Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19406 of 2012 ====================================================== Sharda Devi W/O Rajesh Kumar R/O Village + P.O.- Madanpur, P.S.- Ekangarsarai, District- Nalanda .... .... Petitioner Versus 1. The State Of Bihar Through The Principal Secretary Social Welfare Department, Govt. Of Bihar, Patna 2. The Director, I.C.D.S. Directorate Social Welfare Department, Bihar, Patna 3. The District Magistrate, Nalanda At Biharsharif 4. The District Programme Officer, District- Nalanda At Biharsharif 5. The Child Development Project Officer, Ekangarsarai, District- Nalanda .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Sunil Kumar Karn For the Respondent/s : Mr. Rakesh Kr Samrendra Sc21 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 6 09-05-2013 Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows: “Commanding the respondents to quash the order dated 28.06.2012 contained in Memo. No. 2609 issued under the signature of District Program Officer, Nalanda, whereby and whereunder the services of the petitioner on the post of Anganbari Sewika have been terminated.” 3. Learned counsel for the petitioner has submitted that the impugned order has been passed on the direction of the Cabinet Minister for Social Welfare Department, who, in fact, had telephonically directed the Child Development Project Officer to hold inspection of the centre of the petitioner and the resultant action therefore is initiated by malafide on the part of the 2 Authorities. He has further submitted that the impugned order even otherwise cannot be sustained inasmuch as whatever cause was shown by the petitioner in reply to the show cause notice has not at all been considered. In this regard reliance has been placed by him on an order of this Court dated 17.01.2013 passed in CWJC no. 932 of 2013 (Rinku Devi & Anr. Vrs. State of Bihar & Ors.). Counsel for the petitioner has also submitted that the impugned order has been passed by taking into account such allegation which did not form part of the show cause notice. 4. Having regard to the fact that this Court has found from the inspection report, as contained in Annexure-1, prepared by the Child Development Project Officer, Ekangarsarai, that the same had categorically referred to some instructions of the Minister, this Court had called upon the Child Development Project Officer to file an affidavit as to what instructions were received by her from the Minister. 5. A supplementary counter affidavit has been filed wherein the author of the inspection report of Manju Devi, the Child Development Project Officer, Ekangarsarai, has stated that she had received a telephonic call on 29.05.2012 from the departmental minister that there was a complaint of irregularity in the different Angan Bari Centres in Dhulgam Panchayat and in 3 view of that she had conducted sudden inspection in all the Centres of Dhulgam panchayat including that of the petitioner. 6. In view of the aforementioned stand taken by the Child Development Project Officer, this Court would find no force in the plea of the mala fide raised by the petitioner. A Cabinet Minister having received complaint about irregularity in functioning of Anganbari Centre can definitely direct the local controlling authority, normally the Child Development Project Officer, to examine regarding mal-functioning of the Centres. If, on such telephonic instruction, sudden inspections were conducted that cannot be said to be mala fide either on the part of the Cabinet Minister or on the part of the Child Development Project Officer and thus the plea of mala fide must fail. 7. There is, however, considerable merit in the next
Legal Reasoning
submission of the learned counsel for the petitioner from the show cause notice, contained in Annexure-2, issued by District Program Officer it will be found that in the printed format only three things were mentioned, namely, that when the Centre was inspected at 8.50 A.M. on 29.05.2012 the Centre was found closed and both the petitioner, Anganbari Sevika and the Sahayika were absent. Nothing more was said in the report inasmuch as all the other column in the printed format was kept vacant. The petitioner, in 4 reply to the aforesaid show cause notice, has taken a plea that on 29.05.2012 she had been directed by the Office of the Child Development Project Officer to conduct the family survey and as such she had been busy in doing that work and could reach the Centre after the schedule time of opening of the Centre. She had also taken a plea that while she was busy in the survey work she had directed the Sahaika, namely, Champa Devi, to open the Centre and start work of the centre. 8.In the impugned order, however, the said show cause notice a reply has been considered in one sentence which reads as follows: “Sevika evam sahayika Kendra se anupasthit payee gai.” 9. There is no discussion whatsoever with regard to specific plea of defense taken by the petitioner. The District Program Officer in all fairness ought to have examined the Child Development Project Officer on whose instruction the petitioner claims to have been engaged in the family survey of operation work or at least could have held the plea to be false in view of the inspection report of the Child Development Project Officer herself. There is, however, no application of mind to the specific defence of the petitioner in the order passed by the District 5 Program Officer. By now it is well settled that the principle of natural justice does get complied unless the cause shown is duly
Decision
considered in the resultant order passed by the authority. 10. There will be yet another reason to this court to hold the impugned order to be bad inasmuch as the show cause notice did not contain any other allegation save and except the petitioner being absent from duty at the centre at the time of sudden inspection by the Child Development Project Officer. There is no whisper as with regard to malfunctioning of the Centre or any irregularity of distribution of THR and yet the impugned order proceeds also on the basis that the petitioner cannot be continued in service because from the perusal of inspection report and in course of hearing it had, prima facie, appeared to the District Program Officer that both the petitioner, Anganbari Sevika and Champa Devi, Sahayika, were responsible for malfunctioning and also committing irregularity in the distribution of THR. This allegation, in fact, having been not included in the show cause notice, the District Program Officer could not have drawn any adverse inference against the petitioner on this score inasmuch as it would amount to acting on extraneous materials well beyond the scope of show cause notice. 11. In view of above, this Court also, in keeping with 6 the earlier judgment in the case of Rinku Devi (Supra) must hold the impugned order to be bad on account of violation of principal of natural justice. The impugned order dated 28.06.2012 passed by the District Program Officer, Nalanda, Annexure-5, is, accordingly, quashed. 12. The impugned order having been quashed only on the ground of violation of natural justice this Court would direct the District Program Officer to reconsider the show cause reply filed by the petitioner and also offered an opportunity of personal hearing of the petitioner. The petitioner is directed to remain present before the District Program Officer on 23rd May, 2013 and either the District Program Officer shall hear the petitioner on the same day or any other date as may be fixed by him and after hearing the petitioner also the Child Development Project Officer, the maker of the report as also the person who is said to have issued instruction of the petitioner for conducting a family survey, he would pass necessary orders within two weeks of completing the hearing. Thus, the entire exercise must be completed by the Child Development Project Officer by 30th June, 2013. In case the petitioner herself does not appear either on 23rd May, 2013 or on any other day fixed by the District Program Officer, Nalanda, for 7 the purposes of hearing, it will be also open for him (District Program Officer) to pass a fresh order in accordance with law. 13. With the aforementioned observations and directions, this writ application is disposed of. A.Ahmad/- (Mihir Kumar Jha, J)