The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 6718 of 2022 Santana Devi, aged about 48 years, W/o Gajender Dhal, resident of village & P.O-Jaltanda, P.S-Sonmer, District-Khunti. .…… Petitioner Versus 1.The State of Jharkhand. 2.The Deputy Commissioner, Khunti. 3.The District Development Commissioner, Khunti 4.The Child Development Project Officer, Karra, P.O. Karra, P.S-Khunti, District Khunti. 5.The Supervisor, Women & Child Development Department, Karra, P.O. Karra, P.S-Khunti, District Khunti. 6.The Deputy Director (Welfare), South Chotanagpur Division, Ranchi. ……. Respondents ---------
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD For the Petitioner For the Respondents 04/Dated: 3rd April, 2023 ---------- : Mr. Abhishek Srivastava, Advocate : Mr. Rahul Dev, A.C to S.C (L & C) III : Mr. Deepak Kumar, A.C to S.C (L & C) III -----------
Decision
The writ petition has been filed under Article 226 of the Constitution of India whereby and whereunder the order dated 05.12.2022 passed by the Child Development Project Officer, Karra, Khunti has been challenged by which the service of the writ petitioner has been dispensed with while she was working as ‘Anganbari Sahayika’. 2. The sole ground as has been agitated in this writ petition questioning the aforesaid order dated 05.12.2022 that such decision was taken without giving any notice to the writ petitioner and therefore, the order dated 05.12.2022 (impugned) since is in violation of principle of natural justice and hence the same is not sustainable in the eye of law. 3. Mr. Rahul Dev, learned A.C to S.C (L & C) III appearing for the State has submitted by scrutinizing the impugned order dated 05.12.2022 in order to verify as to whether any notice has been given to the writ petitioner before taking decision of dispensing with the services of the writ petitioner. It has 2 been submitted by the learned State counsel that although there is reference of an enquiry being conducted is there but there is no reference of any notice. However, he submits that if the opportunity will be granted to him to file counter affidavit then the fact about issuance of notice would be brought on record. 4. This Court has heard learned counsel for the parties and perused the impugned order dated 05.12.2022 whereby and whereunder the writ petitioner was working as ‘Aanganbari Sahayiaka’ has been dispensed with by the aforesaid order. The ground has been taken on behalf of the petitioner that the decision to dispense with the service since suffers from violation of principle of natural justice as such the same is not sustainable in the eye of law. Learned State counsel although has submitted that there is no reference of any notice being referred in the impugned order but he has submitted that if the time will be allowed then the instruction about the notice will be brought on record. The question is that this Court would have granted time to the learned State counsel if there would have been any reference of notice/show cause in the impugned order. But admittedly and as per the admission on behalf of the learned State counsel that there is no reference of any notice in the impugned order, therefore, even if the time is allowed to the learned State counsel in order to verify as to whether any notice has been given to the writ petitioner or not then also the same will not fulfill the requirement of law, since, the legal position is well settled that even if show cause notice has been issued but there is no reference to that effect in the impugned decision then the same cannot be allowed to be improved by way of an affidavit as has been held by Hon’ble Apex Court in the case of Mohinder Singh Gill. 3 vs. Chief Election Commissioner, New Delhi and Ors. reported in (1978) 1 SCC 405 wherein at paragraph- 8 the following issue has been laid down: “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 3 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.” 5. This Court after considering the aforesaid proposition of law, is of the view that since that there is no reference of any show cause notice in the order impugned and as such there is no requirement to grant adjournment to the writ petitioner to file counter affidavit taking into consideration the law as settled by Hon’ble Apex Court in the case of Mohinder Singh Gill (supra) due to the simple reason that even if the State will come out with the stand in the counter affidavit that the notice has been given but since it is not being reflected in the impugned order, therefore, the same will be nothing but will amount to allowing the respondent to improve the finding recorded in the impugned order by making reference of the same in the counter affidavit. The position of law is well settled that the justifiability of the impugned order or the observance of the principle of natural justice is to be reflected from the face of the record. 6. This Court after considering the aforesaid position of law, is of the view that since on the face of the impugned order dated 05.12.2022 although 4 the reference of enquiry is there but there is no reference of any enquiry as to whether before taking such decision to dispense with the service of the writ petitioner any show cause notice has been issued, as such, the said order according to the considered view of this Court, is not sustainable due to want of the principle of natural justice. 7. Accordingly, the impugned order dated 05.12.2022 is hereby quashed and set aside. 8. In consequence thereof, the matter is remitted before the authority concerned to take decision afresh after giving a notice to the writ petitioner within the stipulated period of four weeks from the date of receipt of copy of the order. 9. If such notice will be given to the writ petitioner, the same must be responded by the writ petitioner within the further period of three weeks from the date of receipt of the said notice. 10. The concerned competent authority will take decision on its own merit after three weeks from the date of response of the said notice. 11. The further continuation of the writ petitioner in service will depend upon the final outcome of the decision to be taken by the respondent as directed above. 12. Accordingly, the writ petition stands disposed of. (Sujit Narayan Prasad, J.) Saket/ N.A.F.R