AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9398 OF 2005 Smt. Shanta Shankar Jangam, adult, Occ. Service, residing at Taldeo, Taluka Mahabaleshwar, Dist. Satara. ) ) ) ... Petitioner Versus 1. The Zilla Parishad, Satara, through its Chief Executive Officer, having office at Satara. ) ) ) 2. Child Development Project Officer, Integrated Child Development Service Scheme Project, at Mahabaleshwar, Taluka Mahabaleshwar, District Satara. ) ) ) ) ) ... Respondents Mr. Uday Warunjikar for the petitioner. Mr. G.C. Sawant for respondent 1. Mr. S.R. Nargolkar, A.G.P. for respondents 2 and 3. CORAM : SMT. RANJANA DESAI & SMT. ROSHAN DALVI, JJ. DATED : JANUARY 14, 2008. ORAL JUDGMENT : (Per Smt. Ranjana Desai, J.) 1. In this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged order dated 28/11/2005 AJN 2 issued by respondent 2 - Child Development Project Officer terminating her services as Anganwadi Madatnis (Assistant). 2. According to the petitioner, she was appointed to the post of Anganwadi Assistant at Anganwadi, Taluka Mahabaleshwar, District Satara on 29/6/2001. Appointment order is not annexed to the petition. It is annexed to the affidavit of Mr. G.V. Bairagi, Child Development Project Officer, Mahabaleshwar. It shows that the petitioner was appointed purely on temporary basis and her services could be terminated without any notice. 3. Termination letter dated 28/11/2005 states that the petitioner's services were terminated because according to the letter dated 24/11/2005 received from the Chief Executive Officer, Satara Zilla Parishad – respondent 1 herein, her conduct was immoral. The petitioner was, however, not served with a copy of the said letter. Being aggrieved by this action of the respondents, the petitioner has approached this court. 4. Affidavit in reply is filed by Mr. S.D. Shedge, the Child Development Project Officer. It is stated in the affidavit that the AJN 3 petitioner had illicit relations with one Sachin Sable while on duty as Anganwadi Assistant. Villagers, Sarpanch and Upsarpanch filed complaints against the petitioner before the Deputy Executive Officer and Child Development Project Officer, Satara Zilla Parishad on 19/10/2005 and 24/10/2005. Copy of the Grampanchayat's letter is annexed to the affidavit. It is further stated that Taldeo villagers called a meeting on 19/7/2004 at the Grampanchayat Office. A resolution was passed to lock the office of Anganwadi and stop sending children to Anganwadi. Copy of the resolution is annexed to the affidavit. It is further stated that information is received that in the presence of her husband, the petitioner has admitted her illicit relations with Sachin Sable and the petitioner has tendered apology before the villagers. A copy of the purported writing given by the petitioner admitting her illicit relations is annexed to the affidavit. A note allegedly written by the wife of Sachin Sable - one Suvarna Sable stating that the petitioner is having illicit relations with her husband Sachin Sable is also annexed to the affidavit. It is stated in the affidavit that considering the fact that the petitioner is having extra-marital affair with Sachin Sable which is supported by the above documents, her services have been terminated because if she is continued in the post, there AJN 4 will be adverse effect on young children. 5. Affidavit in reply is also filed by Dr. P.S. Shinde, Deputy Chief Executive Officer (C.D.) Zilla Parishad, Satara. Dr. Shinde has also stated that complaints about immoral character of the petitioner are received by the Zilla Parishad. He has also referred to the alleged admission of the petitioner that she has illicit relations with Sachin Sable and to the writing given by the wife of Sachin Sable. There is also a reference to the villagers' decision not to send children to the Anganwadi because of the petitioner. All this is stated to be justification for the termination letter issued to the petitioner. It is pertinent to note that Dr. Shinde has stated that Sachin Sable has been transferred to Water Supply Department, Patan on account of his immoral conduct and because he was involved in an extra marital affair with the petitioner. 6. Mr. G.V. Bairagi, Child Development Project Officer has filed another affidavit as a reply to affidavit in rejoinder filed by the petitioner stating that the petitioner was appointed purely on temporary basis. It is stated in her appointment order that her services could be terminated at any time without notice. Since the AJN 5 petitioner's appointment was not under any statute; since it was a purely temporary appointment on payment of honorarium, it cannot be equated with regular service. Her termination without notice, therefore, cannot be faulted. Reliance is place on the judgment of the Allahabad High Court in Sunaina Singh v. District Magistrate, 2003 III C.L.R. 760. 7. In her affidavit in rejoinder, the petitioner has stated that the statement made by the Deputy Chief Executive Officer on oath that she is having illicit relations with Sable is misleading, malafide and defamatory. It is factually incorrect and is not supported by any material. The petitioner has stated that the order of termination is a stigmatic order and, therefore, the petitioner ought to have been given a hearing. The petitioner was entitled to a show cause notice and a hearing. The petitioner has further stated that certain influential persons have compelled her family members and others to make statements against her. Those statements cannot be a ground for termination of her services. The petitioner has prayed that this arbitrary and unreasonable action of the petitioner may be quashed. AJN 6 8. Mr. Warunjikar, learned counsel for the petitioner has reiterated the averments made in the petition and in the affidavit of the petitioner. He submitted that even a temporary employee, if he is removed from service by a stigmatic order, must be given a notice and hearing. Learned counsel relied on several judgments of the Supreme Court in support of this submission. He laid stress on Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta & Ors. (1999) 3 SCC 60. 9. Learned counsel Mr. Savant who is appearing for respondent 1 submitted that the petitioner was only a temporary employee and, therefore, her services could have been terminated without inquiry. No hearing was necessary. He submitted that several complaints were received from the villagers about the petitioner's immoral character. She has admitted that she had illicit relations with Sable. In the circumstances, her termination cannot be faulted. 10. Learned A.G.P. who is appearing for respondents 2 and 3 submitted that it is true that the petitioner has not been given a AJN 7 hearing though her services have been terminated by a stigmatic order. But considering the fact that the petitioner was a temporary employee and considering the serious nature of allegations levelled against her, this court may not set aside the impugned order. He submitted that the respondents be ordered to give the petitioner a post-decisional hearing. In support of this submission, learned A.G.P. relied on the judgments of the Supreme Court in Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 597, Swadeshi Cotton Mills, etc. v. Union of India, AIR 1981 SC 818 and Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors. (1978) 1 SCC 405. To counter these judgments, Mr. Warunjikar has relied on Shekhar Ghosh v. Union of India & Anr. (2007) 1 SCC 331. 11. There is no dispute about the fact that the petitioner is a temporary employee. As per her appointment letter, her services could be terminated without any prior notice or intimation. If the services of the petitioner were simply terminated without giving any reasons, she could not have perhaps made any grievance. But in this case, the order of termination casts aspersion on the AJN 8 petitioner's character. It clearly states that the letter of Zilla Parishad, Satara dated 24/11/2005 states that the petitioner is a woman of loose moral character. Letter of Zilla Parishad dated 24/11/2005 was not served on her. In fact, no documents were served on her. Letter of Zilla Parishad, Satara, dated 24/11/2005 came on record as annexure to the affidavit of Dr. Shinde, Deputy Chief Executive Officer, Satara Zilla Parishad. It states that on perusal of letter dated 21/10/2005 addressed by Sarpanch Taldeo Grampanchayat and papers received from Grampanchayat Taldeo and letter dated 20/10/2005 received from respondent 2, it appears that the petitioner bears an immoral character and, hence, she should be removed from service. None of these documents were supplied to the petitioner. 12. In Kamal Kishore Lakshman v. Pan American World Airways Inc (1987) 1 SCC 146, the Supreme Court explained the meaning of `stigma' as follows : “According to Webster' s New World Dictionary, it (stigma) is something that detracts from the character or reputation of a person, a mark, sign, etc. indicating that something is not considered AJN 9 normal or standard. The Legal Thesaurus by Burton gives the meaning of the word to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame. The Webster' s Third New International Dictionary gives the meaning as a mark or label indicating a deviation from a norm. According to yet another dictionary, `stigma' is a matter of moral reproach.” 13. There can be no doubt that to tell a woman that she is a woman of loose moral character or to suggest that she is having an extra marital affair is casting a stigma on her character. An order of termination containing this allegation is indeed a stigmatic order. Such order brings her in disrepute. It is full of shame and disgrace. 14. The question is: Can a temporary employee, who as per the appointment letter could be removed from service by a simple letter without notice or hearing, be so removed by a stigmatic order? 15. In Dipti Prakash Banerjee's case (supra), the Supreme Court was dealing with the termination of a probationer. The order of termination was a lengthy order. It stated that the appellant's conduct, performance, ability and capacity during the whole period of probation was not satisfactory and that he was considered AJN 10 unsuitable for the post for which he was appointed. The Supreme Court considered several judgments on stigma. The Supreme Court observed that the effect which an order of termination may have on a person's future prospects of employment is a matter of relevant consideration. The Supreme Court referred to its seven Judge Bench decision in Samsher Singh v. State of Punjab (1974) 2 SCC 831 where it has observed that if a simple order of termination was passed, that would enable the officer to make good in other walks of life without a stigma. The Supreme Court also referred to Bishan Lal Gupta v. State of Haryana (1978) 1 SCC 202, where it has observed that if the order contained a stigma, the termination would be bad as “the individual must suffer a substantial loss of reputation which may affect his future prospect”. The Supreme Court also reproduced its observations in Bishan Lal' s case (supra) that an ordinary enquiry by a show cause notice might be sufficient for the purpose of deciding whether the probation could be continued but where the findings regarding misconduct are arrived at without conducting a regular departmental enquiry, then the termination order will be vitiated. In the facts before it, the Supreme Court came to a conclusion that AJN 11 the termination order was a stigmatic order and since no enquiry was conducted, it was set aside. 16. It is true that facts of that case and the present case are not identical. But the principle laid down in Dipti Banerjee's case (supra) can be made applicable here. Merely because the petitioner is a temporary employee and her services can be terminated by a simple letter as per her appointment order, she cannot be so removed by serving a stigmatic order upon her. To tell a woman that she is immoral or that she is having extra marital affair is to inflict on her a character the worst kind of stigma. She was not served with any documents on the basis of which the respondents have arrived at this conclusion. It is her case that these documents are concocted. It is her case as put before us by her counsel, that she was forced to admit that she was having an extra marital relationship with Sachin Sable. We are unable to say how far this is true. We are also unable to say how far what the respondents are saying is true. That can be decided by the respondents only after hearing her. Details of allegations are brought on record by way of affidavits and as annexures to the AJN 12 affidavits. The petitioner had no chance to meet them before termination of her service. 17. We also find no force in Mr. Nargolkar's submission that post- decisional hearing will cure the illegality. In this connection, we may refer to the judgment of the Supreme Court in H.L. Trehan & Ors. v. Union of India & Ors. (1989) 1 SCC 764 where the Supreme Court has observed that the post-decisional opportunity does not subserve the rules of natural justice. Once a decision has been taken, there is a tendency to uphold it and a representation may not yield any fruitful purpose. The Supreme Court has further observed that the authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity. In Shekhar Ghosh's case (supra), the impugned order indicated that without holding an enquiry, a finding was arrived at that the appellant's original post was of a khalasi and his lien had been cancelled. He was directed to be repatriated. Despite arriving at such a finding, a post-decisional hearing was sought to be afforded to him. The AJN 13 Supreme Court observed that a post-decisional hearing was not called for as the disciplinary authority had already made up its mind before giving an opportunity of hearing. The Supreme Court observed that such a post-decisional hearing in a type of case which was before it was not contemplated in law because the result of such hearing was a foregone conclusion. 18. The above observations of the Supreme Court are attracted to the case on hand. In this case, Grampanchayat has already passed a resolution. It is stated that the complaints of villagers have been received by the Zilla Parishad. Statement of wife of Sachin Sable is recorded. Statement of the petitioner is also stated to be on record. The proceedings are not in their infancy. In such a situation, in our opinion, post-decisional hearing is not the answer. Impugned order must be set aside. If the respondents decide to terminate the petitioner's services she must be given a proper notice. All documents must be given to her. Some independent persons must hear the petitioner and then pass an appropriate order. 19. Mr. Warunjikar then contended that the petitioner has a right AJN 14 to privacy. He relied on judgment of the Supreme Court in Sharda v. Dharmpal (2003) 4 SCC 493 where the Supreme Court has observed that with the expansive interpretation of the phrase `personal liberty' the right to privacy has been read into Article 21. He submitted that there can be no prying in a person's personal life and as long as that person does his or her duty perfectly, their personal life cannot be invaded. We do not want to express any opinion on this in this case because in the view that we are taking, it is not necessary. But we must note that in this very judgment, the Supreme Court has observed that the right to privacy in terms of Article 21 of the Constitution of India is not an absolute right and if there was a conflict between fundamental rights of two parties that right which advances public morality would prevail. 20. We must also note a very peculiar feature of this case. We have already noted that Dr. Shinde, Deputy Chief Executive Officer, Zilla Parishad, Satara has stated in his affidavit that Sachin Sable who is involved in an extra marital affair with the petitioner has been transferred from the Panchayat Samiti, Mahabaleshwar to Water Supply Department, Patan due to his immoral conduct. AJN 15 The respondents have chosen to terminate the petition's service without giving her a hearing on the ground of immoral conduct i.e. extra marital affair with Sachin Sable. Sachin Sable, however, is retained in service. He is merely transferred due to immoral conduct. We do not understand the logic behind this conduct of the respondents. Even treatment to all employees is what is expected from a good employer. 21. In the view that we are taking, we will have to set aside the impugned termination order. However, we make it clear that setting aside of the termination order does not mean that we have absolved the petitioner of the allegations levelled against her. We are not unmindful of the fact that the petitioner is working as Anganwadi Assistant. She is associated with young children who are most impressionable. We acknowledge the importance of associating persons with impeccable moral character with children. We make it clear that we have not expressed any opinion as to whether allegation levelled against the petitioner is true or not. Impugned order is being set aside as it is stigmatic and hence removal of the petitioner without hearing her violates principles of natural justice. It is not set aside on merits. AJN 16 22. Hence, we quash and set aside the impugned order dated 28/11/2005. Needless to say that the respondents will be at liberty to take action against the petitioner after serving her a proper notice and giving her all the documents on which the respondents have placed reliance. The respondents shall ensure that an independent person gives a hearing to the petitioner. 23. The petition is disposed of in the aforestated terms. [SMT. RANJANA DESAI, J.] [SMT. ROSHAN DALVI, J.]