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2003 DIGILAW 618 (GUJ)

SWATI OMPRAKASH ARYA v. STATE

2003-10-15

J.N.PATEL

body2003
J. N. PATEL, J. ( 1 ) RULE. Mr. D. A. Desai, learned AGP, and Mr. Dhaval Dave, learned Counsel, appear and waive service of Notice of Rule on behalf of respondent nos. 1 and 2 and respondent no. 3 respectively. With the consent of the parties, the matter is taken up for final hearing today. ( 2 ) THE main question, which arises for consideration of this Court, is whether the respondent no. 2-authority, while taking decision for terminating the Residency of the petitioner, has to consider the aspect of quantum of penalty or not. ( 3 ) THE short facts of the case are that the petitioner was granted admission in Post Graduate Course i. e. M. D. (Paediatricts) and was also given First Year Residency for such course. It is the case of the petitioner that because of her ill health and as she had met with an accident, she could not attend the course and also the Residency for a period of about five months. On the other hand, it is the case of the respondent-authority that the petitioner intentionally did not remain present and she had appeared in other examinations with a view to get visa for U. S. A. and since she did not succeed, false and bogus ground of physical illness and accident is being canvassed before the Court. It has been submitted on behalf of the authority that papers were placed before the Committee and the Committee has found it proper to terminate the Residency of the petitioner on the ground of remaining absent for a long time i. e. from 5th January, 2003 till the notice was given. As per the petitioner, after the notice, she was willing to resume the duty, but, she was not permitted by the respondent-authority. It is, therefore, submitted on behalf of the petitioner that the absence for not joining the duty after the date of the notice, in any event, cannot be faulted with so far as the petitioner is concerned. ( 4 ) HAVING heard Mr. Gautam Joshi, learned Counsel for the petitioner, Mr. D. A. Desai, learned AGP for respondent nos. 1 and 2, and Mr. Dhaval Dave, learned Counsel for respondent no. ( 4 ) HAVING heard Mr. Gautam Joshi, learned Counsel for the petitioner, Mr. D. A. Desai, learned AGP for respondent nos. 1 and 2, and Mr. Dhaval Dave, learned Counsel for respondent no. 3, it appears that there is no dispute on the point that the authority, while taking the decision of termination of the Residency of the petitioner, has not taken into consideration the quantum of punishment or other lesser penalty. It is an admitted position that the petitioner was given admission in M. D. (Paediatrics) Course and she was undergoing study with Residency and perhaps, the respondents also cannot deny that for each seat of Post Graduate Course in medical faculty, the Government is spending huge amount and further, if the Residency of a student concerned is terminated, it may result into creating a situation whereby the seat would get lapse and no other student will be admitted vice the petitioner over such seat. Therefore, the only consequence would be that the seat would get lapse for all time to come and this, in my view, would result into creating a situation of wastage of public money and also time. Such a situation, in my view, as far as possible, should be avoided by all concerned because of limited number of seats available for Post Graduate Course in medical faculty, as against the number of students inspiring to undergo such course. ( 5 ) QUANTUM of penalty may vary from case to case. It is not necessary that in every case, it must meet with the maximum penalty to a person concerned. There may be lapse or negligence by the Residency Doctor for remaining absent, but, the authority has to consider as to whether such absence was due to unavoidable reasons or not. If it is due to unavoidable reasons, beyond the control of the doctor concerned and such lapse or negligence has not resulted into damage to anyone, possibly, it can be viewed leniently. If it is a lapse or negligence or absence, which can be contributed on self volition or on conscious omission and such lapse or negligence has resulted into serious damage, then, it may invite serious consequences and hence, more penalty. If it is a lapse or negligence or absence, which can be contributed on self volition or on conscious omission and such lapse or negligence has resulted into serious damage, then, it may invite serious consequences and hence, more penalty. At the same time, the authority, while considering the fact of so-called lapse and absence, has also to consider as to whether maximum penalty of termination is called for or lesser penalty, may be by imposition of fine or any other lesser penalty, would serve the purpose or would meet with the situation of the case or not. Mr. Desai, learned AGP, has, during the course of the arguments, submitted that the committee has considered all papers, but, it appears that no reference or no brief reasons are recorded for terminating the Residency of the petitioner. The only language used is `considered and the word, `considered, in my view, would not be sufficient to maintain the order of imposition of penalty because some brief reasons are required to be mentioned so as to make the order of imposition of penalty a speaking order. It is not necessary that the authority imposing the penalty should pass the order as that of judicial authority, where each and every aspects will be examined and dealt with while recording the reasons, but, at the same time, just to make the person concerned known about the main grounds, on which the penalty is imposed, such grounds must be reflected and should be reflected in the order or while communicating the decision or in any case, must be borne ( 6 ) IF the aforesaid aspects are considered and compared with the decision of the authority, it appears that the authority has not considered the matter accordingly and the order for imposition of penalty for termination of Residency of the petitioner deserves to be quashed on the ground that it is not a speaking order and the authority has not considered the question of imposition of lesser penalty to the petitioner. It, therefore, appears that the authority should be directed to reconsider the matter afresh. It may be stated that the petitioner, when the Notice was issued for the first time in this petition on 8th September, 2003, had declared before the Court that she is ready to forgo the term. It, therefore, appears that the authority should be directed to reconsider the matter afresh. It may be stated that the petitioner, when the Notice was issued for the first time in this petition on 8th September, 2003, had declared before the Court that she is ready to forgo the term. The said aspect shall also have to be taken into consideration by the authority after giving an opportunity of hearing to the petitioner. ( 7 ) IN view of the aforesaid discussion, the present petition is partly allowed and the Office Order No. MCS/stu/pg/10921-25/2003 dated 11th July, 2003 passed by respondent no. 2 terminating the Residency of the petitioner is quashed and set aside with a direction to respondent no. 2 to reconsider the matter in light of the observations made by this Court in this judgement and after giving an opportunity of hearing to the petitioner. Such exercise shall be undertaken and completed by the respondent no. 2 within a period of six weeks from today. Rule is made absolute to the aforesaid extent. No costs. Direct Service is permitted. .