Dr Niranjan Sahu vs State of West Bengal and Others

Bhagabati Prasad Banerjee, J.—This is an appeal against the order and judgment dated December 6. 1994, passed in Civil Order No. 14247(W) of 1994. by the learned Trial Judge, disposing of the writ application along with the application for vacating the interim order. The matter arises in this way. The appellant/petitioner who is the Head Master of Futigoda High School, filed a writ application challenging the validity of the order of suspension and the show-cause notice. while moving the writ application, an interim order of injunction was issued staying the operation of the order of suspension that was passed against the appellant/petitioner. The members of the Managing Committee filed an application for variation and/or vacating the interim order, disposed of the writ application by upholding the submissions made by the respondent members of the Managing Committee that the "relevant rules provide for the action taken by the Managing Committee of the School. The rules, in my view, amply protect the delinquent, at every stage, approval of the Board has to be taken and the School authorities cannot delay the matter having regard to the time frame mentioned in the rule itself.

The learned Trial Judge, while disposing of the writ application, granted liberty to the Board and the school authority to proceed with the matter in accordance with Law.

It appears that the Managing Committee had adopted a resolution on August 7, 1993, by appointing a fact finding inquiry committee in respect of certain allegations against the appellant/writ petitioner and that it is stated that the said fact finding inquiry committee had submitted a report to the Managing Committee, and the same was considered in the meeting of the Managing Committee of the School on August 10. 1994, and that it is stated that on consideration of the said report, the Managing Committee issued a notice to the petitioner putting 22 questions to the Appellant/petitioner for answer. It is stated that this was the charge-sheet For illustrating the nature of the charges, it is necessary to highlight the questions that have been framed for answer :

(1) How Physical Education panel of 1994 could be prepared when there was no record of 1997

(2) Why the attendance sheet, academic certificate of the candidates appearing to the said panel were not there ?

(3) Why excess amount was drawn from Salary Account ?

(4) Why resolution book of the school went out and travelled?

(5) On whose advice--a panel was prepared ?

(6) Why the original papers of the panel were not in the school ?

It is not necessary to set out all the questions. All the questions were in this form whereupon the appellant/petitioner was given time to submit his reply.

Thereafter, by the latter dated September 25, 1994. the appellant/ petitioner was suspended for an indefinite period of time on the allegation that in spite of giving warning, times without number, the appellant/ petitioner indulged in attitude contrary to a teacher and further as a Head Master indulging in various corrupt practices. Copy of the order of suspension was also forwarded to the Officer-in-Charge of the local police station.

Thereafter, by the latter dated 14.12.1994, the petitioner was served with a charge sheet in which it was alleged that the petitioner has challenged the order of suspension and obtained an exparte injunction. but the same was vacated on 6.12.1994, and that after considering the situation as existing as well as the totality of the activities of the appellant/ petitioner as well as suspicious movement of the petitioner as well as works amounting to corruption as well as misbehaviour, the Managing Committee, in its meeting dated 11.12.1994. decided to issue a charge sheet for dismissal from service and accordingly a charge sheet was issued directing him to give reply. In this charge sheet it was alleged that the writ petitioner has forged the signature of the earlier teacher-in-charge and prepared a panel which was forwarded to D.I.''s office and with the help of an officer, got the said panel approved, but the original copy was not got and that the original copy was not in the school. The second charge was that when there was demonstration in the school, at that time, he flouted the Managing Committee without having a selection committee, by use of force, took interview for panel according to his choice and why without the resolution of the Managing Committee, he forwarded the same to the D.I.''s Office ? The third charge was that he was indulging in inciting the antisocial people of the area and being drunk allowed them to the school and create trouble and give treat to teaching and non-teaching staff and above all why he was flouting the Managing Committee ? The fourth charge was that the resolution of the Managing Committee held on April 3, 1994, was written by him according to his own desire and got the same signed by some else without getting the same signed by the President. On the basis of this allegation, he was directed to show cause why be should not be removed on the basis of aforesaid allegations and he was directed to give a reply.

We are not inclined to go into the merits of the charges and/or the allegations made against the appellant/petitioner, as this Court is not concerned about the merits of the case, but the court is concerned about the decision-making process in the writ petition, the appellant/ Petitioner has alleged violation of the provisions of rule 38(8) by the Managing Committee and stated that there are several stages of the departmental proceedings under the rules which are required to be followed before a teacher could be punished for disciplinary proceeding. It was further stated in the writ petition that the order of suspension as well as charge sheet and the proceedings were continued without obtaining approval of the Board as required under the rules.

In the application for variation and vacating of the interim order, no fact was brought regarding the compliance of the statutory requirements by the Managing Committee in this behalf and further no affidavit-in-opposition was filed by the Managing Committee controverting any of the allegations and/or the statements made in the writ application But the learned Trial Judge has disposed of the writ application on the basis of the said application for vacating the interim order without touching the points raised in the writ application.

In the writ application for vacating or variation of the interim order, it was not stated by the Managing Committee that the provisions of rule 28(8) had been complied with by the Managing Committee in respect of the disciplinary proceedings, but under rule 28(8) of the said rules, the Managing Committee shall first draw up a formal proceeding and issue charge-sheet to the teacher concerned and offer him reasonable facilities for defending himself. The teacher and the employee proposed to be proceeded against should submit an explanation and the Managing Committee should send to the Board all relevant papers including the charge sheet, explanation submitted by the teacher and/or the employee concerned and the reasons which the Committee decides in favour of taking disciplinary action. It is also provided that if the Board considers that there are sufficient grounds for taking disciplinary action, the Committee should issue formal notice calling upon the teacher concerned to show cause why he should not be dismissed or removed from service. The Managing Committee then shall again sent to the Board particular relevant papers with the recommendations of the Managing Committee for the proposed action to be taken and that the decision of the Board in this behalf could be finally binding on all the parties. So far as the order of suspension is concerned, it is specifically provided in rule 28(9)(viia) that the Managing Committee has the power "to suspend a teacher or an employee where such suspension is in the interest of the Institution, pending drawal of proceedings against the person concerned within ninety days from the date of suspension and during the period of suspension, the person concerned shall be paid pay and allowance equal to fifty per cent of the pay and allowances drawn by him immediately before such suspension. Such steps shall be referred to the Board within seven days of such action for approval The person affected by the decision of the Committee may, however, make his/her representation to the Board

It does not appear that the change sheet was forwarded to the Board under rule 28(8) of the said rules. It also does not appear that the order of suspension was forwarded to the Board for its approval within seven days from the date of issue of the order of suspension as mandatorily remand under the rules.

Admittedly, no inquiry committee was appointed and the copy of the preliminary enquiry report on the basis of which charge sheet to the form of questionnaire was given to the petitioner and that excepting the issue of a questionnaire for answer, the appellant/petitioner was not given any opportunity and/or hearing in the matter and that the application to hold an enquiry to find out the truth or otherwise of the allegations made against the teacher concerned is there. There are three requirements in such departmental proceeding. Firstly, the charge sheet along with the explanation has to be forwarded to the Board for its approval. Secondly an enquiry has to be made after giving the teacher concerned an opportunity of being heard and in that enquiry the Managing Committee has to produce witnesses and/or the documents in support of the charges and that after enquiry if the teacher concerned is found guilty of the charges, in that event the Managing Committee would issue a show cause notice and obtain an explanation from the teacher concerned which would be forwarded to the Board with the recommendation made by the Managing Committee proposing punishment and that ultimately the Board will take the decision.

In the Instant case, in our view, there was no proper charge sheet inasmuch as it is well-settled principle that change sheet in the form of a questionnaire is not a valid and/or a proper charge sheet on the basis of which a person could not be proceeded with departmentally.

Secondly, the Supreme Court, in the case of Surath Chandra Chakrabarty Vs. State of West Bengal, have held that if a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him. The Supreme Court highlighted the necessity of furnishing the statement of allegations and held that the object of furnishing the statement of allegations is to give all necessary particulars and details which would satisfy the requirement of giving a reasonable opportunity to put up the facts.

The Supreme Court, in the case of Meenglas Tea Estate Vs. Its Workmen, have held that it is an elementary principle that a person who is required to answer a charge. must know not only the accused on but also five testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charges and to pot such relevant questions by way of cross examination as he desires. Then he must be given a chance to rebut the evidence led against him. Into is fee barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can he accepted. A departure from this requirement in effect throws the burden upon me persons charged to repel the charge without first making it out against him. An enquiry consisting merely of putting questions to the persons charged without examination of witness in support of the charges nor tendendered any statement made by any witness in evidence, such an enquiry is vitiated because it was held not in accordance with the principles of natural Justice.

In the instant case, there was no clear or definite charge containing allegations or imputations against the petitioner. If a disciplinary proceeding is to be initiated, the first requirement is that definite charges have to be framed against the delinquent and alongwith the charges the statement of allegations has to be furnished and further more, the list of witnesses and the list of documents on the basis of which charges are proposed to be sustained have to be disclosed. After the charge sheet in this manner is furnished to the delinquent, in the event he has to submit his reply to the charge sheet, either denying or accepting the same. A delinquent cannot reply to the charges unless the charges are clear and are not ambiguous arid not wanting in material particulars.

Admittedly, in the instant case, a peculiar procedure was adopted, which has. on the face of it, resulted in substantial failure of justice apart from denying the petitioner the reasonable opportunity of being board. This may because of the fact that the Managing Committee members were not aware of their duties and/or obligations in this behalf.

Secondly, the order of suspension has not been forwarded to the Board to the Board within seven days for his approval. The most peculiar part of the case is that the first charge sheet in the form of questionnaires was submitted numbering about 22. But, subsequently, those charges in the form of questionnaire were again served upon the appellant/ petitioner. This was done after the writ application was disposed of by the learned trial Judge.

Accordingly, in the facts and circumstances of the case, we have no hesitation in holding that the charges in the form of questionnaire numbering about 22 issued against the petitioner pursuant to the resolution of the Managing Committee dated 20 8-1994. Annexure A. to the petition, have been abandoned and dropped by the Managing Committee, but they kept the order of suspension alive and issued a fresh charge sheet in the form of four questionnaires, in which he had been asked to show cause why he should not be dismissed from service on the basis of the same.

From the minutes of the Managing Committee meeting dated September 25, 1994, it appears that in the resolution it has been recorded that the appellant/petitioner should be removed from service and it was recorded that some of the members openly demanded removal of the appellant/petitioner.

It further appears that some of the members of the Managing Committee including the Secretary of the Managing Committee who had issued all these show cause notices and/or the letters, wrote a letter addressed to the Board and to the learned Advocate appearing on behalf of the Managing Committee that the said members of the Managing Committee decided not to contest the appeal preferred by the appellant and stated that they are not interested to proceed with the Court cases and they were taking steps to withdraw the order of Suspension forthwith. True, that some of the members of the Managing Committee may take a decision, but in order to constitute a binding decision on the Managing Committee, there must be a resolution of the Managing Committee and accordingly the same cannot be said to be valid and legal. But. one thing is clear that these are the persons in charge of the management of the school who are not aware of the rights, duties and obligations under the law and who can change their position from time to time according to their own convenience. It may be that they decided to take such course of action accordingly to their choice which could be in the interest of the institution, but we are not concerned in this appeal with regard to the same.

On the basis of the materials on record and the manner in which the matter was sought to be proceeded with. we are dearly of the view that the departmental proceeding was kept pending and continued without complying with the mandatory requirements of the provisions of Rule 28(8) of the said rules and the Managing Committee cannot proceed with the esquire unless the maters are approved initially by the Board after conclusion of the proceeding. Thirdly, no enquiry was held. No proper charge sheet was issued, no set out of allegations containing the allegations giving particulars and details of the allegations on the basis of which charges have been framed had been given to the petitioner.

Further, charge sheet in the form of questionnaire could not be sustained as on the basis of these questions it is not possible for anybody to understand the nature and extent of the charges which he has to meet and which he has to reply. It is needless to point out that charge sheet must contain all allegations and statement of allegations. The charges should not be vague and/or cryptic.

Accordingly, in our view, there was no valid and/or proper charge sheet on the basis of which a departmental proceeding could be proceeded with. Further, the principles of natural justice, were not observed. Secondly, the mandatory provisions of Rule 28(8) were not complied with, no enquiry was held and the first charge sheet was abandoned and the second charge sheet was again given keeping the order of suspension alive in contravention of the provisions of rule 28(9)(viia) of tile said rules.

Accordingly, we set aside the departmental proceedings as well as the order of suspension. But considering the nature of the allegations and counter-allegations. we are of the view that in the interest of the institution, the Managing Committee should again be given leave to proceed afresh in accordance with law by issue of a valid and proper charge sheet giving charges in a manner which is not wanting in material particular or vague and along with a statement of allegations and after observing the principles of natural justice as indicated above. They will be at liberty to proceed after observing the statutory provisions contained in Rule 28(8) of the rules.

Though we set aside the order of suspension, we direct that in the interest of institution and without prejudice to the rights and contentions of the parties, the appellant should not join the school for a period of six weeks from today and within this period, the respondents would be at liberty to take action and/or steps strictly in accordance with law. For the aforesaid reasons, we set aside the order of the learned Trial Judge.

Accordingly, we dispose of this appeal

Vidya Nand, J.

I agree.