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2019 DIGILAW 1793 (JHR)

Aparna Sarkar W/o Sri Birendra Nath Sarkar v. State of Jharkhand

2019-10-22

S.N.PATHAK

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JUDGMENT : S.N. PATHAK, J. 1. The petitioner has approached this Court with a prayer for quashing the order dated 13.04.2016 as well as the order dated 18.04.2016 by which the petitioner, who is a Aanganbari Sevika, has been terminated from service on the ground of absence of one day. 2. Case of the petitioner is that she was appointed on the post of Aanganbari Sevika on 03.01.1991 under the signature of Child Development Project Officer, Raneshwar (Dumka). Since 1991, she has been working diligently, sincerely and to the satisfaction of all concerned. After bifurcation of the State of Jharkhand, Department of Social Welfare, Women and Child Development, framed certain guidelines which was circulated vide letter No. 585 dated 02.06.2006 which governed the service conditions of the petitioner. It is specific case of the petitioner that on 12.03.2016 unfortunately one Sevika fell ill and the petitioner accompanied her to hospital for her treatment and as such, the said Aanganbari Centre was opened after some delay. Unfortunately on that day when the respondents- authorities i.e. the District Planning Officer made a surprise visit to the Centre, the petitioner was not present. The District Social Welfare Officer issued a show-cause notice to the petitioner as to why the services of the petitioner be not terminated on the ground of absence. Having received the show-cause notice, the petitioner replied to the same stating very fairly that she was absent due to illness of her colleague, but the same was not considered by the respondents-authorities and the order of termination was issued. Aggrieved by the said order of termination, the petitioner has been constrained to knock the door of this Court. 3. Ms. Neha Bharadwaj, learned counsel appearing for the petitioner, strenuously urges that the order of termination is non-est in the eyes of law as the same amounts to non-consideration of her show cause reply. It has been further argued that for one day absence, the order of termination is too harsh. Similar issue fell for consideration before the Division Bench of this Court in the case of Chameli Devi vs. State of Jharkhand and Others, 2013 (3) JCR 505 , wherein the order of termination for one day’s absence was treated to be harsh and the same was set aside. 4. Per contra, counter affidavit has been filed. 5. Ms. Similar issue fell for consideration before the Division Bench of this Court in the case of Chameli Devi vs. State of Jharkhand and Others, 2013 (3) JCR 505 , wherein the order of termination for one day’s absence was treated to be harsh and the same was set aside. 4. Per contra, counter affidavit has been filed. 5. Ms. Jyoti Nayan, learned counsel appearing for the respondents, vehemently opposing the contention of the learned counsel for the petitioner, submits that the respondents were fully empowered for passing the order of termination and as such, rightly the same has been issued. The petitioner was found absent on the day of inspection by the respondents-authorities and as such, after seeking explanation and not found satisfactory, the order of termination was issued. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons:- (i) The order of termination has been issued in complete haste. No consideration has been shown by the respondents on the show cause reply filed by the petitioner. (ii) The order of termination can be issued even for one day’s absence if it is found that it is a case of misconduct. From the explanation filed by the petitioner, it appears that the absence was not intentional, rather due to the prevailing circumstances. Regarding absence and termination on the same grounds, the issue fell for consideration before the Hon’ble Supreme Court in the case of Krushnakant B. Parmar vs. Union of India, (2012) 3 SCC 178 , in which the Hon’ble Supreme Court was of the view that if absence is not intentional, rather it is due to prevailing circumstances, the same does not amount to misconduct. All these aspects have not been considered by the respondents-authorities. Paragraph 17 of the said judgment reads as under:- “17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc. but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.” (iii) The Division Bench of this Court in the case of Chameli Devi vs. State of Jharkhand and Others, 2013 (3) JCR 505 held as under:- “6(X)............for a day's absenteeism services of the delinquent cannot be brought to an end. This is a shockingly disproportionate punishment and no reasonable employer will terminate the services. The State Government is a model employer. It ought to be kept in mind of the State authority that only a female candidate can be appointed as a Anganbari Sevika or Sahayika and that too, those who are belonging to the same village. When this appellant being a female candidate has been given employment and when she has been selected as Anganbari Sevika and she was serving since long i.e. with effect from 21st February 2004 honestly, sincerely, diligently and to the satisfaction of the respondent-State, for a day's absenteeism and that too with a proper explanation (Annexure-3), her selection ought not to have been cancelled by the State authorities and that too, by the appellate authority first, in point of time and thereafter by the subordinate officer. This is not permissible in the eyes of law.” (iv) The case of the petitioner has not at all been considered by the respondents-authorities while passing the impugned order of termination. On this specific issue of consideration of case of an employee by the employer, the Hon’ble Apex Court in the case of Chairman, Life Insurance Corporation of India vs. A. Masilamani, (2013) 6 SCC 530 has held as under:- “19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over, to regard as or deem to be.” Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order. (v) The guidelines of the State meant for appointment and termination and other service conditions have been given a complete go-bye in the instant case. Clause 16 of the Circular talks of termination on the absence of 15 days. The same was never considered by the respondents-authorities and illegally and arbitrarily, without showing any consideration to its own guidelines, the respondents have issued the order of termination which is not tenable in the eyes of law and as such, it is fit to be quashed and aside. In any order amounting to civil consequences, principles of natural justice has to be followed. In the instant case, merely by issuance of a show-cause notice, the livelihood of the petitioner has been snatched. It amounts to violation of constitutional provision envisaged under Article 300-A of the Constitution of India. 7. As a sequitur of the aforesaid rules, guidelines, judicial pronouncements and legal propositions, the impugned order dated 13.04.2016 as also 18.04.2016 is hereby quashed and set aside. I hereby direct the respondents-authorities to reinstate the petitioner with all consequential benefits. The said exercise must be completed within three weeks from the date of receipt/production of a copy of this order. 8. With the aforesaid directions and observations, this writ petition is allowed.