Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2970 of 2013 ====================================================== Aaruni Kumari W/O Late Rajesh Kumar Singh R/O Mohalla- Kali Nagar, Irki, P.O.+P.S.- Jehanabad, District- Jehanabad .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Collector, Jehanabad 3. The District Program Officer, Jehanabad 4. The Child Development Project Officer, Jehanabad .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Laxmi Narayan Das, Adv. For the Respondent/s : Mr. Prashant Kr. Choudhary ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3 22-01-2014 Since this writ application has been restored today by a separate order passed in MJC No. 1648 of 2013, this Court has also heard learned counsel for the parties. Mr. Laxmi Narayan Das, learned counsel for the petitioner, while assailing the impugned order passed by the District Programme Officer, Jehanabad and its affirmatory appellate order passed by the Collector, Jehanabad as contained in Annexure Nos. 3 & 4 respectively, has basically concentrated on the aspect that if the petitioner had taken a ground of her being unwell in her show-cause reply pursuant to the show-cause notice given to her for remaining absent from duty in course of sudden inspection held on 22.7.2011, it was imperative on the part of both Patna High Court CWJC No.2970 of 2013 (3) dt.22-01-2014 2 the authorities to at least make an enquiry before disbelieving the said plea of the petitioner. In this regard, he has also submitted that the appellate order passed by the Collector of Jehanabad district is also some sort of discriminatory order, inasmuch as, in a similar circumstance, the Collector of Jehanabad district had passed a different order in Case No. 10 of 2012 on 22.9.2012 (Annexure-6). He has also referred to the judgment of this Court in the case of Manjula Kumari & Anr. Vs. The State of Bihar & Ors. reported in 2013(1)PLJR 901 with specific reference to paragraph nos. 28, 29, 30 & 32. Learned counsel for the State, on the other hand, has submitted that the orders passed by both the authorities do contain reasons and there is also no error in their decision taking process. He has also submitted that the petitioner himself did not lead any evidence in support of her claim of illness and, therefore, there was no question of holding any further enquiry. Learned counsel for the petitioner, in reply, has submitted that there was an affidavit of the Sahaika dated 8.8.2011, which would lend support to the plea of defence taken by the petitioner. In the considered opinion of this Court, when the petitioner has herself not annexed either the show-cause notice or the show-cause reply or even the memo of appeal while filing the
Facts
Patna High Court CWJC No.2970 of 2013 (3) dt.22-01-2014 3 writ application, she cannot expect a judicial review in the form of appeal. This court, therefore, has to confine its consideration on the material on record.
Legal Reasoning
interference by this Court in a mechanical manner by setting aside the order of termination of such erring Anganbari Sevika would only lead to subversion of the success of the scheme. This Court, therefore, will refuse to do so specially when it has found no error in the decision making process while passing the impugned orders. Thus, for the reasons indicated above, this application must fail and is, accordingly, dismissed. (Mihir Kumar Jha, J) Rishi/-
Arguments
At this stage, Mr. Das has produced a copy of the show-cause reply which was filed by her before the Collector of the district on 30.7.2011. The difficulty, however, before this Court will be that a show-cause notice was actually given by the District Programme Officer and its reply was to be given by the petitioner to the District Programme Officer. In fact, she had also done so as is clearly referable from the impugned order passed by the District Programme Officer, which reads as follows:- ^^lekgj.kky;] tgkukckn A ¼ftyk izksxzke “kk[kk½ vkns”k fnukad 22-07-11 dks iwokZgu 11-00 cts ftyk inkf/kdkjh] tgkukckn }kjk vkWaxuckM+h dsUnz ,jdh if”peh Hkkx dksM la0& 202 dk fujh{k.k fd;k x;k rks lsfodk vk:.kh dqekjh vukf/kd`r :i ls vuqifLFkr ik;h xbZ A xzkeh.kksa }kjk crk;k x;k fd lsfodk tgkukckn LVs”ku ds ikl jgrh gS rFkk fu;fer :i ls dsUnz ij ugha vkrh gS A lgkf;dk }kjk gh dsUnz dk lapkyu fd;k tkrk gS A lgkf;dk }kjk Hkh bl ckr dks Lohdkj fd;k x;k A fujh{k.k ds nkSjku dsUnz ij cPpksa dh mifLFkfr ek= 12 ik;h xbZ A mifLFkr cPpksa ds fy, Hkh iks’kkgkj ugha cuk;k tk jgk Fkk] iqNus ij lgkf;dk }kjk crk;k x;k dh lsfodk }kjk iks’kkgkj miyC/k ugha djk;s tkus ds dkj.k cPpksa ds fy, iks’kkgkj ugha cuk;k tk ldk A lsfodk ls mijksDr ds laca/k esa bl dk;kZy; ds Kkikad 565 fnukad 27-07-11 ds }kjk Li’Vhdj.k dh ekax dh xbZ A lsfodk ls Patna High Court CWJC No.2970 of 2013 (3) dt.22-01-2014 4 izkIr Li’Vhdj.k dh leh{kk dh xbZ A leh{kksijkUr Li’Vhdj.k vlarks’ktud ik;k x;k A lsfodk vk:.kh dqekjh dks dsUnz ls vukf/kd`r :i ls vuqifLFkr jgus rFkk vfu;fer :i ls dsUnz lapky dk nks’kh ik;k x;k A lsfodk vk:.kh dqekjh] vkWaxuckM+h dsUnz ,jdh if”peh Hkkx] dksM la0 202 dks dsUnz ls vukf/kd`r :i ls vuqifLFkr jgus rFkk vfu;ehr :i ls dsUnz lapkyu ds vkjksi esa rRdky izHkko ls p;ueqDr fd;k tkrk gS A g0@& fo0 dq0 flUgk 05-08-2011 ftyk izksxzke inkf/kdkjh tgkukckn A Kkikad 650 ft0 izks0 tgkukckn] fnukad 5@8@2011 izfrfyfi %& cky fodkl ifj;kstuk inkf/kdkjh] tgkukckn dks lwpukFkZ ,oa vko”;d dkjZokbZ gsrq izsf’kr A izfrfyfi %& lacaf/kr lsfodk vk:.kh dqekjh] vkWaxuckM+h dsUnz & ,jdh if”peh Hkkx] dksM la0 & 202 dks lwpukFkZ izsf’kr A fo0 dq0 flUgk 05-08-2011 ftyk izksxzke inkf/kdkjh tgkukckn A** Obviously, from reading of the aforesaid order dated 5.8.2011, it becomes more than clear that the show-cause notice which was given by the District Programme Officer and whose reply is being referred to in the impugned order passed by the District Programme Officer has never been produced before this Court so as to find any error in the order of the District Programme Officer. In fact, the District Programme Officer had not only recorded his findings on the basis of the absence of the Patna High Court CWJC No.2970 of 2013 (3) dt.22-01-2014 5 petitioner in course of sudden inspection held on 22.7.2011 by the Collector of the Jehanabad district but, he had also clearly mentioned that the Sahaika had also accepted this fact that the petitioner was usually remains absent from her duty from the centre and the centre was being run to function only with the help of Sahaika. The petitioner has also not filed the alleged show- cause reply copy whereof has been produced by Mr. Das denying this aspect that the number of children present was only twelve. The allegation made against her that the food for feeding the children (Poshahar) was not found to be prepared on the date of inspection has also not been sought to be controverted by the petitioner. As a matter of fact, it was the defence of the Sahaika that she had not been given the raw materials (grains etc.) for preparation of food and as such, she had not prepared the food. In view of all these, this becomes clear that whatever plea is now being developed and taken before this Court was not raised before the District Programme Officer and at least what has been stated by the petitioner before the District Programme Officer has not been brought on record. It is this order of the District Programme Officer which was made subject matter of appeal. The appeal was before non-else but the Collector of the district. The appellate authority Patna High Court CWJC No.2970 of 2013 (3) dt.22-01-2014 6 while passing the order dated 24.4.2012 has again addressed to the issue in a graphic manner, inasmuch as, having noted the contention raised on behalf of the petitioner, he has recorded the following reasons for rejecting the case of the petitioner:- ^^U;k;ky; lekgrkZ] tgkukckn okn la0 & 20@ Mh0 ,e0 @ 2011 Jherh vk:.kh dqekjh cuke ljdkj vkns”k ;g vihy okn vk:.kh dqekjh] ifr Lo0 jkts”k dqekj flag] eq0 & dkyh uxj] bjdh] tgkukckn “kgj] Fkkuk $ ftyk & tgkukckn ds }kjk ftyk izksxzke inkf/kdkjh] tgkukckn ds vkns”k fnukad 05-08-2011 ds fo:) nkf[ky fd;k x;k gS A vihykFkhZ ds fo}ku vf/koDrk dk cgl lquk A vihykFkhZ ds fo}ku vf/koDrk dk dguk gS fd o’kZ 2007 esa vkWaxuckM+h lsfodk] vkWaxuckM+h dsUnz] if”peh dksM la0& 202 ds in ij p;u gqvk Fkk A p;u ds le; ls gh vihykFkhZ larks’kizn lsok ykHkkfFkZ;ksa dks ns jgh gS A buds fo:) dksbZ f”kdk;r ugha fd;k x;k A budk dguk gS fd fnukad 22-07-11 dks vihykFkhZ dsUnz ij x;h Fkh A nqHkkZX;o”k 9-30 cts iwokZg~u jDr lzko ,oa ihM+k ds dkj.k ;s e/kq flUgk ds uflZx gkse esa bZykt ds fy, pyh x;h Fkh A tgkWa budk bZykt fd;k x;k A budk dguk gS fd ;s fnukad 22-07-11 dks 9-00 cts rd dsUnz ij ekStwn Fkh A budk ;g Hkh dguk gS fd le;≤ ij ;s iYl iksfy;ks vfHk;ku esa “kkfey jgh gSa A budk vkxs dguk gS fd fnukad 22-07-2011 dks iks’kkgkj Hkh cu jgk Fkk A vR;f/kd ihM+k ds dkj.k vihykFkhZ dsUnz ij 11- 00 cts iwokZgu esa ugha Fkh tc ftyk inkf/kdkjh] tgkukckn ds }kjk fujh{k.k fd;k x;k A budk vkxs dguk gS fd cky fodkl ifj;kstuk inkf/kdkjh] tgkukckn ds }kjk i=kad&505 Patna High Court CWJC No.2970 of 2013 (3) dt.22-01-2014 7 fnukad 27-07-11 ds }kjk Li’Vhdj.k iwNk x;k fd D;ksa ugha vkidk p;u jn~n dj fn;k tk; ,oa D;ksa ugha iks’kkgkj jkf”k dh olwyh dj yh tk; A budk dguk gS fd Li’Vhdj.k dk tckc fnukad 30-07-11 dks fn;k x;k A fnukad 06-08-11 dks vihykFkhZ dks ftyk izksxzke inkf/kdkjh] tgkukckn ds }kjk i=kad& 650 fnukad 05-08-11 ls p;u eqDr dj fn;k x;k A vihykFkhZ vihy vkosnu Lohd`r djrs gq, ftyk izksxzke inkf/kdkjh] tgkukckn ds vkns”k dks [kkfjt djus dk vuqjks/k fd;k gS vihykFkhZ ds }kjk dsUnz ls lacaf/kr iath nkf[ky fd;k gS A vihykFkhZ ds fo}ku vf/koDrk dk cgl] vfHkys[k esa nkf[ky dkxtkr ,oa fuEu U;k;ky; ds vfHkys[k ds voyksdu ls Li’V gksrk gS fd v/kksgLrk{kjh ds }kjk fd;s x;s fujh{k.k ds le; vkWaxuckM+h lsfodk vuqifLFkr Fkha A dsUnz ij ek= 12 cPps mifLFkr Fks A dsUnz ls vuqifLFkr jgus ds laca/k esa dksbZ vkosnu dsUnz ij miyC/k ugha Fkk A lgkf;dk }kjk crk;k x;k fd lsfodk dh rch;r vpkud [kjkc gks tkus ds dkj.k os pyh xbZ Fkh A iks’kkgkj miyC/k ugha Fkk A xzkeh.kksa ds }kjk crk;k x;k fd lsfodk tgkukckn LVs”ku ls vkrh & tkrh gS A lsfodk ds vuqifLFkfr ds dkj.k dksbZ iath lgkf;dk ds }kjk izLrqr ugha fd;k x;k A vihykFkhZ dks dsUnz ls lacaf/kr lHkh iaft;ksa dks nkf[ky djus dk vkns”k fn;k x;k Fkk ijUrq buds }kjk ek= iks’kkgkj HkaMkj iath] iks’kkgkj dz; iath gh nkf[ky fd;k vU; iath buds }kjk nkf[ky ugha fd;k x;k A fuEu U;k;ky; ds vfHkys[k ds voyksdu ls Hkh Li’V gksrk gS fd vihykFkhZ ds }kjk fu;fer :i ls dsUnz dk lapkyu ugha fd;k tkrk gS ,oa vihykFkhZ dsUnz ls vukf/kd`r :i ls vuqifLFkr jgrh gS A vr% fuEu U;k;ky; ds }kjk ikfjr fnukad& 05- 08-2011 dk vkns”k fof/k lEer gS ftls cgky j[krs gq, vihy vkosnu [kkfjt fd;k tkrk gS A g0@& vLi’V g0@& vLi’V Patna High Court CWJC No.2970 of 2013 (3) dt.22-01-2014 8 lekgrkZ lekgrkZ tgkukckn A tgkukckn A Kkikad& 502@fof/k] tgkukckn] fnukad 25-4-12 Ikzfrfyfi%& vk:.kh dqekjh] ifr Lo0 jkts”k dqekj flag] eq0 & dkyh uxj] bjdh] tgkukckn “kgj] Fkkuk $ ftyk & tgkukckn dks lwpukFkZ izsf’kr A izfrfyfi%& ftyk izksxzke inkf/kdkjh] tgkukckn dks lwpukFkZ ,oa vko”;d dkjZokbZ gsrq izsf’kr A Ikzfrfyfi%& cky fodkl ifj;kstuk inkf/kdkjh] tgkukckn dks lwpukFkZ ,oa vko”;d dkjZokbZ gsrq izsf’kr A lekgrkZ tgkukckn A** It has to be kept in mind that the sudden inspection was held by non-else but the Collector himself and, therefore, he was definitely aware of the background of the case. The plea that whatever was stated by the Sahaika in her affidavit dated 8.8.2011 ought to have been believed by the Collector, could have made some impact before this Court had the said Sahaika in her affidavit denied her acceptance of the fact either with regard to the petitioner being usually absent from duty as recorded in the order of the District Programme Officer and in the show-cause notice or her denial of the fact that she was given food material and that she had not prepared the food. As a matter of fact, as the said Sahaika in her affidavit has said this fact, the findings arrived by the Collector on the basis of materials on Patna High Court CWJC No.2970 of 2013 (3) dt.22-01-2014 9 record cannot be said to be erroneous either on fact or in law. The submission of Mr. Das that the Collector had maintained two varying stands in disposing same type of appeal also does not seem to be correct. From the order of the case of one Rita Kumari relied by Mr. Das passed by the Collector on 22.9.2012, it would appear that in that case, the inspection was held at the district level committee on 12.7.2011 whereafter a show-cause notice was asked by the District Programme Officer and after considering the show-cause reply, the order of termination of service of the person concerned was passed on 29.10.2011. This order was made subject matter of appeal in Appeal Case No. 38 of 2011 and that order was set aside by the Collector on 3.1.2012 remitting the matter back. After the matter was remitted back, the District Programme Officer, Jehanabad had again issued a fresh show-cause notice and thereafter considering the show-cause notice had passed a fresh order dated 5.3.2012 reiterating his earlier order dated 29.10.2011. The complaint of the petitioner of that case was against the order passed on remand and the Collector had held that when the specific plea was raised by Rita Kumari that the report of the district level inspecting committee was wrong, the District Programme Officer ought to have held some sort of enquiry before coming to the conclusion Patna High Court CWJC No.2970 of 2013 (3) dt.22-01-2014 10 that the petitioner of that case was not doing her duty as would be apparent in the case of Rita Kumari. Her show-cause reply and the stand taken thus were altogether different and the matter, thereafter, having been examined by the Collector, it was found that the case of Rita Kumari was not properly considered. That however is not the fact of the present case wherein firstly the petitioner has not taken any such defence. As a matter of fact, even if this Court would accept that the show-cause reply filed by the petitioner before the District Programme Officer though addressed in the name of the Collector dated 30.7.2011 was one of the same nature, it would become very more clear that except that, she had taken a plea of her illness, not a word was said with regard to the absence of her duty or her usually remaining absent from duty or providing food material to Sahaika and the fault being on the part of the Sahaika in not preparing the Poshahar. In fact, such reasoned order of the Collector of the district gives cogent reasons for rejecting the pleas raised in appeal. In that view of the matter, this Court will find that the Collector of the district had committed no error in passing the order in the case of the petitioner and to that extent, it cannot be also held to be discriminatory on account of the order passed in the case of Rita Kumari. Patna High Court CWJC No.2970 of 2013 (3) dt.22-01-2014 11 Coming to the applicability of the judgment in the case of Majula Kumari (supra), this Court has to take note of the fact that the law has been laid down that even though the Anganbari Sevika may not be the government servant, the basic pre-requisite for exercise of power of removal has to be by way of adherence to the natural justice. The application of principle of natural justice will however vary on the basis of facts of each case. In the present case, as is apparent the petitioner was given a show- cause notice and its reply was considered and rejected by a reasoned order by the District Programme Officer and thereafter, when the memo of appeal was filed, the Collector who himself had conducted the inspection and had found the petitioner absent from duty as also only twelve children to be present and that too without being provided with the food (Poshahar), the order of removal of the petitioner from the post of Anganbari Sevika would require no interference of this Court. It has to be noted that all these schemes are being monitored by the Apex Court wherein a very clear view has been taken that the success of the scheme will depend not only on the presence of the children at the Anganbari Centre but also providing them with a healthy atmosphere for the remaining present in centre for at least four hours a day. Providing food in fact at the centre is only part of that scheme and, therefore, Patna High Court CWJC No.2970 of 2013 (3) dt.22-01-2014 12