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In the present case, even if the petitioner was found absent from duty for which she has submitted an explanation with necessary documents, then enquiry ought to have been conducted. If after enquiry the charges are found proved, then only the punishment order ought to have been passed: HIGH COURT OF MADHYA PRADESH AT INDORE

The writ appeal is dismissed by HIGH COURT OF MADHYA PRADESH AT INDORE in the case of STATE OF MADHYA PRADESH V. SMT. NIRMALA RAWAT through HON’BLE JUSTICE VIVEK RUSIA

FACTS OF THE CASE
The facts of the case are that vide order dated 11/03/2001 the petitioner was appointed on the post of Anganwadi Worker in Anganwadi Centre, Sala (Rajukhedi), Tehsil – Manawar, District- Dhar upon recommendation of a duly constituted Selection Committee. A show-cause notice dated 22/09/2017, was issued to the petitioner calling upon her to submit an explanation over the general allegation of not residing at the headquarters, and absenteeism on the dates of inspection, within a period of three days from the date of receipt of the show-cause notice. As the petitioner was suffering from viral fever, therefore, she was on leave w.e.f. 24/09/2017 to 28/09/2017, and thereafter, she was declared fit by the registered Medical Practitioner w.e.f. 29/09/2017, therefore, on the same day i.e., 29/09/2017, she submitted her reply denying the allegations made in the show-cause notice. However, without holding any enquiry as contemplated under circular dated 10/07/2007, respondent no. 3 passed the order dated 27/09/2017. Being aggrieved by that order, the petitioner filed a writ petition before this Court i.e., W.P no. 22351/2017, which was dismissed vide order dated 19/12/2017 with the direction to the petitioner to prefer an appeal against that order. In pursuance of the directions issued by this Court, the petitioner preferred an appeal, however, the said appeal was also dismissed by the Appellate Authority vide order dated 14/08/2018. Being aggrieved by that order, the petitioner has filed the writ petition before this Court. The appellants/respondents filed the reply in the writ petition stating that the petitioner is not a government employee she was appointed on honorarium hence the service rules which apply to the government employees does not apply to the petitioners and has rightly been terminated under the clause 4-D of the appointment order and the guidelines of the circular dated 10.07.2007. The petitioner was given a show cause notice and she submitted a reply thereafter, which was not found satisfactory the services of the petitioner were terminated.

JUDGEMENT
The respondent was appointed as Aganwadi Worker on 11.03.2001. First time in her entire service she was served with show-cause notice on 22.09.2017 calling upon her to explain the allegations that she is not residing at headquarters and was absent from 24.09.2017 to 28.09.2017. According to the petitioner, she was not keeping well hence she was absent and denied that she is not residing at headquarters. This allegation could have been proved only by conducting at least a summary enquiry, whether she was ill or whether she has a valid reason for absence. She has been terminated from the service only on the basis of an enquiry conducted behind her back. Hence writ court has rightly allowed the Writ Petition, hence writ appeal sans merit and is liable to be dismissed. The circular dated 10.07.2007 provides the qualification, eligibility, mode of appointment/ selection and procedure for removal. Under this circular, the Aganwadi Workers/ Assistants are working for the last two decades without any element of permanency. This court has experienced in the number of cases that on surprise inspection if Aganwadi Worker/ Assistant is found absent or there was some negligence in respect of maintenance of register distribution of meals etc. on one or two instances in the entire service career, the competent authority after issuing the notice terminate her services. Except for termination, no other punishment is provided in the circular dated 10.07.2007. Even though the appointment is not regular appointment like Government employees but this is the only source of income for the women workers in the rural area These Aganwadi Workers/ Assistants work in the backward rural areas for the execution of beneficiaries schemes of the State government through women and child department. Therefore, after rendering service for one or two decades termination from service by issuing show-cause notice would be too harsh. The State Government should think about providing some minor or other major punishments by amending the circular dated 10.07.2007. Even if it is found that misconduct is minor but, in the circular, dated 10.07.2007 except for termination, no other punishment is there. In every service rule, there are two types of punishments minor and major and under these two broad categories other types of minor and major punishments are provided. Therefore, for these Aganwadi workers and Assistants, there should be a proportionality between misconduct and punishment. In the present case, even if the petitioner was found absent from duty for which she has submitted an explanation with necessary documents, then enquiry ought to have been conducted. If after enquiry the charges are found proved, then only the punishment order ought to have been passed. Aganwadi Workers/ Assistants can be terminated only after proving the charge after conducting an enquiry. Hence the contention of the learned Government Advocate cannot be accepted that there is no provision for conducting enquiry in the circular dated 1.07.2007. Hence in absence of following the provision, the writ court has rightly passed the impugned order and no interference is required. Accordingly, the writ appeal is dismissed.
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JUDGEMENT REVIEWED BY SHREYA NIDHI

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