medical certificate issued by a private clinic cannot simply be brushed aside. On the other hand, it has not been held that medical certificates are not genuine or forged. As such, this Court finds that there is proof that the petitioner was under treatment in the hospital at Rourkela from 04.01.2019 to 20.06.2019. All the show cause notices excluding the ones issued on 22.10.2018 and 30.12.2018 were issued to her address in the village. The petitioner being at Rourkela obviously could not have received the notices. Similar would be the case of the so called publication as the petitioner being under regular treatment in a hospital may not have come across the same. As against the above, the petitioner has produced two documents enclosed as Annexures-7 and 8, which contain the endorsement of the Supervisor and CDPO respectively. Though it has been argued that the said documents were forged but