1 wp521.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.521 OF 2006 Smt. Mahananda w/o Anurath Bhosale age 51 years, occupation : service, r/of Nitali, Taluka and Dist.Osmanabad. Petitioner versus The Chief Executive Officer, Zilla Parishad, Osmanabad. Respondent ------- Shri Ashish Jadhvar, Advocate, holding for Shri N.P.Patil (Jamalpurkar), Advocate for Petitioner. Shri K. J. Ghute Patil, Advocate for the Respondent. ------- Corum: Smt. Nishita Mhatre and M. T. Joshi, JJ. Date : 14th July, 2011. Judgment (Per: Smt. Mhatre, J.) 01. The present petition has been preferred to challenge the order passed by the Chief Executive Officer, Zilla Parishad, Osmanabad, on 30.8.2005, terminating the services of the Petitioner. The petitioner was appointed as an Anganwadi Karyakarti, by an order dated 23.9.1992. She joined the services pursuant to the appointment order, on 30.9.1992. This post of Anganwadi Karyakarti is provided under the scheme known as the "Integrated Child Development Scheme", ("ICDS" for short). The petitioner was posted in village Nitali, Taluka and District Osmanabad. 2 wp521.06 02. The petitioner was working as an Anganwadi Karyakarti continuously from 1992, without a break. Apparently, therefore, the authorities concerned were satisfied with the petitioner's work and behaviour and, in fact, she was rewarded for the same. However, in the year 2003, some politicians in the village allegedly attempted to remove the petitioner form the service in order to appoint another person of their choice. They failed in this attempt. Thereafter on 30.8.2005, the Chief Executive Officer of the Zilla Parishad issued the impugned order terminating the services of the petitioner. According to the petitioner, this order was issued as the Chief Executive Officer at the behest of some persons from the village. On 15.9.2005, the Sarpanch and the members of the village panchayat submitted a representation to the Chief Executive Officer to cancel the order of termination passed against the petitioner. However, that representation went unheeded. 03. The petition has been opposed by the Respondents, by filing an affidavit of the Child Development Project Officer, ICDS and additional of the Deputy Chief Executive Officer of the Zilla Parishad. According to the Respondent, since the services of Anganwadi workers are not governed by any recruitment rules, and are termed as part time honorary workers, the impugned order cannot be faulted. 04. Apparently, a show cause notice was issued on 4.6.2003, calling upon the petitioner to explain why there was no improvement in 3 wp521.06 her work, although she had been directed to change her behaviour and work for the better. Several notices, which were issued to the petitioner, are annexed to the affidavit filed by the Zilla Parishad, on 18.10.2006. 05. A writ petition is not the proper remedy available for redressal of the petitioner's grievance, in view of the judgement of the Division Bench in the case of Vidya w/o Vishnu Vanare vs. State of Maharashtra, 2011 (2) Mh.L.J. 221. The Division Bench has held that an Anganwadi karykarti is a workman as defined under section 2(s) of the Industrial Disputes Act,1947. However, we have heard this petition finally on merit, since rule has been issued in the year 2007. In our opinion, it would not be proper to relegate the petitioner to the remedy available under the Industrial Disputes Act, 1947 or Maharashtra Recognized Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("MRTU and PULP Act"), at this stage. 06. The learned counsel for the petitioner has placed reliance on the judgement of the Madhya Pradesh High Court in the case of Shashi Prabha Trivedi vs. State of M.P. 2001 (90) FLR 455, in support of his submission that an Anganwadi worker is entitled to the protection under Article 311(2) of the Constitution of India. The learned counsel further submitted that the services of the petitioner could not have been terminated without holding a departmental enquiry against her. He submitted that the petitioner had no 4 wp521.06 opportunity to defend herself against the false allegations levelled against her and, therefore, there was a breach of the principles of natural justice. 07. We have perused the impugned order, and we are of the opinion that it deserves to be set aside. The impugned order indicates that it is a punitive in nature and, therefore, ought to have preceded by an enquiry. 08. The submission of Mr. Jadhvar, the learned counsel for the petitioner, is that the judgement of the Madhya Pradesh High Court in Shashi Prabha Trivedi (supra) wherein it has been held that the benefit of Article 311 (2) of the Constitution of India would be applicable to Anganwadi workers, is squarely applicable to the present case. With respect, we are unable to agree with the view of the Madhya Pradesh High Court in this regard. It is not possible to conclude that because the ICDS is a scheme run by the Central Government, the persons working for the scheme would be civil servants and that consequently their services can be terminated only in accordance with Article 311 of the Constitution. As we have already mentioned, the Division Bench of our High Court in the case of Vidya Vanare( supra) has held that the Anganwadi helper appointed in the ICDS, is a workman within the meaning of Section 2(s) of the Industrial Disputes Act. The Court has considered the duties and functions of the Anganwadi Sevikas and has held that the ICDS is a systematic activity in which there is co- 5 wp521.06 operation between the employer and the employee. It has relied on the decision of the Supreme Court in the case of Bangalore Water Supply and Sewerage Board vs. A. Rajappa and others, 1978 SCC (L & S) 215 and held that the ICDS is not a sovereign function of the State and, therefore, is an industry within the meaning of Section 2(j) of the Industrial Disputes Act. . It has also held that in view of the decision of the Supreme Court in the case of State of Karnataka & ors. vs. Ameerbi and ors. (2007) 11 SCC 681, the Anganwadi workers do not hold any civil post and, therefore, would not be governed by the Administrative Tribunals Act. Consequently, the submission of Mr. Jadhvar that such workers would be governed by Article 311 (2) of the Constitution of India, is without merit. 09. However, as we have already noted, there has been breach of the principles of natural justice and fair-play, which are the sine-qua- non to be onserved while terminating the services of an employee. Admittedly, the employee i.e. the petitioner herein, has not been terminated for any other reason, but that which is mentioned in the impugned order dated 30.8.2005. It is apparent from the pleadings before us that although the order impugned appears to be innocuous, it has been issued as a consequence of the show cause notice and other letters issued to the petitioner, earlier. In fact, this is borne out from the affidavits filed in reply to the petition, on behalf of the Chief Executive Officer. 6 wp521.06 10. Considering the contentions of the learned counsel before us and the pleadings in the present case, in our opinion, the impugned order deserves to be set aside. Accordingly, the order is set aside. The petitioner is reinstated with continuity of service and fifty per cent of the back wages and all other consequential benefits. The back wages shall be paid to the petitioner within three months from today. 11. Petition is allowed, accordingly. Rule made absolute in the aforesaid terms. No order as to costs. (M.T. JOSHI, J.) (SMT. NISHITA MHATRE, J.) pnd/wp521.06