1. The petitioner was appointed as Anganwadi Worker on 22-9-97. She is assailing the order of her removal without issuance of show-cause notice or opportunity of hearing issued by Chief Executive Officer, Janpad Panchayat.
2. The petitioner was appointed after following due selection process as Anganwadi Worker as per order dated 24-9-97 Annexure P-3. She was working at Anganwadi Centre, Udotpura. Petitioner submits that her removal was ordered without issuance of show-cause notice, without conduct of any enquiry, charges were not informed and outrightly she was given the order of removal. Petitioner further submits that Annexure P-6, memo dated 29-10-96. In para 2 of the said memo as contained in Annexure P-6 the procedure for removal of Anganwadi Workers and Assistants according to which it is necessary that if any Gram Panchayat is aggrieved by the functioning of Anganwadi Worker and Assistant, it has to pass a resolution and send it to the Project Officer and thereupon the Project Officer either himself or through Supervisor has to get the enquiry done into facts within two weeks from the date of receipt of resolution of Gram Panchayat and make a recommendation of Janpad Panchayat. Without recommendation of Project Officer, Janpad Panchayat cannot pass an order removing Anganwadi Worker/Assistant. In case any recommendation is made on any of the grounds by the Departmental Authority, same procedure has to be followed and the recommendation has to be sent to Janpad Panchayat.
3. In the return filed by respondent Nos. 1, 2 and 4, it is contended that resolution of Gram Panchayat is not necessary as Project Officer can make a recommendation to Janpad Panchayat. The petitioner was not properly discharging the duties on an inspection held on 12-1-2001 it was found no children were present, attendance was also not properly marked and it was inferred that Anganwadi Centre was not properly running. Attendance of pregnant and lactated women was not filled after 3-1-01 and corn soya blend food was not properly distributed. She was not discharging duties properly, as such removal was ordered.
4. The learned counsel for the petitioner submits that the impugned order is illegal and in violation of the principle of 'audi alteram partem'. In case there were any charges against the petitioner, an enquiry should have been conducted consistingly in accordance with principles of natural justice.
5. Learned counsel for the State Shri J.D. Suryavanshi submits that an enquiry was conducted, an inspection was made and removal was ordered on such an enquiry. He has further submitted that spot inspection amounts to conduct of any enquiry and hence order of removal is proper.
6. Counsel for petitioner submits that no reason has been assigned for removal of the petitioner nor any show-cause notice has been issued to the petitioner and nor any opportunity of hearing has been given to the petitioner. If there were any charges against the petitioner, he ought to have been informed for adverse administrative action carrying civil consequences. In the instance case, nothing was done. No show-cause notice was issued nor any enquiry was done and no charge was framed. The principles of natural justice are inhered in every administrative action carrying adverse civil consequences. In Ku. Neelima Mishra v. Dr. Harinder Kaur Paintal and Ors. (AIR 1990 SC 1402), the Supreme Court held that the order having civil consequences should be passed consistently with the observance of principles of natural justice. They are inhered in every administrative action carrying civil consequences. The Supreme Court held as under :--
We find it difficult to accept the reasoning underlying the aforesaid law. Before we considered the correctness of the proposition laid down by the High Court we must, at the expense of some space, analyses the distinction between quasi-judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice. Where there is no such obligation the decision is called "purely administrative" and there is no third category. This is what was meant by Lord Reid in Ridge Vs. Baldwin, (1963) 2 All ER 66, 75-76:
"In cases of the kind with which I have been dealing the Board of works.... was dealing with a single isolated case. It was not deciding like a Judge in a law suit, what were the rights of the persons before it. But it was deciding how he should be treated - something analogous to a Judge's duty in imposing a penalty.... So it was easy to say that such a body is performing a quasi-judicial task in considering and deciding such a matter and to require it to observe the essentials of alt proceedings of a judicial character the principles of natural justice. Sometimes the functions of a minister of department may also be of that character and then the rules of natural justice can apply in much the same way...."
"An administrative order which involves civil consequences must be made consistently with the rule expressed in the Latin Maxim audit alteram partem. It means that the decision maker should afford to any party to a dispute an opportunity to present his case. A large number of authorities are on this point and we will not travel over the field of authorities. What is now not in dispute is that the person concerned must be informed of the case against him and the evidence in support thereof and must be given a fair opportunity, to meet the case before an adverse decision is taken."
"The shift now is to a broader notion of "fairness" or "fair procedure" in the administrative action. The administrative officers are concerned, the duty is not so much to act judicially as to act fairly. For this concept of fairness, adjudicative setting are not necessary, nor it is necessary to have lites inter parties. There need not be any struggle between two opposing parties giving rise to a "lis". There need not be resolution of lis inter parties. The duty to act judicially or to act fairly may arise in widely different circumstances. It may arise expressly or impliedly depending upon the context and considerations. All these types of non-adjudicative administrative decision making are now covered under the general rubric of fairness in the administration. But when even such an administrative decision unless it affects one's personal rights or one's property rights, or the loss of or prejudicially affects something which would judicially be called at least a privilege does not involve the duty to act fairly consistent with the rules of natural justice. We cannot discover any principle contrary to this concept."
7. In Shridhar Son of Ram Dular v. Nagar Palika, Jaunpur and Ors. (AIR 1990 SC 307), the Supreme Court has held as under :--
"The High Court committed serious error in upholding the order of the Government dated 13-2-80 in setting aside the appellant's appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner's order had been passed without affording any opportunity of hearing to the appellant, therefore, the order was illegal and void. The High Court committed serious error in upholding the Commissioner's order setting aside the appellant's appointment. In this view, orders of the High Court and the Commissioner are not sustainable in law."
8. In case of appointments which were made invalidly in Shrawan Kumar Jha and Ors. v. State of Bihar and Ors. (AIR 1991 SC 309), the Supreme Court held that it is necessary to give hearing to the employees so appointed and thereafter the services should have been dispensed with. Supreme Court held as under:--
"By an order dated November 2, 1988, the Deputy Development Commissioner cancelled the appointments of the appellants. Mr. Ashok H. Desai, learned Solicitor General appearing for the respondents have been cancelled because the District Superintendent of Education had no authority to make the appointments, it was a device of by-passing the reservation and that the conditions which are part of the appointment order were not complied with. Mr. W.R. Lalit and Mr. A.K. Ganguli, learned Sr. Advocates appearing for the appellants have controverted these allegations and have stated that all these teachers were validly appointed and they had joined their respective schools. It is not necessary to go into all these questions. In the facts and circumstances of this case, we are of the view that the appellant should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment to the appellants could be passed without complying with the rule of natural justice."
9. In Union of India and Ors. v. Jaykumar Parida, (1996) 1 SCC 441, the Supreme Court held that when an incumbent had rendered three years service, there was allegation of having secured appointment by producing false income certificate. It was held that prior opportunity of hearing is a must. In Director General of Police and Ors. v. Mrityunjoy Sarkar and Ors., AIR 1997 SC 249, the allegation was of securing the appointment on the basis of fake list of employment exchange. It was held that hearing opportunity should be provided before passing an adverse order; opportunity of representation should be afforded and thereafter speaking order should have been passed.
10. In Basudeo Tiwari v. Sido Kanhu University and Ors., AIR 1998 SC 3261, the Supreme Court held that if appointment is contrary to rules, it cannot be set aside without hearing even though rules provides that such an appointment can be terminated without notice.
11. The order Annexure P-l is thus liable to be quashed. The reinstatement to petitioner is directed along with backwages.
Cost on parties.