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Gujarat High Court · body

2009 DIGILAW 33 (GUJ)

Jyotshnaben N. Patel v. Director of Education

2009-01-23

K.S.JHAVERI

body2009
JUDGMENT : K.S. Jhaveri, J. 1. The petitioner has prayed to quash and set aside second part of order dated 3rd November 1988 asking the petitioner to deposit the amount of salary received by the petitioner in lieu of her services during the service period from 24.2.1984 to 5.11.1988. 2. After undergoing written test and interview the petitioner was appointed as teacher in the respondent No.4 school. After probation her services were regularised as Primary Teacher from 28.2.1986. The petitioner was transferred from one school to another and she served all the transferred places. On 29.1.1988 the DEO asked the petitioner for production of original documents which she has produced. Thereafter the petitioner was suspended on 27.4.1988 and during suspension period she was paid subsistence allowance as per applicable rules. The allegation against the petitioner was that the petitioner has changed figures of marks in the mark-sheet at the time of recruitment and she has fraudulently secured the job. Ultimately her services were terminated with effect from 5.11.1988 and she was directed to deposit the amount of salary received during service period. Hence the petitioner has filed the present petition. 3. Learned Advocate for the petitioner submitted that the impugned order is illegal, arbitrary and unjust and the same has been passed without affording any opportunity of hearing. According to the petitioner since she was confirmed in service the respondent authority ought not to have recovered the amount in question. 4. Learned counsel for the petitioner has produced on record the decision of this Court in the case of H.P. Thakore v. State of Gujarat and others, reported in 1979 GLR 109 . Para-7 of said judgment reads as under: "7. It may be that each charge taken individually may not be serious enough and yet taking on over-all and cumulative view the disciplinary authority may consider it appropriate to impose the maximum penalty. But then the disciplinary authority is bound to apply his mind to this aspect. It is not sufficient for him merely to say that he has considered the report and the advice and having regard to the nature of the charges (which mysterious expression may be used in a general way) the penalty of dismissal deserves to be imposed. But then the disciplinary authority is bound to apply his mind to this aspect. It is not sufficient for him merely to say that he has considered the report and the advice and having regard to the nature of the charges (which mysterious expression may be used in a general way) the penalty of dismissal deserves to be imposed. The disciplinary authority is also bound to ask himself the question as to whether the penalty of dismissal from service is the only penalty which can be imposed having regard to the nature of the charges levelled against the Government servant concerned. He has to ask himself the question as to whether a lesser penalty will meet the ends of justice. If the law enjoins that a person accused of even petty offences must be heard on the question of sentence and that the sentence must be neither too lenient, nor to harsh, but just, even when the penalty likely to be imposed is a penalty of fine or a short term of imprisonment, there is a greater reason for insisting on the disciplinary authority discharging this very delicate function in relation to the life and career of the employee concerned in conformity with the aforesaid principles. He has to strike a neat balance and to determine a just penalty which cannot be characterised either as too lenient or too harsh. May be he commits an error and a different view is possible. But at least he is bound to make an effort by weighing the pros and cons of every charge from the standpoint of the gravity of the offence and the compulsion to impose the maximum penalty. After making an honest attempt at ascertaining the just penalty called for in the facts and circumstances of the case, he can pass an appropriate order of punishment. But if he makes no attempt, it cannot be said that he has discharged the quasi-judicial function in the manner required by law and it cannot be said that he has applied his mind to this most important function. The order therefore deserves to be quashed." 5. Mr. H.H. Parikh, learned AGP submitted that the petitioner has secured the job fraudulently and she was not entitled to continue in service and the order of recovery is just and proper. 6. The order therefore deserves to be quashed." 5. Mr. H.H. Parikh, learned AGP submitted that the petitioner has secured the job fraudulently and she was not entitled to continue in service and the order of recovery is just and proper. 6. As a result of hearing and perusal of the record it is evident that Rule 5(vi)(b) of the Gujarat Panchayat Services (Disciplinary and Appeal) Rules, 1964 provides for only termination and there is no provision for recovery of the money. 7. The petitioner has completed her probation period of two years and she had been regularized. She has rendered her services for which she was paid. Therefore I am of the view that the respondent authority ought not to have ordered for recovery of the amount in question. The respondent could not have compelled the petitioner to pay back the salary. Therefore the prayer of the petitioner is required to be granted. 8. In the premises aforesaid the second part of the order dated 3.11.1988 asking the petitioner to deposit the amount of salary received by the petitioner in lieu of her services during the service period from 24.2.1984 to 5.11.1988 is set aside. If the petitioner has already paid the amount, the same shall be refunded to the petitioner. Rule is made absolute accordingly with no order as to costs. Petition allowed.