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2010 DIGILAW 66 (ALL)

MAHESH CHANDRA SHARMA v. STATE OF U. P.

2010-01-06

SUDHIR AGARWAL

body2010
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri G.P. Yadav for the petitioner and learned Standing Counsel for the respondents. 2. Aggrieved by the order of recovery dated 10.6.2009 passed by District Basic Education Officer, Aligarh directing for recovery of Rs. 2,03,057.00 along with interest from the petitioner in 24 equal instalments, the present writ petition has been filed seeking writ of certiorari for quashing the same. 3. Sri Yadav vehemently contended that the impugned order has been passed without giving any show cause notice or opportunity to him. He further submits that the petitioner was on medical leave during the period the alleged notice is said to have been issued but without giving any effective opportunity to the petitioner, the impugned order has been passed. He lastly submitted that the liability, if any, was not only of the petitioner but on the Gram Pradhan also but only the petitioner has been victimized by directing recovery from him instead of dividing the liability upon both the persons, namely, the petitioner and the Gram Pradhan. 4. However, I find no force in the submission. From the impugned order dated 10.6.2009, it is evident that two notices were issued to the petitioner on 31.12.2008 and 31.3.2009 requiring him to submit reply. It is stated by the District Basic Education Officer, Aligarh in the impugned order that the petitioner refused to receive the said notices though both were sought to be served upon him by special messenger. Annexure 4 to the writ petition, which is an application submitted by the petitioner on 22.10.2009 shows that the petitioner was on medical leave only from 2.2.2009 to 14.9.2009 and therefore the defence of the petitioner that he was on medical leave during the period the aforesaid notices were issued to him is not correct since the first notice was sent to him on 31.12.2008 on which date, admittedly, he was not on medical leave. 5. Besides, being on medical leave does not mean that the petitioner was not in service and, therefore, if a notice was sought to be served upon him at his residence when he was on medical leave, it was incumbent upon the petitioner to receive the same and submit reply or to seek further time for submitting reply, but instead of doing so, the petitioner chose not to accept the notice and refused the same. The doctrine of principles of natural justice is not a strait jacket formula. It only required an attempt on the part of the authority concerned to afford an opportunity to the person concerned against whom an order is to be passed but despite of making opportunity available, if the person concerned refuses to avail the same, it cannot be said that the principles of natural justice have been violated as held by the Apex Court in Union of India and others v. B.K. Srivastava, 1998 (6) SCC 340 . 6. Sri Yadav further submits that the petitioner is not a sole responsible person for the alleged irregularity and the authorities concerned ought to have saddled the responsibility jointly upon the Gram Pradhan concerned also. There is no averment to the extent that the finding with respect to irregularity is perverse or incorrect. Merely because some other person is also responsible it cannot be said that the recovery cannot be made from the petitioner inasmuch it is always open to the disciplinary authority to make good the loss from one person even if there are more persons responsible and it is for the person concerned to take such steps as permissible in law to get the amount adjusted from other responsible persons. 7. The allegations levelled against the petitioner are really serious. He has committed irregularity in construction of a Primary School where small children in future are supposed to get education. If any mishap occurs on account of poor quality of construction etc. the victims would be the small children for no fault of them. The petitioner being an Assistant Teacher must have been much careful and watchful having a human heart in himself to take care and not to make any compromise with the quality of work since it was his pious duty to get the construction of the best standard possible so that the small children who would be beneficiary of the construction in question may not have to face any chance of mishap. Such lapses on the part of the petitioner cannot be viewed lightly. At least this Court would not permit such lapses to be dealt with leniently as that will give a licence to similar other mischievous persons to continue to indulge in such kind of activities. Such lapses on the part of the petitioner cannot be viewed lightly. At least this Court would not permit such lapses to be dealt with leniently as that will give a licence to similar other mischievous persons to continue to indulge in such kind of activities. There is nothing on record to show that the allegations levelled against the petitioner have ever been disputed by him and even in the writ petition it is not the case of the petitioner that the allegations of lapses on his part are false or incorrect. These are some additional reasons dissuading this Court from exercising its extraordinary equitable jurisdiction under Article 226 of the Constitution in the case in hand. 8. In view of above, I find no merit in the writ petition. Dismissed. ————