Disha Kumari, Daughter of Sh. Paras Ram v. State of HP through Principal Secretary (Education)
2021-11-16
AJAY MOHAN GOEL
body2021
DigiLaw.ai
ORDER : There is a very short controversy involved in this petition. The petitioner is serving as a Trained Graduate Teacher (Arts) at Government High School, Shakti Dehra, District Chamba, H.P. A show cause notice dated 20.12.2019 (Annexure P-1) was issued to the petitioner by the Director Elementary Education, Himachal Pradesh, wherein it was alleged that the petitioner was habitual late comer to the school and had not mended her ways despite being warned by the Headmaster of the school. Therefore, she was issued a show cause notice by the Director Elementary Education for providing her an opportunity with regard to her defence, within three days from the receipt of said show cause notice, as to why disciplinary action be not initiated against her under the relevant rules for the above stated misconduct. 2. The petitioner submitted her reply to the same, copy whereof is appended with the petition as Annexure P-2, in which, she categorically refuted the allegations leveled against her and also contended that she has always been respectful to her seniors and had obeyed all orders of the seniors and the factum of her allegedly coming to school late could be well judged by installing a Biometric Machine in the school, so that truth may be ascertained. It was further mentioned in the reply that she used to arrive at school well in time and she left the school after school hours only. There was no complaint against her work, and in case, there was any, then, copy thereof be supplied to her so that she could mend her way in future. 3. After submission of response to the show cause notice by the petitioner, without providing her copies of alleged complaints made against her or even providing any opportunity of being heard to the petitioner, vide Annexure P-3, the Director Elementary Education, has passed the impugned order which reads as under :- “Whereas it has been brought to the notice of undersigned by the Deputy Director of Elementary Education, Chamba, Distt. Chamba that Ms. Disha Kumari, TGT (Arts) posted in Govt. High School Shakti Dehra, Distt. Chamba, is habitual of late coming and her behaviors is also not up to the mark. And whereas, the said Ms.
Chamba that Ms. Disha Kumari, TGT (Arts) posted in Govt. High School Shakti Dehra, Distt. Chamba, is habitual of late coming and her behaviors is also not up to the mark. And whereas, the said Ms. Disha Kumari TGT (Arts) had been served upon with a show cause notice vide memorandum issued to her on 20.12.2020 for the above said lapse affording her an opportunity to submit her reply to the show cause notice within three days. And whereas, reply to the show cause notice submitted by Ms. Disha Kumari TGT (Arts) on dated 13.1.2020 has not been found satisfactory. Above mentioned lapse records sheer negligence on part of Ms. Disha Kumari TGT (Arts) warranting disciplinary action against her under relevant rules. However, taking lenient view, Ms. Disha Kumari TGT (Arts) is hereby warned to be punctual and not to repeat such misconduct in future. Any lapse would be viewed seriously and strict disciplinary action as deemed fit, shall be taken under relevant rules.” 4. Feeling aggrieved, the petitioner has filed the present petition against the order of the Director Elementary Education. 5. Mr. K. B. Khajuria, learned Counsel for the petitioner, has argued that the impugned order has been passed by the authority concerned without any due application of mind, which is evident from the fact that the same, besides being a non-speaking order, also does not contains any reasoning as to why warning was issued to the petitioner in the first place, which warning was ordered to be recorded in the service book of the petitioner. He submits that the impugned order has civil consequences as far as the petitioner is concerned and it is settled law that no order, which has civil consequences, can be passed at the back of a person. He has further argued that the impugned order is a sham order for the reason that alongwith it, neither any complaint, purportedly made against the petitioner, was supplied to her nor any document was made available to her, on the strength of which, it could be stated or held by the department that she was a habitual late comer to the school as alleged.
Accordingly, learned Counsel for the petitioner has prayed that as the impugned order has been passed without any due application of mind and without strictly adhering to the principles of natural justice, the petition be allowed and impugned order be quashed and set aside. 6. Mr. Adarsh Sharma, learned Additional Advocate General while defending the impugned action, has argued that it was on the basis of complaints received against the petitioner, copy whereof stands appended with the reply, that a show cause notice was issued to her, and further even by way of order, which stands impugned, no strict action has been taken against the petitioner and she only has been warned to mend her ways. He submits that the impugned order calls for no intervention or interference for the reason that the Authority has been extremely lenient to the petitioner and she has been let off without being charged with any strict disciplinary action against her even though allegations against her were serious. 7. Learned Counsel for the petitioner in rebuttal submits that the documents appended with the reply, upon which, reliance has been placed by learned Additional Advocate General, were, in fact, never supplied to the petitioner, and accordingly, he submits that the petition be allowed. 8. I have heard learned Counsel for the parties and gone through the pleadings as well as documents appended therewith. 9. It is not in dispute that the impugned order has been passed by the authority concerned on the basis of show cause notice Annexure P-1 and response made to the same by the petitioner Annexure P-2. During the course of arguments, it could not be demonstrated before the Court that any complaint etc. purportedly made against the petitioner to the effect that she was a habitual later comer to the school, was ever handed over or communicated to the petitioner so that she could have responded to the same. Not only this, the impugned order makes for an interesting reading. After recording the factum of issuance of the show cause notice and the factum of response having been filed thereto by the petitioner, all that the authority states is that as the reply to the show cause notice has not been found to be satisfactory, therefore, this lapse amounts to sheer negligence on the part of the petitioner and warrants disciplinary action. 10.
10. This Court is of the considered view that the conclusion so arrived at by the authority herein sans any reason. It is well settled law that when an authority, may be on the administrative side, passes an order which has civil consequences, then, the same not only has to be passed by adhering to the principles of natural justice but the same has to be a reasoned and speaking order. In this case, the authority i.e. the disciplinary authority, issued a show cause notice to the petitioner as to why disciplinary proceedings be not initiated against her. Service jurisprudence demands that wherever a show cause notice is issued to an incumbent, calling upon him/her to submit his or her response to the contents mentioned in the show cause notice, then, the annexures or the documents, on the basis of which the show cause notice has been issued, necessarily have to be supplied to the party concerned, so that it can refer to the same and rebut the same in response to be filed. In this case, except bald allegations made in the show cause notice that the petitioner was habitual late comer to the school, no material was appended with the show cause notice to substantiate this fact. In these circumstances, but natural, the only option available with the petitioner was to deny such bald allegations, which was done and rightly so by the petitioner. Now, if the disciplinary authority was not satisfied with this response and if it intended to warn the petitioner, then also, because this warning has been entered in the service record of the petitioner and would have been a blot on the career of petitioner, the minimum requirement of law was that some sort of inquiry should have been ordered in the issue by the authority and after affording an opportunity to the petitioner of putting forth her case, a reasoned and speaking order should have been passed by the authority against the petitioner, may be limiting itself to just warning the petitioner not to repeat such acts in future. The Court is making this observation for the reason that the very fact that a warning has been issued by the disciplinary authority to the incumbent demonstrates the fact that the disciplinary authority has come to the conclusion that the petitioner is guilty of a misconduct.
The Court is making this observation for the reason that the very fact that a warning has been issued by the disciplinary authority to the incumbent demonstrates the fact that the disciplinary authority has come to the conclusion that the petitioner is guilty of a misconduct. This, but natural, will remain as a blot on the service career of the petitioner and the same could not have been done by the authority concerned without holding an inquiry. 11. Accordingly, in view of reasoning assigned hereinabove, this petition is allowed and impugned order dated 13.03.2020 (Annexure P-3) is quashed and set aside but with liberty to the disciplinary authority that in case it intends to take the show cause notice issued by it to its logical conclusion, then, an inquiry of some essence, be ordered in the same and after giving the petitioner reasonable opportunity of being heard by providing her the documents, including the complaints etc, which stand filed against her, appropriate decision be taken in the matter by the Authority as per Rules. The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.