Jharkhand High Court
Kalpana Kumari vs State Of Jharkhand Through The Chief ... on 23 August, 2016
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (S) No. 2998 of 2011
...
Kalpana Kumari, W/o Sri Dhirendra Kumar Mandal, resident of village-
Rarhiya, P.O. & P.S.-Mohanpur, District-Deoghar (Jharkhand)... Petitioner
-V e r s u s-
1. The State of Jharkhand through the Chief Secretary, Govt. of Jharkhand,
Ranchi, Project Building, Dhurwa, P.O. and P.S.-Dhurwa, District-Ranchi
(Jharkhand).
2. The Secretary, Department of Social Welfare, Govt. of Jharkhand, Ranchi,
Project Building, Dhurwa, P.O. and P.S.-Dhurwa, District-Ranchi (Jharkhand).
3. The Director, Social Welfare, Jharkhand, Ranchi, Social Welfare
Directorate, Near Gol Chakkar, Dhurwa, P.O. and P.S.-Dhurwa, District-
Ranchi (Jharkhand).
4. The Deputy Commissioner, Deoghar, P.O., P.S. and District-Deoghar
(Jharkhand).
5. The Deputy Development Commissioner, Deoghar, P.O., P.S. and District-
Deoghar (Jharkhand).
6. The District Social Welfare Officer, Deoghar, P.O., P.S. and District-
Deoghar (Jharkhand).
7. Smt. Binita Kumari, W/o not known to the petitioner, the then Child
Development Project Officer, Mohanpur, P.O. and P.S.-Mohanpur, District-
Deoghar (Jharkhand) at present C/o Director, Social Welfare, Jharkhand,
Ranchi, Social Welfare Directorate, Near Gol Chakkar, Dhurwa, P.O. and P.S.-
Dhurwa, District-Ranchi (Jharkhand). ... Respondents
...
CORAM: - HON'BLE MR. JUSTICE PRAMATH PATNAIK.
...
For the Petitioner : - M/s. Anjani Kumar Verma,
Binay Kumar Sinha and Amit Kumar Verma, Advocates.
For the Respondents : - Dhananjay Kumar Dubey, Sr. S.C. I.
and Ms. Nelam Tiwary, J.C. to Sr. S.C. I.
...
11/23.08.2016In the accompanied writ application, the petitioner has inter alia prayed for quashing of order as contained in Memo no. 60 dated 6.2.2010 (Annexure-3) issued by the respondent no. 7 by which the petitioner has been informed that in pursuance of Memo No. 83 dated 03.02.2010 of respondent no. 5, the petitioner has been dismissed from services by respondent no.3 and further prayed for quashing the Memo No. 535, dated 27.08.2010 (Annexure-6/A), whereby the petitioner has been informed that the appeal preferred by the petitioner against her termination before the D.C., Deoghar has been dismissed.
2. The factual matrix sans details, in a nutshell is that the petitioner was selected on the post of Anganbari Sevika of Rarhiya Anganbari Centre in Mohanpur Block in the district of Deoghar by the General 2 Meeting of Villagers i.e. Aam Sabha in pursuance to the order passed vide Memo dated 26.05.1986 by the Child Development Project Officer, Mohanpur Block, Deoghar. Consequent upon the said selection, the petitioner has been performing her duty as Anganbari Sevika of Rarhiya Anganbari Centre in Mohanpur Block in the district of Deoghar since May, 1986 i.e. last more than 23 years uninterruptedly. The petitioner was threatened by the then C.D.P.O., Mohanpur Block, Deoghar, namely, Smt. Binita Kumari (Respondent No. 7) saying that 2-3 villagers of Rarhiya are putting pressure upon her to replace the petitioner by appointing any other lady of village- Rarhiya. Then petitioner being afraid of any illegal action by the C.D.P.O., Mohanpur Block, Deoghar (Respondent No. 7) sent a detailed representation on 23.01.2009 (Annexure-2) to the Director, Social Welfare, Jharkhand (Respondent No. 3) and prayed to take action upon the C.D.P.O., Mohanpur Block, Deoghar (Respondent No.
7). To the utter surprise and consternation, the respondent no. 7 has cancelled the selection of the petitioner vide Memo No. 60 dated 06.02.2010 (Annexure-3) in view of the Memo No. 83 dated 03.02.2010 of D.D.C., Deoghar (respondent no. 5).
Being aggrieved by the aforesaid order of termination and left with no other efficacious, alternative and speedy remedy, the petitioner has been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under article 226 of the Constitution of India for mitigating her grievances.
3. Heard Mr. Anjani Kumar Verma, learned counsel for the petitioner and Mr. Dhananjay Kumar Dubey, learned Sr. S.C. I for the respondents.
4. Counter affidavit has been filed on behalf of the respondent no. 6, repelling the contentions made in the writ application. It has been inter alia, submitted in the counter affidavit, that the petitioner was selected on the post of Anganbari Sevika of Rarhiya Anganbari Centre in Mohanpur Block in the district of Deoghar by the General Meeting of Villagers i.e. Aam Sabha in pursuance to the order passed vide Memo dated 26.05.1986 by the Child Development Project Officer, 3 Mohanpur Block, Deoghar. On the basis of the information gathered by the Sub Divisional Officer, Deoghar with regard to the centre where the petitioner was posted since long, and the functioning of the Centre was not being done in a proper way, the Sub Divisional Officer, Deoghar submitted the report vide his letter dated 15.02.2009, whereby, he recommended for explanation from the petitioner and further recommended that after asking explanation, appropriate action should be taken. After receiving the report dated 15.02.2009, the Deputy Commissioner, Deoghar vide his letter dated 18.02.2009 wrote a letter to the District Social and Welfare Officer, Deoghar and directed to take appropriate steps and in turn, District Social and Welfare Officer, Deoghar vide his Letter dated 02.04.2009 wrote a letter to the C.D.P.O., Mohanpur directing, therein to take appropriate action against the petitioner and report in that regard should be submitted. Threafter, the C.D.P.O., Mohanpur issued a letter dated 10.04.2009, asking show cause with regard to four points from the petitioner and in turn, the petitioner submitted her reply on 24.04.2009, admitting her guilt. The respondent no. 7 has cancelled the selection of the petitioner vide Memo No. 60 dated 06.02.2010 (Annexure-3) in view of the Memo No. 83 dated 03.02.2010 of D.D.C., Deoghar (respondent no. 5). In view of the aforesaid submissions, it has been contended by the learned counsel for the respondents that the writ petition is not tenable and is liable to be dismissed in limine.
5. Mr. Anjani Kumar Verma, learned counsel for the petitioner has vehemently submitted that the reasons cannot be given in the counter affidavit. The reasons must be given in the impugned order, itself. The impugned order is not giving any reason, whatsoever, against the petitioner and, therefore, subsequently filed counter affidavit is of no help to the respondents. Learned counsel for the petitioner has relied upon the decision rendered by the Hon'ble Supreme Court in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, reported in (1978) 1 SCC 405.
6. Countering impassioned submissions of the learned counsel for the petitioner, learned counsel for the respondents has drawn attention 4 of this Court to the supplementary counter affidavit filed on behalf of the respondent, wherein, it has been mentioned that the instant writ application has been filed with a prayer for quashing of order as contained in Memo no. 60 dated 6.2.2010 (Annexure-3) issued by the respondent no. 7 by which the petitioner, who is performing her duty as Anganbari Sevika of Rarhiya Anganbari Centre in Mohanpur Block in the district of Deoghar since May, 1986 i.e. last more than 23 years uninterruptedly, without disclosing any reason and merely by giving reference of the so called Memo No. 83 dated 03.02.2010 of respondent no. 5, has been informed that in pursuance of Memo No. 83 dated 03.02.2010 of respondent no. 5, the petitioner has been dismissed from services by respondent no.3. In view of the order dated 20.05.2016 and also in view of paragraph 23 of the counter affidavit, it has further been submitted that one Soni Kumari, wife of Bharat Mandal, is being appointed and working since the month of November, 2010 and the appointment letter of the said Soni Kumar is being enclosed as Annexure-A to the supplementary counter affidavit.
7. Learned counsel for the petitioner apart from assailing the impugned order of termination, on the basis of facts available on records, has also referred to the decision of this Court in the case of Dewanti Devi Vs. State of Jharkhand & Ors. as reported in 2015 (4) JBCJ 150 (HC). In the said judgment in paragraph 5 to 7 exhaustive reasons have been enumerated and the counsel for the petitioner has vehemently submitted that the case of the petitioner is squarely covered by the well reasoned order of this Court reported in case of Shanti Devi (supra).
8. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to demonstrate foundational facts and law to make out a case for interference due to the reasons stated hereinbelow : -
(i) The petitioner was selected on the post of Anganbari Sevika of Rarhiya Anganbari Centre in Mohanpur Block in the district of Deoghar by the General Meeting of Villagers i.e. Aam 5 Sabha in pursuance to the order passed vide Memo dated 26.05.1986 by the Child Development Project Officer, Mohanpur Block, Deoghar and thereafter, the petitioner has been performing her duty honestly, sincerely, diligently since May, 1986 i.e. last more than 23 years uninterruptedly to the satisfaction of the respondents.
(ii) It appears that abruptly on 6.2.2010 termination order has been passed by the Child Development Project Officer, Mohanpur, District Deoghar, which is at Annexure-3 to the memo of the petition and on close scrutiny of the impugned order (Annexure-3), it is quite apparent that no reason has been assigned in the said order that what illegality has been committed for which services of the petitioner has been terminated. The impugned order is thoroughly non-speaking and cryptic order and hence, deserves to be quashed and set aside.
(iii) On perusal of the impugned order (Annexure-3), it appears that on the direction of The Deputy Development Commissioner, Deoghar vide Memo No. 83 dated 03.02.2010, the services of the petitioner has been dispensed with. So the impugned order, prima facie appears to be illegal, since no reason has been assigned for terminating the services of the petitioner.
(iv) The impugned order of termination, vide Annexure-3 suffers from gross illegality as the principles of natural justice has not been followed nor a full fledged enquiry has been conducted by giving adequate opportunity to the petitioner to defend her case. Therefore, the so called allegations/enquiry which resulted into culmination in the termination of services of the petitioner is illegal, unsustainable and there has been gross violation of principles of natural justice.
(v) Learned counsel for the respondents has heavily relied upon the counter affidavit and the reasons given in the counter affidavit for termination of the services of the petitioner, but, all these reasons cannot be appreciated by this Court because not a single reason has been given in the impugned order at 6 Annexure-3.
(vi) A non-speaking order cannot be converted into a reasoned order by way of counter affidavit. It ought to be kept in mind by the respondent State that the order especially for termination of services of the Government employee, who is serving since long, there must be a reasoned order. If the reasons are not given in the impugned order, it cannot be supplied in the counter affidavit, otherwise, all void, illegal and nonspeaking orders will be converted into valid and speaking orders.
(vii) It has been held by the Hon'ble Supreme Court in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, reported in (1978) 1 SCC 405 in paragraph 8 as under:
"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 :
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."
In view of the aforesaid decision also, a non speaking order remains a nonspeaking order, even though reason has been given in the counter affidavit. If there is no show cause notice and no inquiry has been conducted and no opportunity of being heard has been given to the petitioner and the allegations put upon her was never known to her, otherwise, she would have given her reply of all these allegations.
79. On cumulative effect of the facts, reasons and judicial pronouncements, the impugned orders of punishment of dismissal dated 6.2.2010 (Annexure-3) issued by the Child Development Project Officer, Mohanpur (respondent no. 7) as well as the order dated 27.08.2010 (Annexure-6/A) issued by the Deputy Commissioner, Deoghar (respondent no. 7), whereby the appeal preferred by the petitioner against her termination has been dismissed, being not legally sustainable, are hereby quashed and set aside. The Child Development Project Officer, Mohanpur (respondent no. 7) is directed to pass appropriate order after thorough scrutiny of relating inter se merit of the petitioner and the subsequent appointee in place of the petitioner, namely, Soni Kumari if petitioner approaches before the authority concerned within three weeks from the date of receipt of copy of this order and thereafter Respondent No. 7 will pass order within reasonable period, preferably within a period of four weeks in view of the decision of this Court rendered in the case of Shanti Devi (Supra). The disposal of the writ application shall not preclude the respondents to take de novo action in accordance with law, if so advised.
10. Accordingly, the writ application is allowed and disposed of with aforesaid observations.
(Pramath Patnaik, J.) APK