Jharkhand High Court
Meena Hansda & Anr vs State Of Jharkhand & Ors on 22 December, 2014
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5666 of 2009
1. Meena Hansda
2. Savitri Devi ..... Petitioners
Versus
The State of Jharkhand & Others ..... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioners - Mr. A.K.Choudhary
For the Respondents - Mr. J.C to G.P-III
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9/22.12.2014In this writ petition, the petitioners have prayed for quashing the order dated 20.9.2009, passed by the Deputy Commissioner, Deoghar directing the District Social Welfare Officer, Deoghar to cancel the selection of the petitioners as Sevika and Sahaika of Charki Pahari Anganwari Centre, District-Deoghar.
2. The petitioners have also prayed for quashing the order dated 24.9.2009, passed by the Deputy Development Commissioner, Deoghar, whereby pursuant to the order dated 20.9.2009, the selection of the petitioners as Sevika and Sahaika of Charki Pahari Anganwari Centre, District-Deoghar, has been cancelled with further direction to convene a meeting of Village Level Committee for re-selection of Sevika and Sehaiika for the said Anganwari Centre, depriving the petitioners of participating in the said meeting.
3. The brief facts of the case, as has been argued on behalf of the petitioners, is that the petitioners were appointed as Sevika and Sahaika of Charki Pahari Anganwari Centre, District-Deoghar. After appointment, they had started discharging their duties without any complain from any quarter. On surprise inspection on 29.8.2009 at 11.15 A.M by the Deputy Commissioner, Deoghar, it was found that the petitioner No.1 was absent from duty on 28.8.2009 and 29.8.2009 and the petitioner No.2 was absent from duty from 20.8.2009 to 5.9.2009 without any information. A show cause notice dated 9.9.2009 was issued to the petitioners regarding their absence. The petitioners had given their reply stating the reason for their absence.
4. The petitioner No.1 had given the reason that she was suffering from Jaundice, as such she had gone outside for taking the medicine of Jaundice.
5. The petitioner No.2 had given the reason that since her son had met with an accident on 31.12.2008, after submission of application for leave to the villagers, she had rushed to Deoghar for treatment of his son, but for better treatment, she had rushed to Mumbai. It has been submitted that the Child Development Project Officer, Deoghar (Rural) without assigning any reason and without considering the reply to the show cause notice, forwarded his report to the District Social Welfare Officer, Deoghar saying that the reply submitted by the petitioners is not satisfactory. On the basis of the said report of the Child Development Project Officer, Deoghar (Rural), the Deputy Commissioner, Deoghar passed an order dated 20.9.2009, addressed to the District Social Welfare Officer, Deoghar, directing him to take action for cancellation of the selection of the petitioners. On the said direction of the Deputy Commissioner, Deoghar, the Deputy Development Commissioner, Deoghar had passed the impugned order dated 24.9.2009 cancelling the selection of the petitioners as Sevika and Sahaika.
6. Learned counsel for the petitioners has submitted that the impugned orders are not justifiable for the following reasons:
(i) The Deputy Commissioner being the appellate authority had directed the District Social Welfare Officer to cancel the selection of the petitioners. However, once the higher authority had directed, the sub-ordinate officer was duty bound to follow the same.
(ii) The Deputy Commissioner is not supposed to direct the District Social Welfare Officer to cancel the selection of the petitioners, as he is the appellate authority under the Government guideline dated 2.6.2006, but by doing so, the Deputy Commissioner had snatched statutory remedy of appeal from the petitioners.
(iii) The petitioner No.1 has been removed from service for absence of two days, whereas the Government circular dated 2.6.2006 provides that in case of continuous absence for 15 days, selection of the Anganwari Sevika may be cancelled.
Thus, merely for absence of two days, selection of the petitioner No.1 cannot be cancelled by the authorities.
(iv) Although the petitioner No.2 was absent from duty from 20.8.2009 to 5.9.2009, but she had tried to satisfy the authority concerned that her absence was not wilful and due to sudden accident of his son, she had went to Mumbai for his treatment, but the same was not considered.
(v) The authority before whom the show cause reply had been submitted, merely in one line has stated that the reply given by the petitioners has not been found to be satisfactory. The reason for the same has not been disclosed, as such it does not appear from the impugned orders as to whether the reply given by the petitioners had been considered or not.
7. It has been further submitted that along with the petitioners, one Chameli Devi had also been removed from the service of Anganwari Sevika on the ground that she was also found absent from Gidhapathar Anganwri Centre. The said Chameli Devi had preferred a writ petition being W.P.(S) No. 4802/2009 before this Court, which was dismissed by order dated 31.8.2012 of this Court. Against the said order, L.P.A No. 443/2012 had been preferred, wherein a Division Bench of this Court has set aside the order passed by the Deputy Development Commissioner on 24.9.2009. In view thereof, the petitioners are also entitled to be given the similar relief.
8. On the other hand, learned counsel for the respondents has submitted that the authorities after issuing a show cause notice and after giving an opportunity to the petitioners and after considering their reply to the show cause notice, have passed the impugned orders. The petitioners had closed the Anganwari Centre without giving prior information to the authorities, which was gross misconduct on their part. The Anganwari Centre is not supposed to remain closed, as it runs for giving benefits to the villagers. Hence, the impugned orders need no interference by this Court.
9. Heard the parties, perused the record.
10. As per the Government circular dated 2.6.2006, continuous absence for 15 days is treated to be misconduct.
11. So far as the petitioner No.1 is concerned, she was absent only for two days i.e 28.8.2009 and 29.8.2009. The impugned order of her removal from service for absence for two days is very harsh. The authority, who has passed the said order, is supposed to look into the reply given by the petitioner No.1. She had given her reply that she was suffering from Jaundice, as such she had gone to take the medicine of Jaundice, but in the impugned orders, it has nowhere depicted that the reply given by the petitioner No.1 has been considered by the authority concerned and merely in one line, it has been stated that the reply submitted by the petitioner No.1 is not found to be satisfactory.
12. When an authority issues a show cause notice, its reply cannot be said to be mere formality, rather it is bounden duty of the authority concerned to properly consider the reply given by the employee, who is going to be affected, otherwise there is no meaning of issuance of a show cause notice. The meaning of 'consideration' is very wide, which has been defined in the case of the Chairman, Life Insurance Corporation of India & Ors. Vs. A. Masilamani reported in 2013(6) SCC 530, wherein at Paragraph 19, it has been held as follows :
"19. The word "consider" is of great significance. The dictionary meaning of the same is, "to think over", "to regard as", or "deem to be". Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order ................"
13. Thus, from perusal of the enquiry report dated 11.9.2009, it appears that without properly considering the reply of the petitioner No.1, the appellate authority has come to the conclusion that her reply has not been found to be satisfactory.
14. So far as the petitioner No.2 is concerned, although she was absent from duty from 20.8.2009 to 5.9.2009, she had also tried to satisfy the authority concerned by giving explanation that due to sudden accident of his son, she had went to Mumbai for better treatment of her son.
15. From perusal of the enquiry report dated 11.9.2009, it appears that there is no reference of the reason for absence of the petitioner No.2 and in one line, it has been stated that the reply submitted by the petitioner No.2 is not found to be satisfactory.
16. After receipt of the enquiry repot, the Deputy Commissioner, Deoghar, who admittedly is an appellate authority, had directed the District Social Welfare Officer, Deoghar to cancel the selection of the petitioners and on the direction of the Deputy Commissioner, Deoghar, the Deputy Development Commissioner, Deoghar, without application of his independent mind, had passed the order dated 24.9.2009 cancelling the services of the petitioners as Sevika and Sahaika.
17. The Deputy Commissioner being the appellate authority is not supposed to give any direction, rather the appellate authority ought to have forwarded the enquiry report to the competent authority for doing needful. The Deputy Commissioner being the functionary of the State is also duty bound to follow the guideline of the Government wherein the Deputy Commissioner has been made the appellate authority and he is not supposed to direct the subordinate authority to pass any order.
18. In this case, surprise inspection was done by the Deputy Commissioner, Deoghar. Thereafter, the Child Development Project Officer, Deoghar issued a show cause notice to the petitioners regarding their absence. The Child Development Project Officer, Deoghar submitted the enquiry report to the District Social Welfare Officer, Deoghar. The Deputy Commissioner, Deoghar had directed the District Social Welfare Officer, Deoghar to cancel the selection of the petitioners. The Deputy Development Commissioner, Deoghar had followed the direction of the higher authority and without application of his independent mind, had cancelled the petitioners' selection.
19. It is general tendency of the lower authority that if any direction is given by the higher authority, the lower authority used to follow the same and any action regarding issuance of a show cause notice etc. is merely a formality. This aspect of the matter has been taken care of by the Hon'ble Apex Court in the case of V. K. Ashokan Vs. Assistant Excise Commissioner & Ors. reported in (2009) 14 SCC 85 at Paragraph 50, wherein it has been held as follows :
"50. In K.I. Shephard v. Union of India6 this Court observed:
(SCC p. 449, para 16) "16. ... It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose."
Secondly, because when an authority has already made up his mind, the formality of complying with the principles of natural justice may be held to be a nominal and sham one."
20. A Division Bench of this Court in L.P.A No. 443/2012 has also come to a definite finding that the decision taken by the authorities without considering the reply of the petitioner and merely by making statement that the reply given by the petitioner is not found to be satisfactory, is not sustainable and quashed the impugned order dated 24.9.2009.
21. In the facts and circumstances stated herein above and for the reasons aforementioned, the impugned orders dated 20.9.2009 (Annexure-4) and 24.9.2009 (Annexure-5) are not sustainable and the same are, hereby, quashed.
22. The matter is remanded to the authority concerned to consider the same afresh and pass appropriate order taking into consideration the Government guideline dated 2.6.2006 as also the order passed by a Division Bench of this Court in L.P.A No. 443/2012, after providing opportunity of hearing to the petitioners, within a reasonable period preferably within a period of six weeks from the date of receipt of a copy of this order.
23. This writ petition is disposed of in the terms indicated herein above.
S.K (SUJIT NARAYAN PRASAD, J)