Bishu Pada Sahu vs State of West Bengal

Satyabrata Sinha, J.—The writ Petitioner-Appellant was appointed as a Headmaster at Harinarayan Chak Vidyamandir (hereinafter referred to as the School). Allegedly on the ground that he had defalcated a huge amount, a criminal case was instituted against him. Allegedly he absconded with effect from February 25, 1976. However, according to the Petitioner, he was prevented from joining the school. He preferred an appeal before the Appeal Committee on August 29, 1979 constituted under the provisions of West Bengal Board of Secondary Education Act, 1963 which was registered as Appeal No. 89 of 1979. At that point of time, an administrator appointed by the Board was running affairs of the school. The Petitioner has contended that he was also advised by the then Secretary of the School by a letter dated March 10, 1976 not to come to the School unless the situation becomes normal as otherwise his life would be in danger. The said appeal having not been disposed of, the Petitioner filed a writ petition which was registered as CO. No. 14505(W) of 19982 and the same was disposed of by an order dated December 24, 1982 by directing the Appeal Committee to dispose of the said appeal. The said appeal was dismissed by an order dated September 3, 1983. In the order it had been noticed that the Petitioner misappropriated governmental money amounting to Rs. 80,000.00 and he had been absconding since February 24, 1976 after a complaint was lodged with the Panskura Police Station. However, the said Appeal was dismissed on the ground that no order had been passed by the Managing Committee and as such the Petitioner was free to make an attempt to join the school and in the event, if he is not in a position to join, he may inform the Directorate of the Board of Education, Pursuant thereto, the Petitioner expressed his intention to join the school by a letter dated November 18, 1983. The Administrator, however, by a letter dated November 29, 1983 replied:

In reply, I am to inform you that since you have left the School on your own in the year 1976, without any intimation, your request to allow you to join in the School now in November, 1983, cannot be entertained and, as such, the question of allowing you to join the School as its Headmaster after the lapse of almost 7 years, does not arise at all.

The Petitioner, it appears, has not questioned the legality or validity of the said order. However, by a letter dated November 29, 1983 the Administrator refused to allow the Petitioner to join the School stating that he in terms of Rule 11 of the Leave Rules would be deemed to have resigned from services. The said order is contained in Annexure ''G'' to C.R. No. 2107(W) of 1984.

The Petitioner filed a writ application questioning the said order. Although an interim order was passed, therein the same was vacated by an order dated March 2, 1984 where againstan appeal being F.M.A.T. No. 671/ 84 has been filed. The Petitioner filed another writ application questioning another order passed by the administration which was marked as C.R. 7059(W) of 1984, U.C. Banerjee J. (as His Lordship then was) dismissed the writ application summarily stating:

In this writ petition, the main grievance of the writ Petitioner is against an order of dismissal dated April 23, 1984 by the Administrator. The Principal ground as appears from the order of dismissed is that since the Petitioner was not atending the School and was not discharging the duties as the Headmaster for a period of more than five years without any authorisation, the Petitioner was treated to have resigned from the post of Headmaster and as such the order of dismissal followed. On repeated enquiries by the Court, Mr. Banerjee could produce some evidence as regards the Petitioner''s attending on January 17, 1984 but not any date prior thereto. There is no evidence on record to show to prove that in fact the Petitioner did joint the School any day prior to 1984 from February, 1976. Mr. Banerjee, however, submitted that his client joined the School on the January 17, 1984. As a matter of fact the School, Register produced by the Respondent''s Advocate shows an endorsement to that effect but in my view that endorsement does not in any way lend any assistance to the Petitioner''s case, firstly, because it is beyond more than five years and secondly the signature on the Attendance Register as appears from the documents itself cannot be termed to be.a regular signature. In that view of the matter, I am unable to accept the contention of the Wri.t Petitioner. While it is true that there is an order of suspension or dismissal but the factum of Petitioner''s presence between 1976 and 1984 could not be established in any way. As such, this writ petition must fail. The writ petition is, therefore, dismissed. No order as to costs. All interim orders are vacated.

F.M.A. No. 200 of 1988 has been filed by the Appellant being aggrieved by and dissatisfied with the said order.

Mr. Kashi Kanta Ivloitra, the Learned Counsel appearing on behalf of the Appellant, inter alia, submitted that the services of the Petitioner could not have been dismissed relying on or on the basis of Rule 11 of the Leave Rules without complying with the principles of natural justice. Reliance in this connection has been placed on Mafatlal Naraindas Barot Vs. Divisional Controller, State Transport Corporation and Another, , Deokinandan Prasad Vs. The State of Bihar and Others, , Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, and D.K. Yadav v. J.M.A. Industries Limited 1993(3) S.C.C. 249 . The Learned Counsel submits that the Appeal Committee committed an illegality in so far as it refused to exercise its jurisdiction by only stating that no order had been passed by the Managing Committee although clearly the Administrator had refused to allow the Petitioner to join his service and invoked the provisions of Rule 11 of the Leave Rules in terms whereof the Petitioner would be deemed to have resigned from his services. The Learned Counsel contends that the Respondents being a State within the meaning of Article 12 of the Constitution of India cannot take recourse to doctrine of hire and fire. It has further been submitted that in view of the fact that as the Petitioner''s services had been terminated without initiating any departmental proceedings and without complying with the provisions of Rule 28(8) of Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969, the impugned order must be held to be bad in law. According to the Learned Counsel, the Learned Judges failed to take into consideration the fact that even the authorities of the School had recognized the services of the Petitioner and in fact the Petitioner attended the School for a day. In this situation, urged Mr. Moitra, the Learned Counsel that the Court could have lifted the veil with a view to ascertain the real reason for terminating the service. Reliance in this connection has been placed on Om Prakash Goel Vs. The Himachal Pradesh Tourism Development Corporation Ltd., Shimla and another,

Mr. Patnaik, the Learned Counsel appearing on behalf of Respondents, submitted that the Petitioner has not questioned the vires of Rule 11 of the Leave Rules. It has further been submitted that the Petitioner has also not questioned the validity of the letter dated November 29, 1983 and, thus, he is estopped and precluded from questioning the subsequent letter as contained in Annexure ''G'' to the writ petition (C.R. 2107(W)/84). According to the Learned Counsel, the Administrator of the School cannot be said to have acted illegally inasmuch as he has merely followed the statutory rules. It has''been submitted that as no panishment had been imposed on the Petitioner, the principles of natural justice were not required to be complied with. Reliance in this connection has been placed on The United India Insurance Co. Ltd. v. Partha Sarathi Banerjee and Ors.1997(2) C.L.J. 348. It was submitted that the Administrator cannot be said to be biased as against the Petitioner. The Learned Counsel contend that in the mean time a Headmaster had been appointed and worked in the School from 1989 to 1995.

Rule 11 (i) of the Leave Rules reads thus:

(i) No permanent teaching or non-teaching employee shall be granted leave of any kind for a continuous period exceeding 5 years. Where such an employee does not resume his or her duty after remaining on leave for a continuous period of 5 years or where such an employee after the expiry of Iris or her leave remains absent from duty, otherwise on ground of suspension for any period, which together with the period granted to him or her exceeds 5 years, he or she shall, unless the Board on reference from the School authorities and in view of exceptional circumstances of the case, otherwise determines, be deemed to have resigned and shall accordingly cease to be in the employment of the School.

(ii)....

The said rules had been made by the State in exercise of its statutory power conferred upon it under West Bengal Board of Secondary Education Act, 1963.

A bare perusal of Rule 11 (i) will show that a teaching and non-teaching of a permanent staff of an institution would be deemed to have resigned from his services if he remains absent for a period of exceeding 5 years, unless the Board on reference from the School authorities and in view of exceptional circumstances of this case otherwise determines.

There cannot, therefore, be any doubt whatsoever that when a person remains on leave for a period of more than 5 years, he should be given an opportunity to join the School. In a recent pronouncement of the Supreme Court in Uptron India Limited Vs. Shammi Bhan and Another, . it has been held that unless the concerned employee is given an opportunity of hearing the order of termination would be bad in law. In the instant case, the administrator admittedly did not initiate any proceedings against the Petitioner. He also, in view of the aforementioned letters, must be held to have not allowed the Petitioner to join the School since 1984. Such an action on the part of the Respondents, therefore, must be held to be illegal.

This, however, leads to a question as to what relief can be granted to the Petitioner. The Petitioner now appears to be 59 years old. He admittedly has not performed his duties as a teacher since February, 1976. Before us the Attendance Register had been produced and it appears that the Petitioner had put his signature on a particular day after the attendances of all. other staff were recorded. He allegedly remained in the school premises only for some time. It is not the case of the Petitioner nor does it appear from the said register that the Petitioner has performed his duties even on that day. In this situation although the Learned Trial Judge cannot be said to have considered the question raised in this appeal, he cannot be aid to have wrongfully refused to exercise his discretion.

The matter relating to joining of this School by the Appellant has also been considered by the learned trial Judge. It is now a trite law that the reliefs granted to a person under Article 226 of the Constitution of India is discretionary in nature. A writ court does not issue a writ only because it is lawful to do so. Reference in this connection may be made to In Re: P.P. Raja Reddy, .

It is not disputed that a criminal case against the Petitioner is pending. The Learned Counsel for the parties have placed documents before this Court from a perusal whereof it appears that the Petitioner had moved this Court in its criminal revisional jurisdiction twice. His last revision application has been dismissed by D.B. Dutta, J., holding that the Petitioner has not made out any case for quashing the trial on the ground of delay.

Furthermore, the Petitioner ought to have questioned the said order dated November 29, 1983. Although the Petitioner has alleged that he was not allowed to join but on his own showing the situation was so explosive that he was not even advised to join the School by the secretary of the Managing Committee. The Petitioner thus, has taken contradictory and inconsistent stand. The fact remains that he has not served the School for a long time. Had the Petitioner been not allowed to join the School, he should have moved the authorities concerned and/or the Board within a reasonable time. He failed and/or neglected to do so. He, on his own showing, approached the Appeal Committee for the first time in 1983. Such delay on the part of the Petitioner disentitles him from an equitable relief.

In Scooters India and Others Vs. Vijai E.V. Eldred, the Apex Court in a similar situation held that a writ petition was not maintainable on the ground of delay. We are, therefore, of the opinion that it is not a fit case in which any relief should be granted to the Petitioner.

The appeal are, therefore, dismissed. In the facts and circumstances of this case there will be no order as to costs.

Appeal dismissed.

D.P. Sircar-I, J.

I agree.