Jharkhand High Court
Radha Devi vs The State Of Jharkhand on 26 July, 2021
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 4332 OF 2019
Radha Devi, Wife of Sri Raju Kumar Das, Resident of - Village -
Bargadda, P.O. - Bahimar, P.S. - katkamsandi, District -Hazaribagh
... ... Petitioner
VERSUS
1. The State of Jharkhand
2. The Deputy Commissioner, Hazaribagh.
3. The Deputy Development Commissioner, Hazaribagh.
4. The District Welfare Officer, Hazaribagh.
5. The Child Development Project Officer, Katkamsandi, Hazaribagh
...... Respondents
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
For Petitioner : Mr. Ashok Kumar Singh, Advocate
For the State: Mr. Sarabil Ahmad, AC to SC (Mines-I)
03/26.07.2019 Heard learned counsel for the parties.
2. Petitioner has assailed the order of termination issued vide memo
no. 403, dated 22.06.2018, issued by the Child Development Project
Officer, Katkamsandi, Hazaribagh (Respondent No. 5) whereby she has
been removed from the post of Aanganbari Sevika for the centre
Bargadda-III (Code No. 125), without giving any opportunity of hearing or
without issuing show-cause or notice. Petitioner has further prayed for
quashing of letter no. 725, dated 07.06.2018, issued by the District Social
Welfare Officer (issued in continuation of memo no. 403, dated
22.06.2018), whereby a decision has been taken to select the new Aangan
Bari Sevika through Aam Sabha.
3. Case of the petitioner as has been delineated in the writ petition is
that on 06.06.2007, pursuant to the proceeding of Aam Sabha and
satisfaction of the Selection Committee, petitioner was selected as an
Aanganbari Sevika for the Centre Bargadda-III and continued as such to
the satisfaction of all. While petitioner was discharging her duties as
Aanganbari Sevika, she was served with a letter issued vide Memo No.
403, dated 22.06.2018, mentioning therein that upon recommendation, she
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has been removed from the post of Aanganbari Sevika for the Centre
Bargadda-III and has been further directed to immediately give charge
including registers and documents to Smt. Rekha Devi, Aanganbari
Sevika, Centre - Bargadda-01.
4. Being aggrieved, petitioner also sought information under Right to
Information but she was merely served papers regarding her termination.
Thereafter, petitioner has come to know about the letter dated 04.12.2017,
issued by the Senior Officer, Katkamsandi whereby direction has been
made to the Child Development Project Officer, Katkamsandi to show-
cause the petitioner for her absent of one days on 04.12.2017 from the
Centre. However, the said enquiry was made in absence of the petitioner in
order to harass her. The Child Development Project Officer, Katkamsandi,
without giving show-cause to the petitioner made a proposal and sent to
the District Social Welfare Officer, Hazaribagh. After the said proposal
sent by the Child Development Project Officer, Katkamsandi to the
District Social Welfare Officer, Hazaribagh, vide memo no. 731, dated
12.12.2017, a letter vide memo no. 728, dated 07.06.2018 was issued by
the District Social Welfare Officer, Hazaribagh and a direction was given
to the Child Development Project Officer, Katkamsandi to remove the
petitioner from her services and was further directed to make a fresh
selection. It is case of the petitioner that though the respondents claim that
there was several surprised visit by the superior authorities and show-
cause had been issued, but the authorities were satisfied by the reply of the
petitioner and no action had been taken against her. It is case of the
petitioner that without giving any opportunity of hearing or without
issuance of any show-cause notice, she has been terminated and another
Aam Sabha has been recommended to select another person as Aanganbari
Sevika, petitioner has knocked door of this Court.
5. Mr. Ashok Kumar Singh, learned counsel appearing on behalf of the
petitioner strenuously urges that the impugned orders are not sustainable in
law as the same has been issued in complete contravention of the
principles of natural justice. The respondents, without initiation of any
proceeding and without issuance of any show-cause or notice, have issued
the order of termination. Learned counsel further urges that the impugned
orders are cryptic, capricious and non-speaking and the same are not
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tenable in the eyes of law. The reasons have been assigned and
supplemented in the counter affidavit, which are not mentioned in the
impugned order and on that score also, the writ petition deserves to be
interfered. Learned counsel further places heavy reliance on the
Constitutional Bench Judgment passed in the case of Sirsi Municipality by
its President Sirsi Vs. Cecelia Kom Francis Tellis reported in (1973) 1
SCC 409 and submits that the respondents cannot overlook the settled
proposition of law and harass the petitioner.
6. Mr. Sarabil Ahmad, learned counsel appearing for the respondents -
State vehemently opposes contention of the learned counsel for the
petitioner and submits that petitioner was a habitual absentee and was
found in dereliction in duties. On several occasions, it was found that
petitioner was not present on the spot. Though it was the responsibility of
the petitioner to look after the Aanganbari Centre but she was always
found to be missing there. Petitioner has rightly been removed on the
ground of dereliction of duty. Earlier also show-cause were issued to the
petitioner and her services was found to be not satisfactory and as such,
impugned order of termination has been issued followed by the another
letter to appoint another person to run the centre. Learned counsel further
argues that the writ petition itself is not maintainable as petitioner has
alternative remedy to move for Appeal before the concerned Deputy
Commissioner.
7. Be that as it may, having gone through rival submissions of the
parties, this Court is of the considered view that case of the petitioner
needs interference. Petitioner has been subjected to termination without
following the principles of natural justice. The respondents, without giving
hearing and opportunity to represent her case, have snatched her livelihood
and have passed the impugned order of termination followed by another
letter for appointment of another Aanganbari Sevika by holding Aam
Sabha. The reasons have been assigned for the first time in the counter
affidavit, which cannot be allowed. It is settled principles of law that the
reasons cannot be assigned or supplemented in the counter affidavit and
the same has to be mentioned in the impugned order itself. The
respondents have tried to improve their case by way of counter affidavit,
which is not permissible in the eyes of law in view of the Judgment passed
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in the case of Mohinder Singh Gill Vs. Chief Election Commissioner
reported in (1978) 1 SCC 405. The impugned order being cryptic,
capricious and non-speaking, cannot be improved by the reasons stated in
the counter affidavit. In this regard, it is relevant to quote para-8 of the
celebrated Judgment of the Hon'ble Apex Court in the case of Mohinder
Singh Gill (Supra):
"8. The second equally relevant matter is that when a statutory
functionary makes an order based on certain grounds, its validity
must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the beginning may, by the
time it comes to court on account of a challenge, get validated by
additional grounds later brought out. We may here draw attention
to the observations of Bose, J. in Gordhandas Bhanji [Commr. of
Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16] :
"Public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of explanations
subsequently given by the officer making the order of what he
meant, or of what was in his mind, or what he intended to do.
Public orders made by public authorities are meant to have
public effect and are intended to affect the actings and
conduct of those to whom they are addressed and must be
construed objectively with reference to the language used in
the order itself."
Orders are not like old wine becoming better as they grow older."
8. In view of aforesaid decision also, a non-speaking order remains a
non-speaking order, even if reasons have been given in the counter
affidavit. There is no show-cause notice and no inquiry has been
conducted and no opportunity of being heard has been given to the
petitioner, what are the complaints and what are the allegations, was even
not known to the petitioner, otherwise, petitioner would have given reply
of all those allegations. Without any show-cause notice and without
assigning any specific reasons in the impugned order, services of the
petitioner could not have been put to an end
9. The contention of Mr. Sarabil Ahmad, learned counsel appearing for
the State that the writ petition is not maintainable, is not accepted to this
Court. The Hon'ble Supreme Court in the case of Whirlpool Corporation
Vs. Registrar of Trade Marks, Mumbai and others reported in (1998) 8
SCC 1 has clearly observed in para-14 and 15 as under
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14. The power to issue prerogative writs under Article 226 of
the Constitution is plenary in nature and is not limited by any
other provision of the Constitution. This power can be exercised
by the High Court not only for issuing writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and
certiorari for the enforcement of any of the Fundamental Rights
contained in Part III of the Constitution but also for "any other
purpose.
15. Under Article 226 of the Constitution, the High Court,
having regard to the facts of the case, has a discretion to
entertain or not to entertain a writ petition. But the High Court
has imposed upon itself certain restrictions one of which is that
if an effective and efficacious remedy is available, the High
Court would not normally exercise its jurisdiction. But the
alternative remedy has been consistently held by this Court not
to operate as a bar in at least three contingencies, namely,
where the writ petition has been filed for the enforcement of any
of the Fundamental Rights or where there has been a violation
of the principle of natural justice or where the order or
proceedings are wholly without jurisdiction or the vires of an
Act is challenged. There is a plethora of case-law on this point
but to cut down this circle of forensic whirlpool, we would rely
on some old decisions of the evolutionary era of the
constitutional law as they still hold the field."
10. The issue is now no more resintegra. It has been held that if an order
is passed in breach of rules of natural justice or without jurisdiction or
there is patent illegality, the writ court would exercise its jurisdiction of
review under Article 226 of the Constitution of India.
11. Accordingly, the impugned order of termination issued vide memo
no. 403, dated 22.06.2018, issued by the Child Development Project
Officer, Katkamsandi, Hazaribagh as also the letter no. 725, dated
07.06.2018, issued by the District Social Welfare Officer (issued in
continuation of memo no. 403, dated 22.06.2018), warrants interference
and accordingly, the same are hereby quashed. The Deputy Development
Commissioner, Hazaribagh (Respondent No. 3) is directed to reinstate the
petitioner to the post of Aanganbari Sevika within a period of three weeks
from the date of receipt/ production of a copy of this order.
12. The writ petition stands allowed.
(Dr. S.N. Pathak, J.)
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