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Dhangauri Valji Bhatt Vs. District Panchayat - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR320
AppellantDhangauri Valji Bhatt
RespondentDistrict Panchayat
Cases ReferredIn G.T. Lad and Ors. v. Chemicals and Fibres India Ltd.
Excerpt:
- - as the appeal and the cross-objections arise from the said proceedings, the learned advocates of both the sides were heard in appeal as well as in the cross-objections. in order to appreciate the first point for determination it is necessary to have look at certain well established facts of this case. the admiaistrative officer, by his letter dated 25-6-1970 had asked the plaintiff to furnish the certificate of the civil surgeon and before the plaintiff could effectively comply with the said requisition and before the administrative officer decided to reject plaintiff's application, ex. it has been observed in the aforesaid decision that the supreme court has now spoken on the subject finally and the well-settled legal position appears to be as follows: 6. that the employer in some.....s.b. majmudar, j.1. this second appeal is filed by the original plaintiff of regular civil suit no. 113 of 1971 filed in the court of the learned civil judge (j.d.) bagasara-vadia, who dismissed the suit with costs. the plaintiff filed civil appeal no. 34 of 1975 in the district court, amreli. the learned district judge, amreli, party allowed the appeal of the plaintiff. being aggrieved by the partial rejection of her claim by the learned district judge, amreli, the plaintiff has filed the present second appeal. the original defendant respondent has filed cross-objections being aggrieved by that part of the judgment of the appellate court by which the plaintiff's suit was partly decreed. in order to appreciate the real controversy between the parties, it is necessary to have a look at the.....
Judgment:

S.B. Majmudar, J.

1. This second appeal is filed by the original plaintiff of Regular Civil Suit No. 113 of 1971 filed in the Court of the learned Civil Judge (J.D.) Bagasara-Vadia, who dismissed the suit with costs. The plaintiff filed Civil Appeal No. 34 of 1975 in the District Court, Amreli. The learned District Judge, Amreli, party allowed the appeal of the plaintiff. Being aggrieved by the partial rejection of her claim by the learned District Judge, Amreli, the plaintiff has filed the present Second Appeal. The original defendant respondent has filed cross-objections being aggrieved by that part of the judgment of the appellate Court by which the plaintiff's suit was partly decreed. In order to appreciate the real controversy between the parties, it is necessary to have a look at the relevant facts leading to this litigation between the parties. I will refer to the appellant as plaintiff and the respondent as defendant for the sake of convenience.

2. The plaintiff's case is that originally she was working in the District Local Board School as a teacher prior to coming into operation of the Panchayat Raj, and after introduction of the Panchayat Raj in the State of Gujarat she was taken up as a teacher in Panchayat service and she was working as a primary school teacher in a primary school managed by the defendant Jilla Panchayat, Amreli. She received an order dated April 22, 1970 from the Jilla Shikshan Samiti deputing her for training but she was not in a position to proceed for training on medical grounds. She had, therefore, applied for exemption from the said training with necessary medical certificates. Her case is that the Administrative Officer, Jilla Shikshan Samiti, Amreli, by his letter dated 10-8-1970 terminated her service; that she was given no opportunity of hearing before the impugned order was passed against her; that the said order was null, void and contrary to all the principles of natural justice. She, therefore, prayed for a declaration to that effect and claimed reinstatement without any break in service wilfull salary and allowances.

3. The defendant Jilla Panchayat resisted the suit and contended that the plaintiff had no cause of action; that she was an untrained teacher; that her post was not substantive; that she had no right, or title to hold the post; that the termination of her services is not illegal as alleged by her; that the trial Court had no jurisdiction to hear the suit and that the impugned order of termination passed by the Administrative Officer was legal and valid; that as the plaintiff had not joined the training course even though she was directed to join the same, her services were rightly terminated and that the order of termination was legal, valid and in accordance with the law and rules.

4. The learned trial Judge framed issues at Ex. 21 and after recording evidence of the parties came to the conclusion that the impugned order terminating the services of the plaintiff was not void and illegal as alleged by her. It was further held that the said order did not amount to penalty or removal of the plaintiff from service. Consequently, the plaintiff's suit was dismissed with costs by the learned trial Judge.

5. That resulted in an appeal on behalf of the plaintiff before the District Court, Amreli. The said appeal came to be partly allowed by the learned District Judge, Amreli. The learned district Judge took the view that the order terminating the services of the plaintiff was null and void as it was passed without affording any reasonable opportunity to the plaintiff to show cause against the proposed action against her and consequently granted a declaration to the effect that the plaintiff continues in service. He also granted back wages to the plaintiff from the date of termination order till the date of the suit, being Rs. 1320/-, but refused to pass a decree in favour of the plaintiff for backwages from the date of the suit till reinstatement. The appeilant-piaintiff has challenged that part of the appellate decree by which her claioi for salary from the date of the suit till reinstatement was refused by the appellate Court.

6. The respondent Jilla Panchayat has filed cross-objections against that part of the appellate decree by which the plaintiff's termination has been held to be null and void and the plaintiff is directed to be treated as still continuing in the service. The respondent has also challenged the order of grant of backwages from the date of termination order till the date of the suit as passed by the lower appellate Court against the respondent. As the appeal and the cross-objections arise from the said proceedings, the learned Advocates of both the sides were heard in appeal as well as in the cross-objections. Mr. P.V. Hathi, the learned Advocate appearing for the plaintiff contended that once the appellate Court ordered reinstatement of the plaintiff, he ought to have passed the usual and normal order of granting backwages to the plaintiff till the date of reinstatement. On the other hand Mr. Panchai appearing for the respondent panchayat contended that the appellate Court committed an error even in partly decreeing the suit of the plaintiff that the termination order was not null and void arid the plaintiff's suit ought to have been dismissed in toto.

7. In view of the aforesaid rival contentions on behalf of the contesting parties the following points arise for determination in this second Appeal-

1. Whether the impugned order Ex 44 is null, void and ineffective in law.

2. Whether the earlier order Ex. 45 can be treated as sufficient show cause notice to the plaintiff as contended by Mr. Panchai for the respondent.

3. Whether the plaintiff was entitled to full backwages from the date of the suit till reinstatement.

In order to appreciate the first point for determination it is necessary to have look at certain well established facts of this case. The plaintiff was serving at the relevant time as a temporary primary school teacher in the service of the defendant Jilia Panchayat, She was thus a panchayat servant. Keeping aside the controversy whether the plaintiff was a Government servant or not and whether Article 311(2) applies to her case or not, the fact remains that as a panchayat servant the plaintiff could not have been removed from service by way of penalty without following the procedure as laid down by the Gujarat Panchayats Service (Discipline and Appeal) Rules, 1964. In fairness to Mr. Panchai, the learned Advocate for the respondent, he made it very clear that if the impugned order at Ex. 44 is construed to amounting penalty, the procedure as laid down by Rule 7 of the aforesaid rules was required to be followed.. ... ... ...

As stated above, both the learned Advocates for the respective parties agreed that as the plaintiff was a panchayat servant if she was to be punished and if any penalty of removal was to be imposed on her under Rule 5(8) the procedure of Rule 7 wai required to be followed, but the contention of Mr. Panchal was that the impugned order was not by way of penalty and consequently neither Article 311(2) of the Constitution of India nor Rule 5 reid with Rule 7 of the above rules applied to the facts of the present case.

8. In order to appreciate the aforesaid contention of Mr. Panchal it is necessary to have a glance at the backdrop of facts culminating into order Ex. 44. As stated above, the plaintiff was a temporary primary school teacher in the panchayat service working under the control of defendant Jilla Panchayat. By order Ex. 45, dated 2-4-70 she was asked by the Administrative Officer of the District Education Committee, Amreli to proceed for training and to join the training centre by 12-6-1970. The said order at Ex. 45 further mentions that if any teacher wanted exemption from the training course he or she had to apply putting forward the circumstances why such exemption should be granted and such an application was to be made by May 12, 1970, by the concerned teacher. Such an application was required to be supported by necessary documentary evidence. Merely because exemption was asked for it was not to be treated as being automatically granted. A teacher who was not granted such exemption and who did not appear in time for training at the training centre would be deemed to be removed from the service and will have no right in the service of the panchayat. According to the aforesaid order at Ex. 45, the appellant-plaintiff was directed to report for training at the training centre. Her name was shown at Sr. No, 5 in the list of the Primary Teachers who were required to undergo the training course as per the said order at Ex. 45. It is also an admitted fact on the record of the case that the plaintiff did not apply for exemption by May 12, 1970. Instead she gave an application on 1-6-1970 seeking exemption from the training in question on the ground of illness of her child. She prayed for exemption on that ground. She all so annexed medical certificate in support of her aforesaid application. The said application even though late, was entertained by the Administrative Officer of the defendant Jilla Panchayat but ultimately, the said application was rejected on 9-6 1970 and the plaintiff was informed through the Head Master of the school where the plaintiff was working at the relevant time. Immediately thereafter on 11-6-70 the plaintiff gave another application Ex. 42 for exemption on the ground of her own sickness. She annexed with that application a medical certificate issued by the M.O.K.J. Mehta T.B. Hospital, Amargadh, pointing out that the plaintiff needed complete rest for two months and she was treated as an outdoor patient from 8-6-1970. It appears that the administrative officer of the defendant Jilla Panchayat entertained even this application and by an endorsement dated 25-6-1970 below Ex. 42, which is at Ex. 43 on the record of this case, the plaintiff was informed that she was required to produce the certificate of the Civil Surgeon in support of her application dated 11-6-1970 wherein she contended that she required complete bed rest on account of her illness being a T.B. patient. Thus, it is pertinent to note that even the second application given by the plaintiff was not rejected by the Adminstrative Officer of the Defendant Jilla Panchayat instead it was entertained on merits and further proofs in support of her application were called for from the plaintiff. The plaintiff's case is that thereafter she furnished the certificate of the Civil Surgeon, while the finding of the learned Appellate Judge is that her story regarding furnishing of certificate from the Civil Surgecn was not believable. Be that as it may, the fact remains that her application dated 11-6-1970 for exemption never came to be rejected by the defendant or by its Administrative Officer and during the pendency of the said application came to be passed the impugned order Ex. 44 dated 10-8-1970, which was a common order passed against 10 primary school teachers mentioning therein that as these teachers had not appeared for training at the training centre within time, as per the original order dated 22-4-1977 Ex. 45, their services were declared to be terminated and they were informed that they had no rights to their respective services. The name of the plaintiff is at Sr. No. 2 in this common order at Ex. 44.

9. In the backdrop of the aforesaid facts a contention was raised by Mr. Hathi for the plaintiff that the impugned order Ex. 44 passed by the respondents was null, void as it was passed by way of penalty against her without affording her any opportunity to show cause against the impugned action. Mr. Panchal contended that the impugned order Ex. 44 was not by way of penalty at all. It was an order consequential to the prior order at Ex. 45 which had already informed the concerned teacher as on 22-4-1970 that if they did not present themselves at the training centre their services will be deemed to have been terminated and as the concerned teacher did not join the training course, the automatic consequence of termination followed and that was merely brought to their notice by the impugned order at Ex. 44. It is difficult to accept the aforesaid submission of Mr. Panchal. It may be stated that the appellate Judge on a consideration of the relevant facts has come to a conclusion that the impugned order Ex. 44 is by way of penalty. It seeks to remove the plaintiff from service only because she did not join the training course as per the directors of the Administrative Officer. Thus, the act of alleged insubordination is the foundation of the said order at Ex. 44. The administrative officer sought to punish the plaintiff for having disobeyed his directions at Ex. 45. Consequently, penalty is the very essence of the said order. It is obvious that the order Ex. 45 was not an unconditional order. It also provided for an exemption application being entertained by the department at the instance of the concerned teacher who wanted exemption on account of unexceptional circumstances, from joining the training course in that year. The plaintiff had already applied though beyond 18-5-1970. Her earlier application, Ex. 39, though late was entertained on merits and rejected. She again gave another application Ex. 42 which was also entertained and was not rejected till date of the impugned order Ex. 45. Thus, the plaintiff could not have been said to have abstained from attending the training centre without just reason. Even minimum principles or natural justice were not followed in the present case because she was abruptly terminated from the service without giving her slightest chance to explain her case. As stated above, removal from service is one of the major punishments as contemplated by Rule 5 and the procedure as prescribed by Rule 7 for imposing such a major penalty was not followed. Mr. Panchal fairly conceds that the procedure of Rule 7 was not followed. Even provisions of Article 311(2) of the Constitution of India were not followed in the present case, but the contention of Mr. Panchal is that the order of termination is automatic and there was no stigma or penalty imposed thereby. That contention of Mr. Panchal cannot stand at all. As per explanation 6(a) and (b) to Rule 5 termination of the services of a member of the Panchayat service appointed on probation during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation, and termination of the services of a member of the Panchayat Service employed under an agreement in accordance with the terms of such agreement, would not amount to a penalty. Mr. Panchal fairly stated that it was not the case of the defendant panchayat that the impugned order was passed against the plaintiff on account of the terms and conditions of her appointment order. Her appointment order is not on the record of the case. The application of Explanations (vi)(a) and (b) of Rule 5 was out of picture in the present case. It must therefore, necessarily follow that the termination of the plaintiff from service was by way of penalty. Admittedly, no inquiry whatsoever was made by the administrative officer before passing the impugned order, Ex. 44, against the plaintiff. In fact, impugned order, Ex. 44 came as a bolt from the blue to the plaintiff. While the plaintiff's application for exemption Ex. 42, was still being processed. The admiaistrative officer, by his letter dated 25-6-1970 had asked the plaintiff to furnish the certificate of the Civil Surgeon and before the plaintiff could effectively comply with the said requisition and before the Administrative officer decided to reject plaintiff's application, Ex. 42, he passed the impugned order of termination at Ex44, without affording any opportunity to the plaintiff to explain her case or to show cause why her services should not be terminated on account of the alleged insubordination on her part. In the background of these facts, it cannot be said that the impugned termination was not by way of penalty, as tried to be suggested by Mr. Panchal for the respondent. It is pertinent to note at this juncture that under Rule 3 of the Panchayat Servants Conduct Rules 1964, it has been laid down that every Panchayat servant shall at ail times maintain absolute integrity and devotion to duty. According to the defendant the plaintiff, even though called upon to join the training course, did not join the same and it in substance amounted to her lack of devotion to duty or an act of insubordination on the part of the plaintiff For such a conduct of the plaintiff, if she was required to be removed from the service, the procedure laid down by Rule 7 was required to be followed. Even minimum principles of natural justice would have required an opportunity of hearing to be given to the plaintiff before such a penalty order could be passed against her. But nothing of the sort was done in the present case and all of a sudden, without any inquiry whatsoever against thy plaintiff, the impugned order came to be passed by the Administrative Officer. If such an order does not amount to penalty it is difficult to comprehend which order can be said to amount to a penal order especially when by a stroke of pen a Panchayat servant is removed from the service on the allegation of insubordination and absence of devotion to duty. In Second Appeal No. 331 of 1971, decided by P.D. Desai J. on 24/25 November 1970 State of Gujarat v. Madhusudan Tulsidas 14 G.L.T. 77 this Court has laid down, on the basis of various judgments of the Supreme Court, as to when an order can be treated as one amounting to penalty. It has been observed in the aforesaid decision that the Supreme Court has now spoken on the subject finally and the well-settled legal position appears to be as follows:

1. that if a right exist under a contract or service rules to terminate the services of a probationer or temporary servant, the employer can undoubtedly in exercise of the said right terminate the ser vices of the employee;

2. that in such a case, the motive operating on the mind of the employer would be wholly irrelevant;

3. that if the order of termination is however, sought to be founded on misconduct and negligence, inefficiency or other disqualification, then it would be penal in nature and if it is made in contravention of the statutory rules or the protection of Article 311(2), it would be ultra vires;

4. that no abstract proposition could be laid down that where a probationer or temporary servant is discharged without saying any thing more in the order of termination than that the service have been terminated, it could never amount to a punishment in the facts and circumstances of the case;

5. that if the facts and circumstances of the case indicate that the substance of the order was that the termination was by way of punishment, the employee would be entitled to the protection of the relevant statutory rules and Article 311 because it is the substance of the order and not the form which is decisive;

6. that the employer in some cases might be of the view that the conduct of the employee might result in dismissal or removal on an inquiry and, in such cases, he may without holding an inquiry simply discharge the employee with a view to giving him a cha nee to make good in other walks of life without a stigma and such an order of termination would not be penal in nature;

7. that if, on the other hand, the employee was faced with an inquiry on charges of misconduct or inefficiency or corruption or the like and his services were terminated without following the provisions of the relevant service rules or Article 311(2), he could ordinarily claim that the order was ultra vires in other words, if, instead of following the easy course of simply terminating the services without holding any inquiry, the employer chose the more difficult one of starting proceedings against the employee and branding him as a dishonest or incompetent person, the order of termination may be presumed to be penal in nature and;

8. that where the employer holds an inquiry on the basis of a complaint of misconduct against a probationer or temporary servant, the employer must be taken to have abandoned his right to terminate simpliciter and to have undertaken disciplinary proceedings bringing in its wake the protective operation of Article 311. (Reported in 14 G.L.T. 77).

10. In the case of Jai Shanker v. State of Rajasthan : (1966)IILLJ140SC , it has been held by the Supreme Court that the removal of a Government servant from service for overstaying his leave is illegal even though it is provided by the service Regulation that any individual who abstains himself without permission after the end of his leave would be considered to have sacrificed his appointment and may be reinstated only with the sanction of the competent authority. It is further held that a discharge from service of an incumbent by way of punishment amounts to removal from service and the constitutional protection of Article 311 cannot be taken away from him by contending that under the service Regulations the incumbent himself gives up the employment and all that the Government does is not to allow the person to be reinstated. It is true that there is no compulsion on the part of the Government to retain a person vo. satvice if he is unfit and deserves dismissal or removal and one circumstance deserving removal may be overstaying one's leave. But a person is entitled to continue in service if he wants until his service is terminated in accordance with law. It is true that the Regulation speaks of reinstatement but what it really amounts to is that a person would not be reinstated if he is ordered to be discharged or removed from service. The question of reinstatement can only be considered if it is first considered whether the person should be removed or discharged from service. Whichever way one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The regulation involves a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. No doubt Government may visit the punishment of discharge or cemovaf from service on a person who has absented himself by over-staying his leave, but it cannot order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for, if his plea succeeds,, he will not be removed and no question of reinstatement will arise. If may be convenient to discribe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate authority that the removal is automatic and outside the protection of Article 311. A removal is removal and if it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation described it.

11. It is thus very clear that if a Government servant or a panchayat servant is to be removed from service on account of insubordination or alleged non-compliance of the directions of the superior authority for joining the training course the action of the authority seeking termination of the services of such an employee would clearly amount to imposition of a penalty on such an employee and consequently before passing such an order of termination by way of penalty the minimum requirement of principles of natural justice as well as the procedure of Rule 7 of the above quoted rules and the provisions of Art 311(2) of the Constitution have got to be followed. In the present case nothing of the kind has been done by the defendant. Hence lie impugned order at Ex. 44 is ex facie ultra vites, illegal null and void and it has been rightly so held by the learned appellate Judge.

12. That takes me to the second point for determination which arises from the submission of Mr. Panchal. He submitted that if the impugned order Ex. 44 was by way of penalty and that the plaintiff's service was sought to be terminated on account of alleged act of insubordination on the part of the plaintiff, Ex. 45 itself can be treated as a show cause notice to her. To say the least, this is an argument of frustration on the part of Mr. Panchal. Ex. 45 is the prior order dated 22-4-1970 by which a general office order is issued concerning number of primary teachers, calling upon them to join the training session starting from 12-6-1970. The order itself postulates that the concerned teacher on exceptional ground could apply for exemption from the training pursuent to that order. Accordingly the plaintiff did apply, though late, for exemption by two applications and her second application was being processed and was on the file of the authority when he short circuited the matter and abruptly passed the impugned order terminating the services of the plaintiff. Thus, it cannot be said that Ex. 45 itself gave a notice to show cause to the plaintiff calling upon her to show cause why she should not be dismissed from service for not joining the training course. The very cause of action for termination would arise al a stage when the exemption application of the plaintiff would be finally rejected by the authority and it is only thereafter that a question would arise as to whether she was justified in not joining the training and absenting herself from joining the training centre or not. Her application for exemption was still pending before the authority and the administration officer had called for the certificate of the Civil Surgeon and before the plaintiff could produce this certificate, the impuggned order came to be passed. Consequently at no stage any show cause notice was given to the plaintiff as to why her services should not be terminated on the ground of alleged misconduct on her part. Such a show cause notice was never served upon the plaintiff. She was also net given any opportunity of being heard and the detailed procedure of Rule 7 was not followed at all. Mr. Panchal fairly submitted that Rule 7 procedure was not followed in the present case. If that is so the impugned order cannot survive for a moment. It is impossible to hold that the general order Ex. 45 can be treated as a show cause notice to the plaintiff.

13. That takes me to the third point for determination which arises from the contention of the appellant-plaintiff. Mr. Hathi appearing for the appellant-plaintiff contended that once it is found that the impugned order of termination of service is null and void and that the plaintiff was entitled to be reinstated in the service, the order of backwages ought to have followed as a matter of course. The appellate Judge, according to Mr. Hathi, was patently wrong when he held that the plaintiff was not entitled to backwages from the date of the suit till reinstatement. He invited my attention to paragraph 18 of the Judgment of the appellate Court on this aspect. A look at paragraph 18 of the appellate Judgment shows that according to the learned appellate Judge the plaintiff had succeeded on technical ground as she was not given the opportunity to explain as to why her services should not be terminated. In that view of the matter, according 10 the learned Appellate Judge, the ends of justice will be served if the appellant-plaintiff was not awarded salary etc. from the date of the suit till reinstatement because the plaintiff had not worked as a teacher during the said period. This is the only ground on which the plaintiff was refused backwages from the date of the suit till reinstatement. The said reason is patently erroneous in law. It has been now well settled that once the order of reinstatement is granted, backwages should follow as a matter of course. In G.T. Lad and Ors. v. Chemicals and Fibres India Ltd. : (1979)ILLJ257SC it has been held that where reinstatement has been directed by the Court, the entire backwages must follow as a matter of course. Of course there is a discretion in the Court having regard to special circumstances if any to modify this normal rule. In the facts of that case it was held that where backwages stretched over a period of six years and they had to be computed on a much higher scale because of two settlements occurring in the meanwhile, the employee ought to have been granted 75% of the backwages. In the present case it is found that the learned appellate Judge has not given any cogent reason for depriving the petitioner of her backwages. It may be mentioned at this stage that the appellate Judge granted her backwages from the date of the termination order till the date of the suit. Once he granted that relief the second relief would automatically follow. It is not understood how the learned appellate Judge pursuaded himself to hold to the contrary. The only ground which he has given for depriving the plaintiff of the benefit of the normal rule is that the plaintiff has not worked as a teacher during this time. This is certainly a totally extraneous ground. The plaintiff was prevented from working as a teacher during the relevant time as the termination order was holding the field till it came to be set aside by the Court. It is difficult to comprehend how any fault can be found with the plaintiff for not having worked as a teacher when the defendant would never have allowed her to do so, the termination order not with standing. Once the order of termination is found to be null and void and the appellant is declared to be continuing in service, the order of backwoges ought to have followed. No special reasons whatsoever have been pointed out by the learned Appellate Judge for depriving the appellant plaintiff of this normal and usual relief. When faced with this difficulty Mr. Panchal submitted that even though the learned appellate Judge may not have given any good reason to deprive the plaintiff of this relief there were certain salient facts emerging from the record of this case which showed that the plaintiff did not deserve this full relief. He submitted that in the past the plaintiff was given four opportunities, but she did not go for the training. Now this reason is neither here nor there. Once the plaintiff was granted exemptions four times in the past the fact of her not joining the training course on those occasions in the past becomes insignificant and no capital can be made out of it when the administrative officer himself had granted the requisite exemptions to the plaintiff in past, may be on four occasions. Mr. Panchal then submitted that the facts of the present case show that on the 5th occasion even though the plaintiff was asked to join the training course, by order Ex, 45, she gave a false application Ex. 39 giving a false reason of sickness of her son. That application was rejected. It is difficult to entertain this contention of Mr. Panchal. It is true that her first application came to be rejected by the defendant, but she has pointed out in that application that her child was only one year eld and was not well. Even though such explanation which on the face of it was reasonable may not have been accepted by the officer, it does not mean that it was a purely false application. It was duly supported by a medical certificate. In any case her second application Ex, 42 was never rejected by the authority and during the pendency of the said application the impugned order was passed short circuiting the entire matter. In this view of the matter it cannot be said that the conduct of the plaintiff was reprehensible enough to deprive her of the back wages only on that ground. It may be noted at this stage that it is not the case of the respondent panchayat that the plaintiff was serving elsewhere during the relevant period, Mr. Panchal ultimately submitted that in the present case the suit is of 1971 and the order of reinstatement was passed by the appellate Court in 1976. Thus, about five years elapsed between the date of the suit and the final order as passed by the lower appellate Court and as such a long period had intervened and as the appellant-plaintiff had already been continued in service without any break and also granted backwages from the date of the termination order till the date of the suit, no backwages ought to be granted to the plaintiff from the date of the suit till the date of reinstatement. Mr. Panchal is right when hs submits that there is a gap of five years between the date of the suit and the date of reinstatement order as passed by the appellate Court. Some time must have also been taken for complying with the said order as this Court had not granted any interim relief staying the operation of reinstatement order.

14. Therefore, in view of the over all facts of this case it appears that the ends of justice will be served if backwages are granted to the extent of 75% to the plaintiff from the date of the suit till reinstatement. That will take care of all the circumstances which can ever be pressed in service against the plaintiff for deciding this question. For arriving at this conclusion I have followed the principles as laid down by the Supreme Court in G.T. Lad's case (supra). In that view of the matter the 3rd point for determination will have to be decided substantially in favour of the plaintiff.

15. As a result of the aforesaid discussion, the appeal filed by the appellant-plaintiff will have to be allowed to a substantial extent. The order passed by the learned District Judge, Amreli dated 22nd March 1976 in Regular Civil Appeal No. 34 of 1975 will be modified and the directions issued in the aforesaid order of the learned District Judge to the effect that 'the plaintiff is not entitled to any salary from the date of the suit till she is reinstated' will stand deleted and instead it will be directed that the plaintiff shall be entitled to 75% of the salary from the date of the suit till she is reinstated. Subject to this modification the decree passed by the learned District Judge shall stand confirmed.

16. In the result, the appeal is accordingly allowed. Cross-objections shill stand dismissed. In the facts and circumstances of the case there will be no order as to costs in the Second Appeal as well as in the cross-objection.


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