How kneejerk reaction and media trial can create havoc and ruin not only someone's career, but even life is best reflected in the instant case.
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High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 3584/2015
Reserved on: 4.9.2020
Decided on : 8.9.2020
Bimla Devi …..Petitioner
Versus
State of H.P. and ors. ….Respondents
Coram:
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge .
Whether approved for reporting?
1Yes
For the Petitioner: Ms. Tim Saran, Advocate.
For the Respondents: Mr. Ashok Sharma, A.G. with Mr. Vinod
Thakur, Addl. A.G., Buphinder Thakur
and Svaneel Jaswal, Dy.A.Gs.
(Through Video Conferencing)
_____________________________________________________________________
Justice Tarlok Singh Chauhan, Judge
How kneejerk reaction and media trial can create
havoc and ruin not only someone's career, but even life is best
reflected in the instant case.
2 The petitioner on 12.8.1986 was appointed as
Anganwadi Helper in Anganwadi Centre Karian, District Chamba.
On 11.4.2015, which happened to be a Second Saturday, one 10
year old girl 'A', who was studying in Government Primary School,
Karian, disclosed to her mother that 15 days ago, when there was
1
Whether reporters of the local papers may be allowed to see the judgment? Yes.
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holiday on Saturday and she had gone to play in Anganwadi
ground, in the evening at about 4.00 P.M. along with other
children, 'H' son of the petitioner had sexually assaulted her. She
further disclosed that said 'H' as and when got opportunity had
also committed same act with other girls 'B', 'C' and 'D'. This led
to registration of FIR No. 141/2015 against 'H' on 11.4.2015 at
Police Station, Sadar, Chamba.
3 On 12.4.2015, this news was flashed across all the
news papers. Not only this, even the Department and District
Administration had swung into action immediately and an Inquiry
Committee headed by Sub Division Officer (Civil) Chamba,
comprising of District Project Officer, President, two female
members of Child Welfare Committee, Chamba and two outreach
workers of District Child Protection Unit,Chamba, was constituted
on 12.4.2015. The Inquiry Committee had visited the spot on the
same day and conducted inquiry. During the inquiry, show cause
notice was served upon the petitioner, which was duly replied by
the petitioner. The inquiry report was submitted on 16.4.2015.
4 Besides the aforesaid inquiry, the Department also
conducted inquiry through Deputy Director (Social Justice and
Empowerment), Himachal Pradesh and in all the inquiries , it had
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come that the alleged incident had not happened in Anganwadi
Centre or during working hours and no role or dereliction of duty
was found on the part of the Anganwadi staff.
5 However, on 7.5.2015, the petitioner was served with
show cause notice regarding her termination as Anganwadi Helper.
The petitioner submitted her reply clarifying the matter with
further request to drop the notice, however, services of the
petitioner came to be terminated vide order dated 17.6.2015 and
aggrieved thereby, the petitioner has filed the instant petition for
grant of following substantive reliefs:
“1.That the impugned termination dated dated
17.6.2015(Annexure P32) may kindly be declared
unjustified,illegal, unreasonable, irrational, arbitrary and
unconstitutional and be quashed and set aside.
2. That the respondents be directed to continue the petitioner
to be posted as Anganwadi Helper in Anganwadi Centre,
Karian, District Chamba, H.P.”
6 The respondents have contested the petition by filing
reply wherein it is averred that since Anganwadi Centre was being
run in the house of the petitioner, where she was living with her
grownup children, therefore, she was required to keep regular
watch on the activities on her son and also to protect minor
children from any type of exploitation. The petitioner had failed to
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perform the duty as vigilant mother and guardian of minor
children in the Anganwadi Centre. It is further averred that in the
inquiry conducted by the respondents, it had come on record that
son of the petitioner was having easy access to Anganwadi
children, who frequently visit him and he in turn used to allure
them by offering sweets and toffee and the petitioner being an
elder woman and mother of grown up children, should have
protected the Anganwadi children and prevented the children to
visit her son during and after Anganwadi hours. The petitioner had
miserably failed to protect the children, who had become victims
of her son due to her negligence. Keeping in view seriousness and
gravity of heinous crime, which was committed in the house of the
petitioner, the services of the petitioner had been terminated after
issuing notice and providing her due opportunity to explain her
position before termination of services.
7 I have heard the learned counsel for the parties and
have also gone through the records of the case.
8 It is not in dispute that date of the incident happens to
be a holiday, i.e. Second Saturday, when the Anganwadi Centre
was closed. It has further come on record that Anganwadi Centre
was not running from the house of the petitioner as is evident from
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the report given by the DPO, Chamba (Annexure P22). In such
circumstances, can the petitioner be punished for the alleged sins
of her son?
9 There is no dispute as regards the petitioner that she
had no direct role in the alleged incident of sexual assault on
minor children and the same is otherwise evident and supported
by the various statements recorded during the course of the
inquiry. Her services appear to have been terminated only on the
ground that she failed to discharge her duty as mother, guardian,
care taker and protector.
10 According to the respondents, it was primary duty of
the petitioner to keep watch on the activities of her son as she was
aware of the fact that her son 'H' was staying at home and
calling/alluring children by distributing them sweets etc. Whereas,
record reveals that the petitioner was not at all aware of any such
alleged activities. Further allegation is that had the petitioner kept
vigil on the activities of her son 'H' and prevented children to
mingle with him, such a heinous crime, which has brought slur on
society/department, would have not taken place with periphery of
Anganwadi Centre, where little innocent children are handled with
care and motherly touch.
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11 In abstract, contention of the respondents is absolutely
correct, but when weighed with the evidence and other
circumstances on record, the same must fail as there is no
evidence on record to suggest that the petitioner had any role at
all in the entire incident.
12 As a matter of fact, it has come on record that besides
'H', other family members including two daughters and one son of
the petitioner, other persons are also residing in and around the
Anganwadi Centre and had these facts come to the notice of the
petitioner, then this Court sees no reason, why the petitioner
would not have taken adequate remedial steps/measures.
13 It would be noticed that prior to the order of
termination, the petitioner was issued a show cause notice by the
Child Development Project Officer, Mehla, to which a detailed
reply, running into 6 pages, was submitted by the petitioner,
however the CDPO without taking into consideration the reply,
proceed to terminate the services of the petitioner by observing as
under:
“Consequent upon the inquiry conducted against Smt. Bimla
Anganwadi Helper Anganwadi Centre Kariana 1.C.D.S.
Project Mehla, further notice issued vide this office letter No.
1.C.D.S. Mehla9 dated 28042015 and after going through
the contents of reply dated 16052015 submitted by her. It
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has been revealed that Smt. Bimla Anganwadi Helper
Anganwadi Centre Kariana has failed to perform her duties
properly in Anganwadi Centre Kariana, because it was the
duty of Smt. Bimla Devi Anganwadi Helper to ensure safety
of the children in Anganwadi Centre by not allowing any
outside person to enter the premises of Anganwadi Centre
but her indifferent attitude to duty resulted in infliction of
sexual abuse of girl child Shreya enrolled in Anganwadi
Centre and other children. Therefore, as per approval
conveyed by the Director Women & Child Development
Himachal Pradesh Shiml1 vide letter No.1418/2007ICDS
dated 15th June,, 2015 and provisions given in Rule 7 of
revised guidelines for the appointment of Anganwadi
Workers/Helpers under ICDS Programme in Himachal
Pradesh issued by the department of Social Justice &
Empowerment Govt. Of Himachal Pradesh vide notification
No. WLFB(14)3/87 dated 05102009, Smt. Bimla
Anganwadi Helper Anganwadi Centre Kariana 1.C.D.S.
Project Mehla, is terminated from the post of Anganwad
ì
Helper and her services is dispensed w.e.f. immediate
effect.”
14 It is well settled that disciplinary inquiry being quasi
judicial inquiry has to be held in accordance with the principles of
natural justice and the inquiry officer has a duty to act judicially.
15 In the instant case, the Inquiry Officer did not apply its
mind to the defence of the petitioner. No reason has been assigned
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why the defence of the petitioner did not appeal to him/her or was
considered not credit worthy.
16 An inquiry report in a quasijudicial inquiry must show
the reasons for the conclusion. It cannot be an ipse dixit of the
Inquiry Officer. It has to be a speaking order in the sense that the
conclusion is supported by reasons. It should all the more be so
where the quasijudicial inquiry may result in deprivation of
livelihood or attach a stigma to the character.
17 Failure to give reasons amounts to denial of justice.
Reasons are live links between the mind of the decisiontaker to
the controversy in question and the decision or conclusion arrived
at. Reasons substitute subjectivity by objectivity. The emphasis on
recording reasons is that if the decision reveals the "inscrutable
face of the sphinx", it can, by its silence, render it virtually
impossible for the Courts to perform the appellate function or
exercise the power of judicial review in adjudging the validity of the
decision. Right to reason is an indispensable part of a sound
judicial system.
18 The necessity of assigning reason has been repeatedly
emphasized by the Hon’ble Supreme Court and reference in this
regard can conveniently be made to the judgment of the Hon’ble
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Supreme Court in Kranti Associates Pvt. Ltd. and another
versus Masood Ahmed Khan and Others (2010) 9 SSC 496 ,
wherein after taking into consideration the entire law on the
subject, the position of law was summarized as under:
“47. Summarizing the above discussion, this Court holds:
(a) In India the judicial trend has always been to record
reasons, even in administrative decisions, if such decisions
affect anyone prejudicially.
(b) A quasijudicial authority must record reasons in support
of its conclusions.
(c) Insistence on recording of reasons is meant to serve the
wider principle of justice that justice must not only be done it
must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on
any possible arbitrary exercise of judicial and quasijudicial
or even administrative power.
(e)Reasons reassure that discretion has been exercised by
the decision maker on relevant grounds and by disregarding
extraneous considerations.
(f)Reasons have virtually become as indispensable a
component of a decision making process as observing
principles of natural justice by judicial, quasijudicial and
even by administrative bodies.
(g) Reasons facilitate the process of judicial review by
superior Courts.
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(h) The ongoing judicial trend in all countries committed to
rule of law and constitutional governance is in favour of
reasoned decisions based on relevant facts. This is virtually
the life blood of judicial decision making justifying the
principle that reason is the soul of justice.
(i) Judicial or even quasijudicial opinions these days can be
as different as the judges and authorities who deliver them.
All these decisions serve one common purpose which is to
demonstrate by reason that the relevant factors have been
objectively considered. This is important for sustaining the
litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial
accountability and transparency.
(k) If a Judge or a quasijudicial authority is not candid
enough about his/her decision making process then it is
impossible to know whether the person deciding is faithful to
the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and
succinct. A pretence of reasons or “rubberstamp reasons” is
not to be equated with a valid decision making process.
(m) It cannot be doubted that transparency is the sine qua
non of restraint on abuse of judicial powers. Transparency in
decision making not only makes the judges and decision
makers less prone to errors but also makes them subject to
broader scrutiny. (See David Shapiro in Defence of Judicial
Candor (1987) 100 Harward Law Review 73137).
(n) Since the requirement to record reasons emanates from
the broad doctrine of fairness in decision making, the said
requirement is now virtually a component of human rights
and was considered part of Strasbourg Jurisprudence. See
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Ruiz Torija v.Spain (1994) 19 EHRR 553, at 562 para 29 and
Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein
the Court referred to Article 6 of European Convention of
Human Rights which requires, "adequate and intelligent
reasons must be given for judicial decisions".
(o) In all common law jurisdictions judgments play a vital role
in setting up precedents for the future. Therefore, for
development of law, requirement of giving reasons for the
decision is of the essence and is virtually a part of "Due
Process".
19 In Ravi Yashwant Bhoir Vs. District Collector,
Raigad and others (2012) 4 SCC 407, the Hon'ble Supreme
Court held as under:
“38.It is a settled proposition of law that even in
administrative matters, the reasons should be recorded as it
is incumbent upon the authorities to pass a speaking and
reasoned order.
39. In Shrilekha Vidyarthi Vs. U.P.
(1991) 1 SCC 212 this
Court has observed as under: (SCC p. 243, para 36).
“36……Every State action may be informed by reason and it
follows that an act uninformed by reason, is arbitrary. The
rule of law contemplates governance by laws and not by
humour, whims or caprices of the men to whom the
governance is entrusted for the time being. It is the trite law
that ‘be you ever so high, the laws are above you’. This is
what men in power must remember, always.”
40. In LIC Vs. Consumer Education and Research Centre
(1995) 5 SCC 482 this Court observed that the State or its
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instrumentality must not take any irrelevant or irrational
factor into consideration or appear arbitrary in its decision.
“Duty to act fairly” is part of fair procedure envisaged under
Articles 14 and 21. Every activity of the public authority or
those under public duty must be received and guided by the
public interest. A similar view has been reiterated by this
Court in Union of India Vs. Mohan Lal Capoor (1973) 2 SCC
836 and Mahesh Chandra Vs. U.P. Financial Corpn.(1993) 2
SCC 279.
41. In State of W.B. Vs. Atul Krishna Shaw 1991 Supp (1)
SCC 414, this Court observed that : (SCC p. 421, para 7)
“7….Giving of reasons is an essential element of
administration of justice. A right to reason is, therefore, an
indispensable part of sound system of judicial review.”
42. In S.N. Mukherjee Vs. Union of India(1990) 4 SCC 594, it
has been held that the object underlying the rules of natural
justice is to prevent miscarriage of justice and secure fair
play in action. The expanding horizon of the principles of
natural justice provides for requirement to record reasons as
to it is now regarded as one of the principles of natural
justice, and it was held in the above case that except in
cases where the requirement to record reasons is expressly
or by necessary implication dispensed with, the authority
must record reasons for its decision.
43. In Krishna Swami Vs. Union of India (1992) 4 SCC 605,
this Court observed that the rule of law requires that any
action or decision of a statutory or public authority must be
founded on the reason stated in the order or borne out from
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the record. The Court further observed: (SCC p. 637, para
47).
“47……Reasons are the links between the material, the
foundation for their erection and the actual conclusions. They
would also demonstrate how the mind of the maker was
activated and actuated and their rational nexus and
synthesis with the facts considered and the conclusions
reached. Lest it would be arbitrary, unfair and unjust,
violating Article 14 or unfair procedure offending Article 21”.
44. This Court while deciding the issue in Sant Lal Gupta Vs.
Modern Coop. Group Housing Society Ltd.(2010) 13 SCC 336,
placing reliance on its various earlier judgments held as
under: (SCC pp. 34546, para 27).
“27. It is a settled legal proposition that not only
administrative but also judicial orders must be supported by
reasons recorded in it. Thus, while deciding an issue, the
court is bound to give reasons for its conclusion. It is the duty
and obligation on the part of the court to record reasons
while disposing of the case. The hallmark of order and
exercise of judicial power by a judicial forum is for the forum
to disclose its reasons by itself and giving of reasons has
always been insisted upon as one of the fundamentals of
sound administration of the justice delivery system, to make
it known that there had been proper and due application of
mind to the issue before the court and also as an essential
requisite of the principles of natural justice.
‘3….The giving of reasons for a decision is an essential
attribute of judicial and judicious disposal of a matter before
courts, and which is the only indication to know about the
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manner and quality of exercise undertaken, as also the fact
that the court concerned had really applied its mind’.
The reason is the heartbeat of every conclusion. It introduces
clarity in an order and without the same, the order becomes
lifeless. Reasons substitute subjectivity with objectivity. The
absence of reasons renders an order
indefensible/unsustainable particularly when the order is
subject to further challenge before the higher forum.
Recording of reasons is the principle of natural justice and
every judicial order must be supported by reasons recorded
in writing. It ensures transparency and fairness in decision
making. The person who is adversely affected must know
why his application has been rejected.”
45. In Institute of Chartered Accountants of India Vs. L.K.
Ratna (1986) 4 SCC 537, this Court held that on charge of
misconduct the authority holding the inquiry must record
reasons for reaching its conclusion and record clear findings.
The Court further held: (SCC p. 558, para 30).
“30.….In fairness and justice, the member is entitled to
know why he has been found guilty. The case can be so
serious that it can attract the harsh penalties provided by the
Act. Moreover, the member has been given a right of appeal
to the High Court under Section 22A of the Act. To exercise
his right of appeal effectively he must know the basis on
which the Council has found him guilty. We have already
pointed out that a finding by the Council is the first
determinative finding on the guilty of the member. It is a
finding by a Tribunal of first instance. The conclusion of the
Disciplinary Committee does not enjoy the status of a
‘finding’. Moreover, the reasons contained in the report by
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the Disciplinary Committee for its conclusion may or may not
constitute the basis of the finding rendered by the Council.
The Council must, therefore, state the reasons for its
finding.”
46. The emphasis on recording reason is that if the decision
reveals the “inscrutable face of the sphinx”, it can by its
silence, render it virtually impossible for the courts to perform
their appellate function or exercise the power of judicial
review in adjudging the validity of the decision. Right to
reason is an indispensable part of a sound judicial system,
reasons at least sufficient to indicate an application of mind
of the authority before the court. Another rationale is that the
affected party can know why the decision has gone against
him. One of the salutary requirements of natural justice is
spelling out the reasons for the order made, in other words, a
speaking out. The inscrutable face of the sphinx is ordinarily
incongruous with a judicial or quasijudicial performance.”
20 Adverting to the facts, no doubt, allegations against the
son of the petitioner are extremely grave and if proved in Court of
law, could lead to serious consequences,but then how and why
the petitioner be made to pay the price of misdemeanor and the
alleged acts of her son, especially when the petitioner is not
accused of abetment, conspiracy or other allegations or even made
party in the criminal case instituted against her son.
21 There is an old maxim that an accused shall be
presumed to be innocent until proven guilty and the charges must
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be proved beyond reasonable doubt. This is a part of classical
legal legacy and now so deeply entrenched in the jurisprudence of
the societies governed by rule of law.
22 Even on the date of the termination of the services of
the petitioner, status of her son was that of only an accused and
not of a convict, which distinction unfortunately has not been kept
in mind by the respondents while terminating services of the
petitioner.
23 As observed above, kneejerk reaction on the part of
the respondents being not only influenced, but prejudiced by the
media trial/reports ensured that the petitioner is shown the door.
24 Above all, the respondent have failed to realize that the
petitioner is not only a woman, but also a mother, who would have
never ever permitted anyone including her son to indulge in any of
the alleged activities for which he has been accused and is facing
trial.
25 In view of the aforesaid discussion, I find merit in the
instant petition and the same is accordingly allowed.
Consequently, the impugned termination order, dated
17.6.2015(Annexure P32) is quashed and set aside and the
respondents are directed to reinstate the services of the petitioner
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forthwith as Anganwadi Helper in Anganwadi Centre, Karian,
District Chamba and grant her all consequential benefits including
seniority, but not the honorarium for the period, she had not
actually worked. Pending application(s), if any, also stands
disposed of.
(Tarlok Singh Chauhan)
Judge
8.9.2020
(pankaj)
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