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Shakti Srivastava v. Nideshak Bal Vikas Evam Pustahar U.P. And Others - WRIT - A No. 45346 of 1999  RD-AH 1257 (5 May 2005)
COURT NO. 32.
Writ Petition No. 45346 of1999.
Shakti Srivastava Petitioner
Nideshak Bal Vikas Evam Pustahar
U.P. Lucknow& Other Respondents.
Hon. Vikram Nath, J.
Heard learned counsel for the parties.
This petition has been filed for quashing the order dated 17.08.1999 issued by the Bal Vikas Pariyojna Adhikari, Asothar, Fatehpur, whereby engagement of the petitioner as Anganbari Karyakarti has been terminated on account of dereliction in her duty. The contention of the learned counsel for the petitioner is that her husband is psychically handicapped and had suffered attack of filaria on account of which she could not attend duties, as she had to take her husband for treatment. She sent application for granting her leave for two days i.e. 25.06.1999 and 26.06.1999. It appears that District Pariyojna Adhikari inspected the center on 26.06.1999 and finding the petitioner absent submitted a report on the basis of which a show cause notice was issued to the petitioner on 31.07.1999 by Bal Vikas Pariyojna Adhikari, Asothar, Fatehpur (Annexure 7 to the writ petition). The petitioner received the said notice on 06.08.1999 and submitted her reply on 10.08.1999 by registered post. The impugned order has been passed by the Bal Vikash Pariyojna Adhikari on 17.08.1999 in compliance pursuant to the order of the Director, Bal Vikash Seva Evam Pustahar, U.P. Lucknow, dated 01.08.1999 and the District Programme Officer, Fatehpur, dated 11.08.1999.
The contention of the learned counsel for the petitioner is that the reply submitted by her to the show cause notice has not been considered and that her engagement has been terminated without any opportunity. From the record also it appears that even though the show cause notice was issued calling upon the petitioner to submit her explanation without any delay but in fact no time was allowed as the decision had already been taken on 01.08.1999 by the Director. According to the petitioner she received the show cause notice on 06.08.1999 and immediately within four days on 10.08.1999 she submitted her reply. In the counter affidavit it has been alleged that no reply of the petitioner has been received within time. It is clear form the record that the Director had already taken decision on 01.08.1999 whereas the show cause notice is dated 31.07.1999. These facts are not disputed in the counter affidavit.
In the circumstances the impugned order terminating the engagement of the petitioner is vitiated being in violation of principles of natural justice. The procedure adopted does not appear to be proper. Learned counsel for the petitioner has relied upon a judgment of this Court in the case of Smt. Kanti Devi vs. Director Bal Vikas Evam Pustahar, U.P. Lucknow & others reported in 2003(1) CRC598 in which it is provided that before cancellation of the appointment as Anganbari Karyarti an opportunity of hearing and show cause is must by the concerned authority.
It has been contended by the learned counsel for the respondent that the engagement of the petitioner is purely temporary and could have been terminated at any time without giving notice and, therefore, termination order is valid. The said contention cannot be accepted in as much as once a show cause notice is given the reply of the petitioner to the notice aught to have been considered and, therefore, any order passed affecting the right of the petitioner in absence of consideration of the show cause given by the petitioner will be vitiated in law and will be liable to be set aside. It may however, be noted that as the petitioner was working in contractual basis no relief for arrears etc. can be allowed. It would however, be open to the authority to pass fresh orders after considering reply given by the petitioner within a period of two months from the date of production of certified copy of this order and in case, the petitioner is reengaged, she would be entitled to current salary from the date of engagement. The petitioner cannot make any claim with regard to any arrears for the period for, which she has not worked.
The writ petition accordingly succeeds and is allowed. The order dated 17.08.1999 passed by Bal Vikash Pariyojna Adhikari, Asothar, Fatehpur, along with order of the Director dated 01.08.1999 and that issued by District Programme Officer on 11.08.1999 are also set aside. Matter is being sent back to the Director Bal Vikash and Pustahar, Lucknow (respondent no. 1) for passing fresh orders after considering show cause given by the petitioner to the notice dated 31.07.1999, within a period of two months from the date of production of certified copy of this order.
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