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2018 DIGILAW 1841 (JHR)

Chundri Devi v. State of Jharkhand

2018-08-14

SHREE CHANDRASHEKHAR

body2018
JUDGMENT : 1. In this batch of writ petitions order dated 13.04.2016 contained in Letter No. 701 issued by the District Social Welfare Officer, Dumka is under challenge. By this order petitioners who were appointed as Anganbari Sevika or Sahayika have been dismissed from service. 2. In W.P.(S) No. 7612, on a similar ground as is reflected in order dated 13.04.2016 a direction was issued to terminate the petitioner from service vide order dated 10.05.2016. It is stated that in W.P.(S) No. 7667, an appeal has been filed. 3. In W.P.(S) No. 7563, and W.P.(S) No. 7781, counter-affidavits have been filed. Stand taken by the respondent-State in these counter-affidavits has been reiterated by the learned State counsels opposing the other writ petitions. 4. Since a common question of law is involved in this batch of writ petitions; facts pleaded are also similar, these writ petitions are disposed of at this stage itself. 5. In course of an inspection conducted at different Anganbari Centres on 12.03.2016 several Anganbari Sevika and Sahayika were found not present at the Centre and the Centres were found closed. Accordingly, they were issued show-cause notice. The impugned order dated 13.04.2016 reflects that the show-cause reply submitted by the petitioners were found not satisfactory and, therefore, a direction was issued to terminate them from service. Pursuant to the impugned order dated 13.04.2016, the petitioners, except the petitioner in W.P.(S) No. 7612, who has also been terminated from service on similar grounds, were terminated from service by order dated 10.05.2016. 6. Stand taken by the petitioners is that their show-cause reply has not been considered by the respondents and by merely observing that their show-cause reply are not satisfactory if they are terminated from service, the impugned order must be held issued in breach of the rules of natural justice. Further plea taken by the petitioners is that for a solitary mistake which admittedly does not reflect an act amounting to moral turpitude the petitioners cannot be terminated from service. 7. Mr. Atanu Banerjee, the learned G.A submits that not only most of the petitioners were not found present at Anganbari Centre, the Centre itself was found closed during inspection on 12.03.2016 and some of the petitioners could not even produce register regarding functioning of the Anganbari Centre. 8. 7. Mr. Atanu Banerjee, the learned G.A submits that not only most of the petitioners were not found present at Anganbari Centre, the Centre itself was found closed during inspection on 12.03.2016 and some of the petitioners could not even produce register regarding functioning of the Anganbari Centre. 8. In the counter-affidavit the respondent-State has taken a preliminary objection on maintainability of the writ petition on the ground that against the order of termination an appeal shall lie before the Deputy Commissioner. 9. On the question of alternative remedy, it is pertinent to record that if an order of termination from service has been issued in avoidance of the rules of natural justice plea of alternative remedy must fail [refer “Whirlpool Corpn. Vs. Registrar of Trade Marks” reported in (1998) 8 SCC 1 ]; a plea of alternative remedy is more of convenience of the Court rather than substantive. 10. The impugned order dated 13.04.2016 suffers from apparent errors, for even though some of the petitioners were present at the Centre during the inspection still they also have been terminated from service. For example, Anganbari Sahayika who is petitioner in W.P.(S) No. 7563, was found present at the Centre, however, she also has been dismissed from service. The impugned order dated 13.04.2016 itself reflects that several Anganbari Sevika and Sahayika from Kalajhar, Asanpahari, Aamjhari and Chandrapura Centres have been let off with a simple warning whereas even some of the petitioners who were found present at the Center have also been terminated from service. Not only the impugned order dated 13.04.2016 does not reveal anything more on this aspect, the counter-affidavits filed on behalf of the respondents are also completely silent. Absence of one day from duty is not such a grave misconduct to warrant termination from service. These petitioners were appointed long back and no previous misconduct by them has been alleged. 11. On the allegation that the petitioners did not produce registers pertaining to functioning of the Anganbari Centre, suffice would be to record that it is not the stand of the respondents that no such register is being maintained at the Centre. If at all there were complaints and children were not found at the Centre, the matter was to be enquired into further which has not been done by the respondents. On presumption of certain facts one cannot be terminated from service. If at all there were complaints and children were not found at the Centre, the matter was to be enquired into further which has not been done by the respondents. On presumption of certain facts one cannot be terminated from service. In respect of the appeal preferred by the petitioner in W.P.(S) No. 7667, nothing has been brought on record. Objection taken by the learned State counsel on the ground of pendency of appeal is mere technical. 12. Leaving aside the aforesaid issues, in view of order dated 29.06.2018 passed by the learned Single Judge of this Court in W.P.(S) No. 7593, by which impugned order dated 13.04.2016 has been quashed, these writ petitions must succeed. 13. Plea urged by Mr. Atanu Banerjee, the learned G.A that if complete facts were not brought to the notice of the Court due to which the writ Court has quashed order dated 13.04.2016 it is not binding on a co-ordinate Bench merits no acceptance. Judicial proprietary and discipline require that if a common order has been interfered or a common issue has been decided by the Court a co-ordinate Bench must follow the same, except in a case where the Court differs with the view taken by the co-ordinate Bench, however, in that even the issue shall be referred to a Division Bench. Facts disclosed in the present proceeding do not permit me to take a view different from what has been taken by the learned Single Judge, that the order of termination is illegal. 14. In view of the aforesaid facts and for the reasons indicated hereinabove, the impugned orders are quashed. 15. The writ petitions are allowed. Petitions allowed.