Dismissed

Anjani Devi and Ors. v. the State of Bihar and Ors.

Patna HC3 Aug 2012CWJC/1262/2011

Case brief

AI extract

What is this about?

The Patna High Court dismissed a writ petition challenging the termination of Mamta workers appointed under a welfare scheme. The Court held that the absence of the Chairman vitiated the appointment committee meeting. While dismissing the petition against the workers, the Court directed the State to initiate proceedings against official members for procedural lapses and awarded them honorarium.

What did the court decide?

The petitioner was held entitled to honorarium for the period of work; suspension/departmental proceedings directed against official committee members.

Anjani Devi and Ors. Vs the State of Bihar and Ors. — Service and Employment | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1262 of 2011

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====================================================== Anjani Devi & Ors .... .... Petitioner/s Versus The State Of Bihar & Ors .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Pravin Kumar Verma, Adv. For the Respondent/s : Mr. Vijay Kr. Verma, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER 5 03-08-2012 Heard learned counsel for the petitioners and the State.

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The petitioners are stated to be Mamta workers appointed on contract by the State Government in the Primary Health Centre as part of a scheme for welfare of newly born children and their mothers. They were appointed by order dated 28.10.2009 under the signature of the Incharge Medical Officer-cum-Member Patient Welfare Committee, Referral Hospital, Sultanganj at Bhagalpur. Their services have been terminated on 15.12.2010 by the Civil Surgeon-cum-Member Patient Welfare Committee on the ground that an enquiry had revealed that it had not been made in accordance with the prescribed procedures in presence of the members of the Patient Welfare Committee.

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Learned counsel for the petitioners submits that under the welfare scheme the Patient Welfare Committee of a Referral Hospital consists of a Chairman and 10 other

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members. The quorum prescribed in Clause 7(xi) consists of simply majority of the members present at the meeting. The Chairman is also one of the members of the committee. If the appointment has been made by a majority of the members of the committee present as apparent from the proceeding dated 23.10.2009 when 7 of them were present, there is no illegality in the appointment. In any event, the constitution of the committee was the responsibility of the respondents and the petitioners who come from the backward Ravidas Community, largely illiterate and less weaker section of the society has nothing to do with the Constitution of the committee. They are sought to be made scapegoats for official lapses. It was lastly submitted that the impugned order was in complete violation of the principles of natural justice without hearing and opportunity of defence.

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Counsel for the State submitted that the committee meeting in which the petitioners came to be appointed was not attended by the Chairman. Under the guidelines, the presence of the Chairman was mandatory. The three member committee which enquired into the appointment heard the petitioners and considered their contentions before making recommendations.

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The petitioners were not appointed on Government posts but as Agents of the State Government for dissemination of a Welfare Scheme. They belonged to a

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Weaker Section of the Ravidas Community. The purpose of their appointment was dual, also to ameliorate their sufferings by a source of earning. But their termination shall not be tested with the same level of scrutiny as applicable to Government servants. What naturally justice shall mean will depend on the nature of the appointment and the facts of the case. There can be no straight jacket rule or principle of natural justice. Merely because the committee which appointed them or the Chairman of the committee may not have individually heard them or a formal show cause was not issued before the impugned order was passed shall not vitiate the order. A three member committee had enquired into the appointments which consisted of the Medical Officer, Primary Health Centre, Sultanganj at Bhagalpur, the Medical Officer on contract at the Referral Hospital, Sultanganj at Bhagalpur and the Block Health Manager, Referral Hospital, Sultanganj at Bhagalpur. The report signed by them dated 14.5.2010 more than adequately satisfies the Court that the petitioners had been given proper opportunity, heard, and their defence considered. Even otherwise, the written representation filed by the petitioners as appended at Annexure-8, Paragraph-5 of the same referring to the members of the appointment committee as present does not include the Chairman. The petitioners have sought to contend that one of the members of the enquiry committee, Md. Nausad Alam was present during

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their interview.

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The applicability of the doctrine of natural justice and its different connotation in different context was considered in (2012) 1 SCC 83 (Ashwin S. Mehta Vs. Union of India) holding:-

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“40. It is true that the rules of “natural justice” are not embodied rules. The phrase “natural justice” is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by any authority, irrespective of whether the power which is conferred on a statutory body or tribunal is administrative or quasi-judicial. The concept of “natural justice” implies a duty to act fairly i.e. fair play in action. As observed in A.K. Kraipak v. Union of India the aim of the rules of natural justice is to secure justice or to put it negatively, to prevent miscarriage of justice.

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42. It is thus, trite that the requirement of giving reasonable opportunity of being heard before an order is made by an administrative, quasi-judicial or judicial authority, particularly when such an order entails adverse civil consequences, which would include infraction of property, personal rights and material deprivation for the party affected, cannot be sacrificed at the altar of administrative exigency or celerity. Undoubtedly, there can be exceptions to the said doctrine and as aforesaid the extent and its application cannot be put in a straitjacket formula. The question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred; the purpose for which the power is conferred and the final effect of the exercise of that power on the rights of the person affected.”

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The only question of law that arises for consideration is whether presence of the Chairman at the selection meeting was mandatory or could their be a quorum by majority of the members present without a Chairman.

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Clause 7(vii) states that every committee meeting shall be presided by the Chairman and he shall sign the attendance register. In the event of a difference of opinion he shall have a casting vote. Clause 7(xi) provides that the quorum for a meeting shall consist of the majority of the members present. Emergency meeting could be called by the Chairman. No provision from the guidelines has been pointed out that if at a particular meeting the Chairman was not present any of the members could double as a Chairman exercising his powers. If Clause 7(vii) requires the Chairman to chair meeting, it is difficult to hold that mere presence of the majority of the members may suffice and a meeting could be held without a person in the chair. The Chairman has been specified in the guidelines as the Sub-divisional Officer. If it was a position identified by office, he could not be substituted by any member. It is therefore held that no meeting of the Patient Welfare Committee could be held in absence of the Chairman. Even if he is deemed to be a member of the committee, his presence was mandatory. The provision with regard to the quorum cannot be so loosely interpreted so as to hold that a meeting could be held in

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absence of the Chairman. To that extent, the Court finds no infirmity in the impugned order.

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The writ application also appears to be raising a larger question for consideration. The respondents with all vehemence have opposed the writ application to contend that the petitioners were appointed illegally. Their appointment was not a unilateral act. There was somebody who made the appointment. The stand of the respondents has to be taken to its logical conclusion. The Court finds substance in the submission on behalf of the petitioners that they were poor illiterate females belonging to the weaker sections of the society looking for avenues for employment to supplement their income. Without holding so, but considering for the sake of argument only that they may have made endeavours for appointment, it could not have succeeded unless there was a willing recipient.

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The question of answerability and accountability along with fixation of responsibility for illegal exercise of power, burdening the government also arises against the concerned. But, the petitioners alone cannot be at the receiving end.

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The issue of answerability and accountability for exercise of public power finds consideration in (2011) 9 SCC 354 ( Delhi Airtech Services (P) Ltd. Vs. State of U.P.):-

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“215. The concept of public accountability and performance of functions takes in its ambit, proper and

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timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State or its instrumentalities. In Centre for Public Interest Litigation v. Union of India , this Court declared the dictum that State actions causing loss are actionable under public law. This is a result of innovation, a new tool with the courts which are the protectors of civil liberties of the citizens and would ensure protection against devastating results of State action. The principles of public accountability and transparency in State action are applicable to cases of executive or statutory exercise of power, besides requiring that such actions also not lack bona fides. All these principles enunciated by the Court over a passage of time clearly mandate that public officers are answerable for both their inaction and irresponsible actions. If what ought to have been done is not done, responsibility should be fixed on the erring officers; then alone, the real public purpose of an answerable administration would be satisfied.”

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Directions are issued by the Court to the Commissioner-cum-Secretary, Department of Health to hold an enquiry with regard to the official members who constituted the Patient Welfare Committee as it appears from Item-6 to Item-11. Once the State has taken the stand before a Court on oath, it is their bounden obligation to take action against those who made the wrong appointments. The Commissioner shall ensure that immediate administrative action by way of suspension/departmental proceedings in accordance with law is initiated against the concerned within a maximum period of six weeks from the date of receipt/production of a copy of this order.

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The petitioners are held entitled to honorarium for the period that they had worked. If the State is of the opinion that it is not liable to pay due to the illegal nature of the appointment it shall be recovered from the salary of the official participating members of the Selection Committee and paid to the petitioners with the same period as indicated above.

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The writ application is dismissed with

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directions.

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P. Kumar/- (Navin Sinha, J)

Anjani Devi and Ors. v. the State of Bihar and Ors.

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Anjani Devi and Ors. v. the State of Bihar and Ors.

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