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Gujarat High Court
Judgename :S.D.Shah
HIRABEN JIVANBHAI CHAUDHARI - Appellant
Versus
R.C.RAVAL - Respondent
S.C.A. 8496 of 1991
Decided On : 06/22/1992
Constitution of India – Articles 226 and 311 – Section 19, 23, 226 – Gujarat Panchayats Act, 1961 – Appointment to the post of Primary Teacher – P. T. C. examination - As per procedure marks obtained in the subjects of Yearly Work and Yearly Work marks being 56, 66 and 33 respectively were required to be deducted and after such deduction had obtained 560 marks – Such application was signed by petitioner herself and is filled in by her in her own hand-writing – Petitioner had also applied for appointment as Primary Teacher to District Education Committee Mehsana and in her application she has stated that she had obtained marks in P. T. C. examination and as per procedure marks obtained by her in subjects of yearly Work and Sahayak Udyog Yearly Work were to be deducted and after deducting such marks she has mentioned 558 marks as obtained by her in her own application in her own hand-writing and said application was signed by her said applications submitted by petitioners were checked by checking Officer and petitioners were on strength of details supplied in application forms were called for interview – At time of interview both petitioners have produced marks-sheets in which they have shown total marks obtained by them as 711 out of 1000 and 712 out of 1000 respectively – Held, Constitution of India or by Statutory Rules/regulations therefore do not accept submission – Court opinion respondent is not required to hold regular departmental enquiry for imposition of penalty stipulated by Panchayat Service Rules. Such a contract of employment can be avoided by the employer simply by notice show cause and opportunity to the employee to tender his explanation and his documentary evidence and after coasidiring such explanation and evidence by positive decision of the employer to avoid the contract. Once such decision is taken in good faith considering the explanation of employee the employer has exercised his right of avoiding contract and public interest and public administration demands that such person is not permitted to pitch his case in higher pedestal, than this findings on first and third propositions would thus make it clear that cases like present one should be decided by resorting to second proposition namely of issuing notice to employee calling upon him to show cause and to tender his explanation for his conduct employee should tender his explanation and his doumentary evidence –Explanation of employee along with documentary evidence tendered by him should be considered independently and not in biased manner by employer and after consideration employer should take a positive decision as to whether it would like to avoid the contract and once such decision is taken employer can by an order rescind contract of employment – Found that respondent has straightaway without issuing any notice and without afording opportunity to petitioners to show cause or to tender their explanation and without considiring such explanation proceeded to pass impugned orders of termination which are prima facie stigmatic in character – Admittedly respondent has not followed elementary rules or rules of natural justice and therefore the orders of termination passed against petitioners are required to be quashed and set aside with liberty to respondent to issue notice to petitioners calling upon the petitioners to tender his/her explanation and to produce his/ her evidence in support of his/her explanation and after considering such explanation and evidence to pass appropriate order avoiding the initial contract of employment on the ground that it was obtained by fraud misrepresentation or mistake as case may be – Petition is dismissed.
( 1 ) THESE two petitions filed under Art. 226 of the Constitution of India raise common questions of law based on almost common facts, and therefore, they are decided by this common judgment.
( 2 ) THE relevant facts giving rise to present petitions shortly stated are as under : (i) Both the petitioners applied to District Primary Education Committee, mehsana District, for appointment to the post of Primary Teacher. (ii) The petitioner in Spl. C. A. No. 8496 of 1991 in her application stated that in the year 1984 she had obtained 711 marks out of 1000 marks in P. T. C. examination. She also stated in such an application that as per the procedure marks obtained in the subjects of Samuh Jivan, Buniyadi udyog Yearly Work and Sahayak Udyog Yearly Work marks being 56, 66 and 33 respectively were required to be deducted and after such deduction she had obtained 560 marks. Such application was signed by the petitioner herself and is filled in by her in her own hand-writing. (iii) The petitioner in Spl. C. A. No. 8497 of 1991 had also applied for appointment as Primary Teacher to District Education Committee, Mehsana and in her application she has stated that she had obtained 712 marks out of 1000 marks in P. T. C. examination and as per the procedure marks obtained by her in the subjects of Samuha Jivan, Buniyadi Udyog yearly Work and Sahayak Udyog Yearly Work were to be deducted and after deducting such marks she has mentioned 558 marks as obtained by her in her own application in her own hand-writing and said application was signed by her. (iv) The said applications submitted by the petitioners were checked by the checking Officer and the petitioners were on the strength of details supplied in the application forms were called for interview. (v) At the time of interview, both the petitioners have produced marks-sheets in which they have shown the total marks obtained by them as 711 out of 1000 and 712 out of 1000 respectively. The petitioners, at that time, did not produce original marks-sheets, but only produced the copy of marks-sheets. (vi) The percentage of marks obtained by the applicants were worked out on the basis of the information supplied by the applicants in their application forms and accordingly the petitioner in Spl. C. A. No. 8496 of 1991 had obtained 597 marks while the petitioner in Spl. C. A. No. 8497 of 1991 had obtained-percentage of marks. The select-list included the candidates obtaining marks higher than 56. 1%, and therefore, the names of both the petitioners came to be included in the select-list since as per the information supplied by them they had obtained marks more than 56. 1%. The office of the District Primary Education Officer has, however, insisted for production of original marks-sheets and when the original marks-sheets of the two petitioners were received, it was found that the petitioner of Spl. C. A. No. 8496 of 1991 had obtained 643 marks out of 1000, i. e. , 51. 98% as per the procedure after deducting the marks of 3 subjects and therefore, her name was not required to be included in the select-list. The petitioner in Spl. C. A. No. 8497 of 1991 had obtained 654 marks out of 1000, i. e. , 54. 42% as per the procedure of counting after deducting marks of three subjects, her name also was not liable to be included in the select-list. (vii) On inclusion of their names in the select-list as and when the vacancies occurred the petitioners were appointed to the post of Primary Teacher vide orders of appointment, dated 15/11/1986. (viii) On coming to know about the fact that each petitioner has obtained appointment to the post of Primary Teacher by stating facts which were not true to their knowledge and the marks stated in the application when compared to the original marks-sheets of P. T. C. examination where not correct and hence by practising fraud upon the District Education committee they have obtained appointments, the D. E. O. , Mehsana the respondent No. 1 herein vide order, date
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