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2002 DIGILAW 775 (PAT)

Nitishwar Jha v. State Of Bihar

2002-07-19

NARAYAN ROY

body2002
Judgment 1. Heard Mr. Ganesh Prasad Singh, learned counsel appearing on behalf of the petitioner, and JC to GP 5 for the respondents. 2. By this application, the petitioner has questioned the order of termination dated 22.4.1999, as contained in annexure 24. 3. Learned counsel appearing on behalf of the petitioner submitted that initially, this petitioner was appointed as a peon in High School, Tariani, Chapra, on 17.4.1990 and his services subsequently were regularised by the order, as contained in annexure 16 and by the order impugned, the services of the petitioner have been terminated even without considering his show-cause. 4. A counter affidavit and also a supplementary counter affidavit have been filed on behalf of the State. In paragraph 11 of the supplementary counter affidavit, it is stated that the petitioner submitted his reply of show-cause on 21.12.1998 and the same was considered and it was not found satisfactory, there fore, his salary was stopped and thereafter his services have also been terminated. 5. From the order, as contained in annexure 24, it would appear that the petitioner and other similarly situated employees of the school had not filed their show-cause nor they replied to the second show-cause and on that account their services were terminated as their appointments were void ab initio. 6. Per se from the order impugned, it appears that the show-cause filed by the petitioner was not considered on the premises that it was never filed. However, from the averments made in paragraph 11 of the supplementary counter affidavit, it appears that the reply of show-cause filed by this petitioner was duly considered and was found unsatisfactory. 7. Learned counsel appearing on behalf of the petitioner in this situation submitted that the authorities cannot supplement by saying something, which has not been stated in the order impugned as they cannot acquiesce in the infirmity now. In this connection, reliance has been placed in the case of Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others (AIR 1978 Supreme Court, 851). 8. In this connection, reliance has been placed in the case of Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others (AIR 1978 Supreme Court, 851). 8. The Apex Court in the case of Mohinder Singh Gill and another (supra), while dealing with the similar situation, held as follows:- "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 ( AIR 1952 SC 16 ) (at p. 18) : "Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of 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 acting 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." 9. The law on this point now is very clear that public orders publicly made, or circulated in exercise of the statutory authority cannot be construed in the light of the explanation 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 the public authority are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. 10. By making certain averments in the counter affidavit, the State authority, in my opinion, cannot cure the defects, which have occurred in the order impugned. 11. The position, however, emerges that the petitioner has been terminated without application of mind and without considering the cause shown by the petitioner. 12. 10. By making certain averments in the counter affidavit, the State authority, in my opinion, cannot cure the defects, which have occurred in the order impugned. 11. The position, however, emerges that the petitioner has been terminated without application of mind and without considering the cause shown by the petitioner. 12. For the reasons aforementioned, and in view of the legal proposition noticed above, the order impugned, as contained in annexure 24, is not sustainable. 13. In the result, this application is allowed and the order impugned, as contained in annexure 24, so far the petitioner is concerned, is set aside and the matter is remitted back to the District Education Officer, Sitamarhi, respondent no. 4, for fresh consideration of the matter and to pass necessary order in accordance with law. The authorities, however, shall examine the show-cause filed by the petitioner and they need not put him to another show-cause.