Geetaben Ratilal Patel vs District Primary Education Officer

3. The factual matrix of the case is as follows:

4. In the meantime, on 31st December, 1999, a notice was issued to the appellant regarding her time to time absence and she was thereby informed to explain in writing the grounds for her absence within seven days. But neither written nor oral explanation was received by the authorities. Thereafter, she directly resumed her duties in the school on 25th November, 2000. The Principal of Primary School, Manad had informed the same to Taluka Development Officer, Bharuch, who in turn intimated the same to the District Panchayat Committee, Bharuch. After resumption of duty on 25th November, 2000, the appellant went on leave from time to time without pay. In this respect, by memorandum letter dated 28th July, 2002 she was served with a charge-sheet and informed to submit her explanation in writing within 7 days. Since no explanation was submitted by the appellant, she had been informed in writing vide letter dated 4th March, 2003 to submit the medical certificate of a Civil Surgeon with respect to her illness within 7 days. But neither any medical certificate nor any explanation in writing or in oral, was submitted. By letter dated 30th April, 2003 of Taluka Development Officer, Bharuch, the matter was referred to the higher authority. Thereafter, the final notice was issued by letter dated 9th July, 2003 directing the appellant to explain in writing within 7 days for her continuous absence, irregularity and carelessness towards her duty. The appellant failed to submit her reply or explanation to the said notice within the stipulated period. Therefore, by giving another opportunity of defence, a reminder letter was issued on 25th August, 2003 followed by another letter of similar nature dated 28th August, 2003. Having received no reply again, vide order dated 15th April, 2004 she was dismissed from service by the respondent under Section 24 of the Primary Education Act read with Gujarat Panchayat Services (Discipline and Appeal) Rules, 1997 on the ground of carelessness towards duty, absence from duty, irregularity, breach of orders of the higher authorities and having badly affected the future of the children.

6. The complaint on behalf of the appellant was filed and verified by her father. Therefore, the Commissioner while issuing notice to the respondent authority also issued notice to the appellant on 30th June, 2007 calling upon both the parties to be present on 24th July, 2007 at the time of hearing.

7. At the time of hearing the appellant herself remained present alongwith her father and on behalf of the respondent Shri Maganbhai B. Vasava, Head Clerk and Shri Dilavarshinh A. Raj, Junior Clerk had remained present. The appellant contended that though she was physically healthy at the time of joining the services because of mental illness that developed afterwards she was treated by doctors time to time, who advised her to take rest. She specifically pleaded that since she was divorced by her husband in the year 1998, she started suffering from mental depression which resulted in 40 to 70 per cent mental disability. A certificate issued by the Medical Board of Government Hospital was also produced before the Commissioner.

9. The Commissioner after hearing the parties and on perusal of the evidence held that as the appellant was suffering from 40 to 70 per cent mental disability at the time of dismissal, the said order of dismissal was void. It was also held that if the appellant is not in a position to work in the large educational interest of the students then an appropriate post should be created for her and her appointment to that post be made as per Section 47 of the Act. It was also directed to count the intervening period as continuous period in service without any break and also to select the place of service of the appellant in such a manner that she can live with her parents as she requires constant assistance to become mentally healthy.

8. In view of the aforesaid, I am inclined to pass the following order:-

23. There is nothing on the record to suggest that the respondent authority got the appellant examined by a Government Doctor to determine the duty to be assigned to her. In view of her reinstatement, now the respondent authority may get opinion of the doctor for assigning her duty. In case the appellant is not in a position to perform the normal duty because of her mental condition, the competent authority will apply Proviso to Section 47(1) of the said Act.

24. Having regard to the fact that we have upheld the order passed by the Commissioner, we direct the authorities to reinstate the appellant in service immediately and to pay her regular salary every month. The appellant shall be entitled to arrears of salary w.e.f. 1.2.2008 which the respondent shall pay within three months, else the appellant shall become entitled to interest at the rate of 6% per annum with effect from 1.2.2008 till the actual payment.

25. The appeal is allowed in the manner indicated above and the orders passed by the learned Single Judge and the Division Bench of the High Court are set aside. There shall be no order as to costs.