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2014 DIGILAW 1088 (JHR)

Sandhya Paul v. State of Jharkhand

2014-11-10

SUJIT NARAYAN PRASAD

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ORDER : The petitioner has challenged the order dated 2.6.2006 by which she has been removed from service. 2. While assailing the order dated 2.6.2006 it has been submitted on behalf of the petitioner that the petitioner has been appointed as an Assistant Teacher vide order dated 7.12.2004 after following all the procedures but all of a sudden she has been removed from service vide order dated 2.6.2006. It has further been submitted that the order impugned is non-speaking since no reason has been assigned by the respondents before removing the petitioner from service. While the petitioner was holding the substantive post of Assistant Teacher, neither any show-cause notice was given to the petitioner nor any regular departmental proceeding has been initiated. 3. On the other hand, counsel for the respondents-State has submitted while supporting the order dated 2.6.2006 stating therein that although reason has not been assigned in the impugned order dated 2.6.2006, but it has been stated in the counter affidavit at paragraphs-9 and 10 which are as follows :- “9. That the statements made in paragraph-12 to 17 of the writ application, it is submitted that the petitioner was appointed on the post of Assistant Teacher vide memo no.2424 dated 7.12.2004 temporarily with certain terms and conditions along with the condition that if any of the educational certificate of the candidate will be found bogus and forged one, his/her service will be liable to be cancelled without any information. Accordingly the CBSE certificate of the petitioner was sent for its verification to Regional Office vide respondent no.4's office memo no.330 dated 9.4.2005 and the concerned Board submitted its verification report vide memo no.1758 dated 26.5.2005 to the office of respondent no.4 in which the date of birth was shown as 3.2.1963, but the petitioner by manipulation and overwriting changed the date of birth in her certificate and made herself eligible candidate. The said matter was put up before the District Establishment Committee, Giridih which was held on 25.5.2006 and after considering all the materials and on perusal of the certificates, the District Establishment Committee decided to terminate altogether 32 teachers from their services including the petitioner in the light of the decision taken by the Establishment Committee. The termination of services of the petitioner vide respondent no.4's office order no.944 dated 2.6.2006 (Annexure-5) is just and proper. The termination of services of the petitioner vide respondent no.4's office order no.944 dated 2.6.2006 (Annexure-5) is just and proper. Xerox copy of verification report dated 26.5.2005 is annexed as annexure-A to this counter affidavit. 10. That so far as the contention made in para-18 of the writ application is concerned, it is submitted that in the terms and conditions laid down in para-3 of the appointment letter (Annex-4) that in case if the educational testimonials of the petitioner on verification will be found forged, her services will be terminated without giving any further intimation as such on finding that the CBSE certificate of the petitioner in which her date of birth was mentioned/recorded as 3.9.1963 was tampered with by manipulation and overwriting which made entitled her to be a candidate for appointment for the post of Assistant Teacher illegally.” 4. As such, learned counsel for the respondents has supported the impugned order. 5. Heard the parties. 6. The petitioner has been appointed as Assistant Teacher by virtue of advertisement, examination was conducted by the Jharkhand Public Service Commission against the vacant sanctioned post on 7.12.2004. Thereafter, the petitioner started discharging the duty in pursuance of the said appointment letter and has also been paid the salary. 7. The petitioner, all of a sudden, has been removed from service by order dated 2.6.2006 issued under the signature of the District Superintendent of Education, Giridih on the ground that the petitioner along with others have obtained employment on the basis of forged document. 8. On going through the entire pleadings, it is apparent that the petitioner's service has been removed on the ground of certain allegations which admittedly amount to gross misconduct. The petitioner has been appointed as Assistant Teacher in pursuance of the advertisement holding the permanent substantive post. Petitioner since been removed on the ground of misconduct, as such it is necessary to initiate a regular departmental proceeding before reaching to the rightful conclusion by providing adequate and sufficient opportunity of being heard to the petitioner. But by going through the order dated 2.6.2006 it appears that no regular departmental proceeding has been initiated rather reason has also not been assigned on the same as to on what ground the petitioner has been removed from service. 9. But by going through the order dated 2.6.2006 it appears that no regular departmental proceeding has been initiated rather reason has also not been assigned on the same as to on what ground the petitioner has been removed from service. 9. It is cardinal principle of law that the authority who is passing the order, is supposed to assign the reason in the order itself. The reason cannot be supplemented by way of an affidavit. In this regard it is worth to refer the judgment pronounced by Hon'ble Apex Court in Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors. reported in (1978) 1 SCC 405 at Paragraph-8 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." 10. The same proposition of law has been reiterated by the Apex Court in East Coast Railway & Anr. Vs. Mahadev Appa Rao & Ors. reported in (2010) 7 SCC 678 at Paragraph – 9 as follows :- "There is no quarrel with the well-settled proposition of law that an order passed by a public authority exercising administrative / executive or statutory powers must be judged by the reasons stated in the order or any record or file contemporaneously maintained. It follows that the infirmity arising out of the absence of reasons cannot be cured by the authority passing the order stating such reasons in an affidavit filed before the Court where the validity of any such order is under challenge." 11. Thus, in view of the above, it is settled that a reason is to be assigned in the order itself. Here in the instant case no reason has been assigned in the order dated 2.6.2006 nor the petitioner has been provided any opportunity of being heard. Hence, the impugned order dated 2.6.2006 is not sustainable in the eye of law and as such the same is hereby quashed. Here in the instant case no reason has been assigned in the order dated 2.6.2006 nor the petitioner has been provided any opportunity of being heard. Hence, the impugned order dated 2.6.2006 is not sustainable in the eye of law and as such the same is hereby quashed. The matter is remanded before the District Superintendent of Education, Giridih to take a fresh decision in accordance with law by providing an opportunity of being heard to the petitioner within a reasonable period with liberty to the petitioner to raise all the points along with the educational certificates. 12. It is expected from the authorities concerned to take an appropriate decision within a reasonable period, preferably within a period of six weeks from the date of receipt/production of a copy of this order and communicate the same to the petitioner. 13. This writ petition stands disposed of.