DARSHANABEN MAHENDRABHAI GANDHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Feeling aggrieved and dissatisfied with the impugned order dated 23.02.2016 passed by the learned Single Judge in Special Civil Application No.2892/2106 by which the learned Single Judge has dismissed the said petition, the appellant herein - original petitioner has preferred the present Letters Patent Appeal under Clause 15 of the Letters Patent.

(2.) That the appellant herein - original petitioner was appointed on 12.09.2002 as "Vidya Sahayak" on the fixed salary of Rs. 2500/and posted at Shankarpura Primary School, Taluka Nadiad, District Kheda. That after completion of 5 years of service on 22.10.2007, she was placed in the pay scale of Rs. 4000 - 6000 in the very school. In the meantime the petitioner married with one Darshankumar Pandya. In the year 2008, her husband left for London on student Visa. The original petitioner applied for leave for the period between 08.09.2008 to 07.12.2008 as she wanted to join her husband at London. It appears that while at London she conceived and therefore, was unable to return to India. Therefore, on 18.12.2008 alongwith a medical certificate she requested the school authority to extend her leave. It appears that extention was declined. The original petitioner delivered a baby boy on 05.04.2009 at London. That despite the expiry of the leave period the original petitioner did not resume the duty and therefore, the original petitioner was served with the showcause notice which was served upon the original petitioner. The original petitioner send an undertaking that she will resume the duty from June 2009. However, even thereafter, the original petitioner did not resume the duty. One another showcause notice was served upon the original petitioner which was not responded by the original petitioner. That thereafter the formal inquiry was initiated by the Management against the original petitioner for remaining unauthorizedly absent. A public notice was given. That after following due procedure as required under the provisions of the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1997 (hereinafter referred to as "Rules, 1997"), the original petitioner came to be dismissed from service/removal from service on the ground of remaining unauthorizedly absent. It appears that thereafter in the year 2012, the original petitioner returned from London. It was the case on behalf of the original petitioner that after she returned to India alongwith her husband on 01.07.2012, she learnt that she was removed from service on the ground of misconduct of remaining absent without leave. Therefore, the original petitioner approached District Primary Education Tribunal (hereinafter referred to as "Tribunal") by way of an application under Section 24(2) of the Bombay Primary Education Act, 1947. The learned Tribunal looked into the matter and by order dated 21.11.2015 rejected the application, thereafter, affirming the order of removal of the original petitioner from the service. 2. 1 Being dissatisfied with the order passed by the learned Tribunal, the original petitioner filed the aforesaid Special Civil Application No.2892/2016 before the learned Single Judge. Before the learned Single Judger it was argued that the hardship will be caused to her if the order of removal is not set aside. It was submitted that since major punishment of removal from service was imposed, the same could not have been imposed in absence of formal inquiry. That by impugned order the learned Single Judge dismissed the original petitioner by holding that a proper procedure was followed as provided under Rules, 1997 and formal inquiry was held and initiated, however the original petitioner failed to respond to the showcause notice issued to her and therefore, the authorities were justified to conduct an inquiry on their own and ultimately thought it fit to remove the original petitioner from service. Considering the fact that the original petitioner was serving as a teacher and remaining unauthorizedly absent for approximately 4 years and that too without getting the leave sanctioned, such a misconduct cannot be tolerated as a teacher, the learned Single Judge has confirmed the order of removal. 2. 2 Feeling aggrieved and dissatisfied with the impugned order passed by the learned Single Judge in dismissing the petition, the original petitioner has preferred the present Letters Patent Appeal.

(3.) Shri Nikul Soni, learned Advocate appearing on behalf of the appellant herein - original petitioner has vehemently submitted that in the facts and circumstances of the case, the learned Single Judge has materially erred in dismissing the petition and confirming the order of removal. 3. 1 It is further submitted by Shri Soni, learned Advocate appearing on behalf of the original petitioner that the learned Single Judge has properly appreciated the fact that before imposing the major penalty of removal, no departmental inquiry was initiated and held against the original petitioner. 3. 2 It is further submitted by Shri Soni, learned Advocate appearing on behalf of the original petitioner that as such there were valid reasons for the original petitioner to resume the duty after the period of leave was over and as her son was sick. It is submitted that therefore in the facts and circumstances of the case, the order of removal can be said to be disproportionate to the misconduct of remaining absent unauthorizedly and without getting the leave sanctioned. Making above submissions it is requested to admit/allow the present Letters Patent Appeal.