Smt. Anita Sadanand Vipat Vs the State of Maharashtra through the Secretary

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ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
 WRIT PETITION NO.11080 OF 2017

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Smt.Anita Sadanand Vipat
vs.

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The State of Maharashtra

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...Respondent

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Mr.Vishwanath S. Talkute for the Petitioner
Mr.Manish M. Pabale, AGP for the respondent

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CORAM : A.S.OKA, &
 A.K.MENON, JJ.
 DATE : NOVEMBER 15, 2017

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ORAL JUDGMENT: (PER A.S.OKA,J.)

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1As the regular Court presided over by Hon'ble
Shri Justice Kemkar is unable to hear this petition,
as per the General Standing Order issued by the
Hon'ble the Chief Justice, this petition has been
assigned to this Bench.

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2Yesterday, the parties were put to notice that
the petition will be disposed of finally at the
stage of admission. The petitioner was appointed as
a Member of the Child Welfare Committee constituted
under the provisions of the Juvenile Justice (Care
and Protection of Children) Act,2000 (for short “JJ
Act of 2000”). According to the case of the
petitioner, her term was extended and ultimately
came to an end in February 2014. By a notification
dated 18th November 2014 issued under the provisions
of section 29 of the JJ Act of 2000, the State

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Government appointed the petitioner as the
Chairperson of the Child Welfare Committee (for
short “the said Committee”). The term of the
petitioner was of three years. She was appointed as
the Chairperson of the said Committee at Pune. The
Juvenile Justice (Care and Protection of Children)
Act,2015 (for short “JJ Act of 2015”) was brought
into force with effect from 15th February 2016. As a
result of coming into force of JJ Act of 2015, JJ
Act of 2000 stood repealed. By virtue of sub-section
2 of section 111 of the JJ Act of 2015, the
committees constituted under the JJ Act of 2000
continued to function. That is how the petitioner
continues to discharge the functions as the
Chairperson of the said Committee for Pune.

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3In the meeting of the Advisory Board held on
30th July 2016, a recommendation was made by the
Advisory Board to take action of suspension against
the petitioner. Accordingly, the Chairman of the
Advisory Board addressed a letter dated 2nd August
2016 to the Secretary of the Women and Child
Development Department of the State Government to
initiate action of suspension against the
petitioner. By a letter dated 4th August 2016, the
District Women and Child Development Officer, Pune
called upon the petitioner to submit her response to
what is recorded in the minutes of the meeting dated
30th July 2016 of the Advisory Board. It appears
that by a communication dated 26th October 2016, the
Deputy Commissioner (Child Development) of the
Directorate of Women and Child Development of the

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State Government informed the Deputy Divisional
Commissioner of Women and Child Development
Department, Pune that he has constituted a committee
headed by the Deputy Divisional Commissioner (Women
and Child Development) and two Project Officers
working on child development projects at Dapodi-
Bopodi and Shivaji Nagar, Pune. It appears that on
18th August 2017, a notification was issued by the
State Government on the basis of the report of the
Inquiry Committee recording that the appointment of
the petitioner has been brought to an end. A
communication to that effect was issued to the
petitioner on 16th September 2017 by the Incharge
District Women and Child Development Officer. It is
this action of the State Government which is
impugned in this petition.

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4There is a reply filed by Ms Smita Dattatray
Nivatkar, the Deputy Secretary, Women and Child
Development Department of the State Government. It
deals with the contention raised in the petition
that the appointment of the petitioner was
terminated only on the basis of the recommendation
of the Advisory Board. It was contended in the
reply that an Inquiry Committee under the provisions
of sub-section 7 of section 27 of the JJ Act of 2015
was constituted and Inquiry was made by the said
Committee. It is stated that the District Advisory
Committee has merely taken cognizance of the
complaints against the petitioner. It is contended
that the Commissioner, Women and Child Development
at Pune was directed to appoint an Inquiry Committee

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under the Chairmanship of the Divisional Deputy
Commissioner. It is contended that the petitioner
filed her written say and defended the same before
the Committee.

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5Though the report of the Inquiry Committee is
not annexed to the affidavit-in-reply, the learned
AGP has produced for the perusal of the Court a file
which contains the report of the Inquiry Committee.

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6The first submission of the learned counsel for
the petitioner is that entire action is at the
behest of the Advisory Board which has no
jurisdiction to take cognizance of the complaints
against the petitioner. The second submission is
that the Inquiry Committee has not been constituted
by the State Government but by the Divisional
Deputy Commissioner of the Women and Child
Development Department. Thirdly, it is submitted
that out of three members, two members were the
Project Officers who cannot said to be of the rank
which is superior to the Chairperson of the said
Committee considering the status of the Committee
and its members. The learned AGP submitted that in
any event, the term of the petitioner expires on 17th
November 2017. Secondly, he submitted that the
petitioner has participated in the Inquiry and that
the Inquiry Committee found the petitioner guilty of
misuse of the powers. The learned counsel for the
petitioner invited our attention to the fact that
though against two other Members of the Committee,
offences under the Prevention of Corruption Act,1988

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have been registered, no action has been taken
against both of them.

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7We have carefully considered the submissions.
We have perused the affidavit-in-reply and the file
produced by the learned AGP. Under section 27 of
the JJ Act of 2015, sub-section 9 lays down that the
Committee shall have all the powers conferred by the
Code of Criminal Procedure,1973 on the Metropolitan
Magistrates or the Judicial Magistrates (First
Class), as the case may be. Thus, the Committee
discharges judicial functions under the provisions
of the JJ Act of 2015. Similar were the provisions
of the JJ Act of 2000.

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8What is material for consideration is sub-
section 7 of section 27 of the JJ Act of 2015 which
reads thus:

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“27(7). The appointment of any member of the Committee shall be terminated by the State Government after making an inquiry, if

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i. he has been found guilty of misuse of power vested on him under this Act;

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ii. he has been convicted of an offence involving moral turpitude and such conviction has not been reversed or he has not been granted full pardon in respect of such offence;

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iii. he fails to attend the proceedings of the Committee consecutively for three months without any valid reason or he fails to attend less than three-fourths of the sittings in a year.”

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9Thus, the power to terminate the appointment of
any Member of the Committee vests in the State
Government. Termination can be on one of the three
grounds specified in sub-section 7. The action of

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termination is to be taken only after an Inquiry is
held by the State Government.

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10As far as JJ Act of 2015 is concerned, as of
today, there is no rule which governs the Inquiry.
Perusal of the file shows that in the meeting of the
Advisory Board of District Pune held on 30th July
2016, a recommendation was made to the State
Government to initiate action of suspension against
the petitioner. The recommendation was communicated
by the Secretary of the Advisory Board to the State
Government. There is a note put up by the Section
Officer of the Women and Child Development
Department on 17th September 2016 which refers to the
recommendation of the Advisory Board. It also
records that two other Members of the said Committee
were arrested while accepting bribe. There is no
specific decision recorded of authorising either to
the Divisional Commissioner or the Divisional Deputy
Commissioner to constitute an Inquiry Committee or
to make appointment of the members of the Inquiry
Committee. The second note which is on record is of
31st May 2017 which refers to the report of the
Committee headed by the Divisional Sub Commissioner
and two Project Officers.

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11However, perusal of the file shows that there
were letters addressed by the Chairperson of the
District Advisory Board to various Authorities of
the State Government including the Divisional
Commissioner. It appears that on 20th September
2016, a letter was addressed by the Desk Officer of

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the Women and Child Development Department of the
State Government to the Commissioner of the Women
and Child Development Department, Pune by which the
Divisional Commissioner was informed to constitute a
Committee headed by the Divisional Deputy
Commissioner. There is nothing to show that a
decision as aforesaid was taken by the State
Government. There is no decision on record of the
State Government authorising the Divisional
Commissioner to nominate two Members of the
Committee headed by the Divisional Deputy
Commissioner. As noted earlier, two other members
of the Committee are the Project Officers. As
stated earlier, there is no decision taken by the
State Government authorising either the Divisional
Commissioner or the Divisional Deputy Commissioner
to appoint two members of the Committee. Therefore,
it is impossible to accept the submission that the
Inquiry Committee was constituted by the State
Government or that the State Government validly
delegated its powers to constitute Inquiry Committee
either to the Divisional Commissioner or to the
Divisional Deputy Commissioner.

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12For taking action of removal under sub-section
7 of section 27, an Inquiry has to be held by the
State Government. Therefore, it was necessary for
the State Government itself to appoint an Inquiry
Committee which has not been done in the present
case. It appears from the file that the report of
the Inquiry Committee was placed along with a note
before the State Government and action of the

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removal of the petitioner was approved by the
Hon'ble Minister.

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13There is one more aspect of the matter.
Perusal of the report of the Inquiry Committee shows
that in the concluding part, it is merely observed
that as the Members of the various Committees are
indulging in fights and are often complaining to the
Divisional Commissioner, the time of the Divisional
Commissioner is wasted in dealing with the said
complaints. That is the reason for removal of the
petitioner. This conclusion will not take the case
under any of the three clauses of sub-section 7 of
section 27 of the JJ Act of 2015. In any case, only
on the ground that the constitution of the Inquiry
Committee was completely illegal and the action of
removal was taken on the basis of the report of the
Inquiry Committee, the impugned order/decision will
have to be set aside. While we do that, we must
also note here that two members of the Committee
were trapped while taking bribes and an offence
under the Prevention of Corruption Act, 1988 has
been registered against them. However, as of today,
no action has been taken against both of the Members
by the State Government and it is only stated that
an Inquiry is in progress.

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14While we set aside the action of the State
Government, we must note here that we have made no
adjudication on the correctness allegations made
against the petitioner. Needless to add that if the
petitioner applies for re-appointment, the concerned

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Authority will have to take into consideration the
allegations which have been made against the
petitioner for ascertaining the fitness of the
petitioner. We may also note that the term of the
petitioner as the Chairperson will come to an end on
17th November 2017 and therefore, from that day she
cannot function as the Chairperson.

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15Subject to what is observed above, we pass the
following order:

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(I) The impugned notification dated 18^th August 2017 is hereby quashed and set aside and the decision of the State Government of terminating the appointment of the petitioner as the Chairperson of the Child Welfare Committee, Pune stands set aside;

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(II) As clarified earlier, no adjudication is made into the allegations of mis-conduct made against the petitioner and all issues in that behalf are kept open;

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(III) Rule is made absolute on above terms.

Smt. Anita Sadanand Vipat v. the State of Maharashtra through the Secretary

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Smt. Anita Sadanand Vipat v. the State of Maharashtra through the Secretary

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