Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.22486 of 2012 ====================================================== 1. Manju Devi W/O Sri Daya Kant Yadav R/O Chandpur Bangha, P.S.- Janki Nagar, Purnea 2. Khudo Devi @ Fhuho Devi W/O Sri Prayag Yadav R/O Chandpur Bangha, P.S.- Janki Nagar, Purnea .... .... Petitioners Versus 1. The State Of Bihar 2. The Secretary Department Of Social Welfare, Government Of Bihar, Old Secretariat, Patna 3. The Director Integrated Child Development Scheme Indira Bhawan, East Boring Canal Road, Patna 4. The Divisional Commissioner, Purnia Division, Purnia 5. The District Magistrate, Purnea 6. The District Programme Officer, Purnea 7. The District Welfare Officer, Purnea 8. The Child Development Project Officer, Janki Nagar, Purnea .... .... Respondents ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 10-01-2013 Heard counsel for the parties. In this writ application the petitioners have prayed for the following relief: “(i) For issuance of an appropriate writ quashing the order contained in memo no. 2039 dated 31.7.2012 issued under signature of respondent District Programme Officer by which the petitioners have been disengaged on the post of Anganbari Sevika and Anganbari Sahika. (ii) For quashing the order contained in memo no. 2876 dated 2.11.2012 passed by the respondent District Magistrate Purnea by which the appeal has been dismissed. (iii) For direction upon the respondent authorities to reinstate the petitioners on the post of Anganbari Sevika and Anganbari Sahika with all consequential benefit.”
Legal Reasoning
Patna High Court CWJC No.22486 of 2012 (2) dt.10-01-2013 2
Legal Reasoning
Mr. Sanjeev Kumar Mishra, learned counsel appearing on behalf of the petitioners, while assailing the impugned order passed by the District Programme Officer and the appellate order passed by the Collector has submitted that the extraneous materials have been taken into consideration for their engagement on the post of Anganwari Sevika/ Sahaika. In this regard he has submitted that the show cause notice was confined only to certain discrepancy found in course of inspection by the District team as with regard to functioning of Anganwari centre but the order that has been passed by the District Programme Officer has taken into account the age and physical capability of the petitioners. He has, therefore, relied on the judgment of this Court dated 20.4.2012 in C.W.J.C.No. 2905/2012 wherein a batch of writ petitions involving the similar question of removal on the post of Anganwari Sevika was considered and decided holding that there cannot be a mechanical approach in removing the Anganwari Sevika and that the show cause notice must be effective followed by a reasoned order. Learned counsel for the State is not in a position to dispute the aspect that the impugned order has been passed beyond the scope of the show cause notice but then he has submitted that there are sufficient materials to show that the petitioners were not Patna High Court CWJC No.22486 of 2012 (2) dt.10-01-2013 3 working satisfactorily and therefore, even if the extraneous material taken into consideration is ignored, the petitioners’ removal on the post of Anganwari Sevika/ Sahaika will require no interference from this Court. In the considered opinion of this Court even if the petitioners are not the Government servant and Article 311 of the Constitution of India is not to be made applicable in their cases, the doctrine of fair play and natural justice has to be followed in letter and spirit. In the present case the show cause notice given to the petitioners was as follows: “ …1‰ dsUnz ij ek= 12 cPps mifLFkr ftlesa ls ek= 03 cPps ;wfuQkeZ es a Fksa lgkf;dk vuqifLFkr ikbZ xbZ lsfodk ;wfuQkeZ esa ugha FkhA iks’kkgkj ugha cuk gqvk FkkA dsUnz ij vf/kdka”kk iath miyC/k ugha FkkA mijksDr rF;ks ls Li’V gksrk gS fd vkids }kjk dsUnz lapkyu esa mnklhurk rFkk vfu;ferrk cjrh tk jgh gSA bl lEcU/k esa vki viuk Li’Vhdj.k i= }kjk vFkok Lo;a mifLFkr gksdj fnukad 14-6-2012 dks le; 2%00 cts vijkg~u es nsA bl le; lhek ds vanj vkids }kjk Li’Vhdj.k dk tokc ugha fn;k tkrk gS] rks le>k tk;sxk fd bl lEcU/k esa vkidks dqN ugha dguk gS vkSj miyC/k lk{;ksa ds vk/kkj ij fof/k lEer fu.kZ; ys fy;k tk,xkA** When the petitioners had filed their show cause reply explaining the reason for less presence of the children at the centre or their being not in uniform, the District Programme Officer in his order dated 31.7.2012 did not remain confined to the aspect raised in the show cause notice and in fact had gone to hold as follows: “ mijksdr fLFkfr ls Li’V gksrk gS fd lsfodk Jherh Patna High Court CWJC No.22486 of 2012 (2) dt.10-01-2013 4 a vfu;ferrk dh tkrh gSA eatw nsoh }kjk dsUnz lapkyu es fujh{k.k ds (cid:216)e esa dsUnz ij cPpks dh mifLFkfr de ik;k x;k gSA muds }kjk viuk cpko ds fy, dgrh gS fd dsUnz ij 33 cPpsa mifLFkr Fks blesa 12 cPps dsUnz ds vanj Fks vkSj “ks’k cPps [ksy jgs FksA rFkk lgkf;dk ds dsUnz ij vuqifLFkr jgus ds lEcU/k esa myVh dk cgkuk cuk;k tk jgk gS] tks larks’kizn izrhr ugh gksrk gSA nksuks gh lsfodk ,oa lgkf;dk ns[kus ls 60 o’kZ ls vf/kd mez dh ,oa detksj gS ijUrq izek.k i= esa mez de fn[kk;h gSa okLro esa ;s nksuks dk;Z djus esa v[ke gSA funs”kd] vkbZ0lh0Mh0,l fcgkj iVuk ds i=kad 95 fnukad 14-3-2012 ,oa i=kad 2120 fnukad 20-6- 2012 ds funs”kkuqlkj fcuk iz;kZIr dkj.k ds dsUnz ij 14 ls de cPps jgus ij lsfodk dks p;ueqDr djus dk funs”k fn;k x;k gSA vr% vk¡xuckM+h dsUnz lapkyu esa vfu;ferrk ,oa ykijokgh ds fy, vk¡xuckM+h dsUnz la[;k &37 dsUnz Hkaxgk xksB iapk;r & pk¡piqj Hkaxgk dh lsfodk Jherh eatw nsoh ,oa lgkf;dk Jherh Qwnks nsoh dks p;ueqDr fd;k tkrk gSA** From a reading of the aforementioned order it, therefore, becomes clear that whatever was alleged in the show cause notice was left behind by holding in one word that the explanation was not satisfactory and it was a physical incapacity and the age of the petitioners which became detrimental for their removal. As noted above, there was no such allegation against them in the show cause notice that they are overage or they have no physical incapacity to discharge the function of Anganwari Sevika/Sahaika. In that view of the matter, there would be no difficulty in holding that the impugned order suffers from vice of violation of principles of natural justice, inasmuch as it is well settled that merely giving a show cause notice is not enough but when such a show cause reply is filed the same has to be considered and the Patna High Court CWJC No.22486 of 2012 (2) dt.10-01-2013 5 facts mentioned in the show cause notice have to be dealt before passing the reasoned order. In any event a matter which has not been raised in the show cause notice cannot be taken into consideration while passing an order adverse to the interest of the person concerned. The same error in fact has also crept in in the appellate order, inasmuch as the appellate authority also had held as follows: “mifLFkr ftyk izksxzke inkf/kdkjh us crk;k fd ftyk Lrjh; tk¡p Vhe ls izkIr izfrosnu ds vk/kkj ij mDr dsUnz dh lsfodk ,oa lgkf;dk dks uksfVl dj lquokbZ fd;k x;kA lquokbZ ds Øe esa tokc larks’kizn ugh ik;s tkus ij Kkikad 2039 ft0 izks0 fnukad 31-7-2012 }kjk p;ueqDr fd;k x;k gSA lsfodk ,oa lgkf;dk ns[kus ls “kkfjjhd :i ls detksj yxrh gS ;s dk;Z djus es a l{ke ugh yxrh gS] ftldk izek.k muls mudk tUe frfFk iwNus ij fn;s x;s tokc ls Hkh Li’V gksrk gSA mijksDr lHkh i{kksa dks lquus ls Li’V gksrk gS fd lsfodk ,oa lgkf;dk vk¡xuckM+h dsUnz lapkyu ls lEcfU/kr lHkh dk;Z lqpk: :i ls ugh dj ik jgh gS] D;ksfd lsfodk ls mudk mez iwNus ij izek.k i= esa tUe frfFk vafdr gksus dh ckr djuk fl) djrk gS fd mudks orZeku esa dkxt dh lgh&lgh tkudkjh ugh jgrh gS ,oa muds vuq”kklughurk dks n”kkZrk gSA okLro esa ;s nksuks “kkjhfjd :i ls dk;Z djus esa v{ke gSA lsfodk ,oa lgkf;dk }kjk vius dÙkZO; esa ykijokgh cjrh xbZ gSa funs”k vkbZ0lh0Mh0,l0 fcgkj iVuk ds i=kad 956 fnukad 14-3- 2012 ,oa i=kad 2120 fnukad 20-6-2012 ds funs”kkuqlkj fcuk i;kZIr dkj.k ds vkWxuckM+h dsUnz ij 14 cPpsa ls de mifLFkfr jgus ij lsfodk dks p;ueqDr djus dk izko/kku gSA vkWxuckM+h dsUnz lapkyu esa vfu;ferrk ,oa ykijokgh ds fy, ftyk izksxzke inkf/kdkjh }kjk fuxZr lsfodk@lgkf;dk dk p;ueqDr vkns”k lgh izrhr gksrk gS] mlesa dksbZ glr{ksi dh vko”;drk ugha gSA p;ueqDr lsfodk ,oa lgkf;dk }kjk nk;j vihy vkosnu dks [kkjht fd;k tkrk gSA** From the reading of the appellate order, therefore, it would again become clear that it was more or less the age of the Patna High Court CWJC No.22486 of 2012 (2) dt.10-01-2013 6 petitioners and their physical incapacity which had impressed the Collector of the District to dismiss their appeal. As noted above, neither the age nor physical incapacity was the subject matter of the show cause notice and therefore, the Collector of the District while hearing the appeal and passing the appellate order ought to have not taken the same into account. In that view of the matter, this Court is also not in a position to sustain the appellate order. Both the impugned orders dated 31.7.2012 (annexure 5) and 2.11.2012 (Annexure 6) being bad are hereby set aside and the matter is remitted back to the District Programme Officer to issue a fresh show cause notice to the petitioners with a copy of the enquiry report and in case he would like to make the ground of physical incapacity, the age of the petitioners as a disqualification for their working, the same would also be made subject matter of the show cause notice. Once such a show cause notice is served on the petitioners they will be under obligation to file its show cause reply, whereafter a reasoned order will be passed by the District Programme Officer in accordance with law. With the aforementioned observation and direction, this
Decision
application is disposed of. (Mihir Kumar Jha, J) surendra/-