CHAMELI DEVI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This Letters Patent Appeal has been preferred against the judgment and order dated 31.8.2012 passed by learned Single Judge in WP(S) No. 4802 of 2009, whereby the writ petition preferred by the present appellant has been dismissed. Learned counsel for the appellant submitted that the appellant (original petitioner) preferred the writ petition bearing WP(S) No. 4802 of 2009 for quashing the order of termination of the services of the present appellant passed by Deputy Development Commissioner, Deoghar on 24th September, 2009 (Annexure-6 to this L.P.A.).

(2.) It is submitted by the counsel for the appellant that the present appellant is Anganbari Sevika at Village-Gidhapather District-Deoghar. She was selected as Anganbari Sevika with effect from 21.2.2004. The appointment letter is at Annexure-1 to this L.P.A. and as per Condition No. 3 of this appointment letter, if she remains absent for more than 15 days, her selection as Anganbari Sevika was liable to be cancelled. It is submitted by the learned counsel for the appellant that on 29th August, 2009, her son aged about 8 years was sick and, therefore, she had to take him to Deoghar, for his treatment and she has also stated in reply to the show-cause notice that her son was taken for medical treatment to Dr. Shri Anand Jain at District-Deoghar. She was absent only for a day on 29th August, 2009 and therefore, her services should not have been terminated or her selection may not be cancelled. This explanation was accepted by the Child Development Project Officer, Deoghar (Rural) and he has recommended vide his letter dated 11th September, 2009 to the District Social Welfare Officer, Deoghar that absence for a day of this appellant may be sympathetically considered. It is submitted by counsel for the appellant that her selection was cancelled without taking into consideration her explanation and without considering the report of Child Development Project Officer. Moreover, it is submitted by the counsel for the appellant that there is a Government of Jharkhand Circular No. 03/Sa.Ka.-134/2002-Ka-585 dated 2.6.2006 issued by the Secretary, Social Welfare, Women and Child Development Department; Government of Jharkhand (Annexure-10 to the supplementary affidavit filed by the appellant in L.P.A.) and as per Clause-16 thereof, if Anganbari Sevika remains absent for more than 15 days, after getting, her explanation, her selection can be cancelled. Similar is the Clause in the appointment letter at Annexure-1. The appellant has remained absent only for a day and that too because of sickness of her son and therefore, her termination/cancellation of selection order passed by the Deputy Development Commissioner, dated 24th September, 2009 (Annexure-6) deserves to be quashed. This aspect of the matter has not been properly appreciated by the learned Single Judge and hence, the judgment and order passed by learned Single Judge deserves to be quashed and set aside. It is also submitted by the counsel for the appellant that the Deputy Development Commissioner has not given any reason of his own for the termination of the selection of the appellant. On the contrary, the appellate authority, who is, the Deputy Commissioner has already taken decision prior to the decision to be taken by the Deputy Development Commissioner. The decision taken by the Deputy Commissioner, Deoghar is dated 20th September, 2009 (Annexure-5). The appellate authority has first taken decision and thereafter, it was followed by the Deputy Development Commissioner. Thus, the Deputy Development Commissioner has not taken any decision on the merit of the case at all and this aspect of the matter has not been properly appreciated by the learned Single Judge and hence, the order passed by the learned Single Judge deserves to be quashed and set aside. It is also submitted by the counsel for the appellant that not only the selection of the appellant (original petitioner) has been cancelled, she has also been debarred from to be appointed as Anganbari Sevika in future. The learned counsel for the appellant has, relied upon the following decisions, (a) M/s. Hind Construction and Engineering Co. Ltd. vs. Their Workmen, 1965 AIR(SC) 917 (paragraph-7), (b) Sachchi Devi vs. The State of Jharkhand & Ors.,2011 3 JLJR 328 (paragraph-6), and (c) Smt. Rita Devi @ Rita Kumari vs. The State of Jharkhand & Ors., 2012 4 JLJR 148 (paragraphs-4 and 5) and it is submitted on the basis of the aforesaid decisions that for a day's absenteeism, the termination of the present appellant (original petitioner) is a shockingly disproportionate punishment. This aspect of the matter has not been properly appreciated by the learned Single Judge.

(3.) The appellant was serving as Anganbari Sevika since 21st February, 2004 and there is no allegation against the appellant that she has ever remained absent in past. For the first time, this incidence of absence for a day has occurred and therefore also, the order passed by the Deputy Development Commissioner, Deoghar dated 24th September, 2009 deserves to be quashed and set aside. It is also submitted by the counsel for the appellant (original petitioner) that declaring the appellant permanently debarred from future selection is an added punishment. This is also not permissible in the eyes of law.