Hiron Thomas Mondal vs State Of West Bengal & Ors

Shampa Sarkar, J

The petitioner was appointed as a head master of Nawpara Rupdaha High School (H.S.) on the basis of a recommendation made by the West Bengal Regional School Service Commission, South Eastern Region. The service of the petitioner as the head master was approved by the District Inspector of Schools (S.E.), Nadia. Vide notification no. 9770/RMSA/SL/55-264/12 dated 30th September, 2013, the school was converted into a Government sponsored school.

The service of the petitioner was governed by the Rules for Management of Sponsored Institutions (Secondary), 1972 (hereafter 'the 1972 Rules').

On the recommendation of the Commissioner School Education West Bengal, by a letter dated 30th April, 2016, the president, Nawpara Rupdaha High School (H.S.), placed the petitioner under suspension with effect from the said date. A disciplinary proceeding was initiated by issuance of a charge-sheet dated 20th July, 2016 by the president of the said school. The statement of imputation of misconduct was annexed to the charge-sheet as Annexure II thereof. The charges against the petitioner were based on dis-satisfaction of the managing committee of the school to the reply filed by the petitioner in response to the show cause notice dated 1st March, 2016. It was resolved that in the interest of the school and in terms of the enquiry report of the Additional District Magistrate (G), Nadia dated 3rd July, 2015 and the recommendation made therein as also in terms of the recommendation of the Commissioner of School Education, West Bengal dated 7th December, 2015 as also the direction of District Inspector of Schools (S.E.), Nadia dated 21st December, 2015, the petitioner would be put under suspension and it was further resolved that disciplinary proceeding would be initiated against the petitioner.

Upon issuance of the charge-sheet, the petitioner was called upon to file his reply to the same. The petitioner then filed a reply to the charge-sheet dated 5th August, 2016. Thereafter, an enquiry officer was appointed. The suspension of the petitioner was approved by the Board. Subsequently, the managing committee of the school removed the earlier enquiry officer and appointed another person as an enquiry officer on the basis of the recommendation of the Sub-Divisional Officer. It is alleged that the enquiry officer also proceeded on the basis of the recommendations of the State respondents and their dictates.

The petitioner in the meantime filed this writ petition praying for cancellation of the order of suspension issued by the respondent no. 6 with a direction to allow him to resume his duties as the head master of the concerned school, cancellation of the entire disciplinary proceeding including the charge-sheet and payment of subsistence allowance which had not been paid to the petitioner. The petitioner has based his claim for reinstatement and quashing of the order of suspension as also the disciplinary proceeding on the basis of a communication received from the Deputy Director of Accounts, School Education Department, Nadia, dated 25th November, 2016. From this communication it appears that a special audit team was constituted by the state respondents and the team did not find any proof with regard to misappropriation of Government money of the concerned school as alleged by the state respondents.

In compliance with the order passed by a co Court, subsistence allowance was paid to the petitioner on the basis of the West Bengal Payment of Subsistence Allowance Act, 1969 and provisions of the 1969 Rules. Thereafter, the matter came up before this Court for final hearing.

The enquiry proceeding was concluded by the second enquiry officer and an enquiry report was filed on 16th August, 2018 and the enquiry officer, who is an Ex Deputy Magistrate and Collector, observed that the petitioner was a disorganised person and not fit to be a head of an institution and recommended= punishment according to the rules. Such report was placed before the meeting of the managing committee on 9th October, 2018. The enquiry report was not accepted. Thereafter, no further enquiry officer was appointed.

The respondent school authorities disclosed in their affidavit the enquiry report, the resolution of the managing committee of the school rejecting the enquiry report and with a further resolution to appoint a new enquiry officer.

However, till date, no such enquiry officer has been appointed, although there was no interim order preventing the school authorities from proceeding further in the matter. The matter has now come up for final hearing.

The petitioner submits that the managing committee did not have the power to continue any disciplinary proceeding or either remove or dismiss a teacher unless the same was approved by the Director of School Education, now the Commissioner.

Admittedly, the petitioner is guided by the 1972 Rules. He relies on Rule 23 of the said Rules. Rule 23 is quoted below:

"23. Powers of the Committee - Subject to approval of the Director and subject to further such direction as the State Government may from time to time issue, the Committee shall have the powers to -

(i) appoint teachers and other employees on permanent and temporary basis;

(ii) extend the services of teachers and other employees beyond the dates of superannuation;

(iii) remove or dismiss teachers and other employees after offering such teachers and employees concerned reasonable opportunity of representing their cases;

(iv) grant leave other than casual leave which shall be granted by the Head of the Institution and by the President of the Committee in the case of the Head of the Institution, and increments of pay to teachers and other employees, according to the rules in force;

(v) grant free studentship or half-free studentship in accordance with the procedure laid down from time to time, but ordinarily with the consent of the Head of the Institution;

(vi) manage funds of the Institution;

(vii) frame annual reports;

(viii) deal with all schemes of development of the Institution and allied matters;

(ix) allocate the total period of holidays in a year, but special holiday for a day or a part thereof on account of death of any prominent person or for any special occasion concerning the Institution may be granted by the Head of the Institution at his discretion;

(x) grant deputation of teachers, where such deputation is in the interest of the Institution in conformity with rules and order on the subject;

(xi) deal with other matters that are brought to the Committee in the interest of the Institution;

(xii) impose minor penalties, like stoppage of one to three increments in pay, reduction of pay in the time scale and ensure, with the prior approval of the Board, in case of lapses on the part of permanent or temporary teachers and other employees of an Institution which do not warrant removal or dismissal of the persons concerned. In all such cases the committee shall observe the procedure laid down in sub rule (8) of rule 28 in the Management of Recognized Non-Government Institutions (Aided and Unaided) Rules, 1969."

Mr. Kallol Bose, learned advocate for the school authorities, submits that after the promulgation of the West Bengal Board of Secondary Education (Appointment, Confirmation, Conduct and Discipline of Teachers and Non- Teaching Staff) Rules, 2018 (hereafter 'the 2018 Rules'), the Board was the authority to continue with the disciplinary proceeding initiated against the petitioner and as there are charges of defalcation, and the school authorities retained their right to proceed against the petitioner although the state government had cleared the petitioner from the above charges.

This Court finds that the scope of the writ petition is limited to the disciplinary proceeding initiated upon the directions of the Commissioner of School Education, West Bengal and the charge-sheet which was issued pursuant thereto on 20th July, 2016. It was not at the behest of the school authorities that the disciplinary action had been taken against the petitioner. The school authorities were present when the special audit was conducted by the special audit team constituted by the government and nothing was found against the petitioner with regard to the misappropriation. Although, the school authorities made a representation in December, 2016 before the Commissioner against the report of the special audit team, no further follow up action was taken by the school authorities in this regard.

The contentions of the school authorities against the correctness of the report of the special audit team, clearly was not accepted by the Commissioner of School Education, West Bengal and it transpires from the letter dated 7th August, 2019 addressed by the Commissioner of School Education, West Bengal to the District Inspector of Schools (SE), Nadia that the Commissioner had instructed that there was no scope for continuing with the disciplinary proceeding.

On the last occasion, the Commissioner of School Education, West Bengal was directed to explain the stand of the State respondents pursuant to the report of the special audit team mentioned hereinabove.

Today Mr. Biswajit Dey, learned advocate for the State respondents has handed up a report affirmed by the Commissioner of School Education, West Bengal explaining the situation completely. Paragraph 4 of the said report is quoted below:

"4. That on receipt of instruction from School Education Department, a letter was issued to the District Inspector of Schools (S.E.), Nadia, requesting him to take steps against Sri Hiron Thomas Mondal, Headmaster of Nawpara Rupdaha High School for misappropriation of Govt. money. It was suggested in the said memo no. 1646-GA dated 07/12/2015 of the Directorate of School Education, West Bengal that

i) The Headmaster may be suspended and Departmental Proceeding may be started,

ii) One Teacher-in-Charge may be appointed,

iii) A special Audit Team may be engaged to investigate the charges of financial defalcation.

Reminder letters bearing memo no. 393-GA dated 17/03/2016 & memo no. 478-GA dated 06/04/2016 were issued from this end requesting the District Inspector of Schools (S.E.), Nadia, to enquire into the complaint lodged by the Additional District Magistrate, Nadia, against the Headmaster of Nawpara Rupdaha High Schools (HS) regarding misappropria-tion of fund.

In reference to memo no. 393-GA dated 17/03/2016 of the Directorate, the Deputy Director of Accounts (SE), Nadia, organized a team of 3 employees for Special Audit of the school to bring out the true facts regarding misappropriation of Government money in connection with the Nawpara Rupdaha High School. The team visited the school on 22/06/2016. After verifying the documents of the school, the team submitted its findings. As per findings as contained in memo no. 407/D/D/(N)/16 dated 25/11/2016 of the Deputy Director of Accounts, School Education Department, Nadia, no misappropriation of money has been found by the enquiry team. Therefore, there is no scope to proceed further for initiation Departmental Proceedings (DP) against Hiron Thomas Mondal. The District Inspector of Schools (SE), Nadia, is already requested to act accordingly in accordance with law vide this Directorate's memo no. 2018-GA dated 07/08/2019."

Admittedly, the school is a Government sponsored school and the 1972 Rules will apply. The entire disciplinary proceeding which is the subject matter of challenge in this writ petition was initiated at the recommendation and with the approval of the State of West Bengal. Finally, the Commissioner has affirmed an affidavit, inter alia, stating that a special audit team was organised by the Deputy Director of Accounts (SE), Nadia, in order to investigate into the allegations against the petitioner and it was found that there was no misappropriation of money and, as such, there was no scope to proceed further for initiation of the departmental proceedings.

Documents have been relied upon by the learned advocate for the State respondents to show that the suspension and initiation of the disciplinary proceeding were at the instance of and on the recommendation of the Commissioner of School Education, West Bengal dated 7th December, 2015. By a communication dated 17th March, 2016, the Commissioner, School Education, West Bengal had informed the District Inspector of Schools (SE), Nadia that a special audit would be conducted to bring out the facts regarding misappropriation of government money in the said school. Ultimately, the special audit team opined by a report that the charge of misappropriation of government money was not proved. The District Inspector of Schools (SE), Nadia was also informed by the Commissioner of School Education, West Bengal on 7th August, 2019 that there was no scope to proceed further with the departmental proceeding against the petitioner. Copy of the said letter is on record and the contents of the letter is quoted below:

"Memo No. 2018-GA Dated,   Kolkatta, the 07/08/2019 IC/647/LS/2017 & 4G-1125/81

From : Commissioner of School Education, West Bengal

To : The District Inspector of Schools (S.E.),Nadia, Haimanti Building, College Street, Krishnagar, District - Nadia, Pin - 741101.

Sub : Departmental Proceedings against Headmaster of Nawpara Rupdaha High School, Nadia for misappropriation of Govt. money.

Re : 1) This Directorate's memo no. 1646-GA dated 07-12-2015 & memo no. 393-GA dated 17-03-2016.

2) Memo No. 407/D/D/(N)/16 dated 25-11-2016 of Deputy Director of Accounts (S.E.), Nadia.

With reference to the above he is hereby informed that no misappropriation of money has been found by the enquiry team, headed by the Deputy Director of Accounts (SE), Nadia. Therefore, there is no scope to proceed further for initiation Departmental Proceedings (DP) against Hiron Thomas Mondal, suspended Head Master of Nawpara Rupdaha High School.

He is requested to act accordingly in accordance with law.

Sd/-

(Dr. Saumitra Mohan, IAS)

Commissioner of School Education,

West Bengal"

Under such circumstances, when the authority itself empowered under the rule to either approve or disapprove initiation of a disciplinary proceeding, had itself found that there was no further reason to proceed against the petitioner and had instructed the District Inspector of Schools concerned accordingly, this Court finds no reason as to why the prayers in the writ petition, should not be granted.

It is also on record that the suspension as also the disciplinary proceeding had taken place on the basis of the recommendation of the School Education Department and the Commissioner of School Education in accordance with the 1972 Rules. When the said authorities after holding a special audit, have come to the conclusion that there had been no misappropriation of government money and that there was no further reason to continue with the disciplinary proceeding against the petitioner, the disciplinary proceeding pending against the petitioner as also the order of suspension dated 30th April, 2016 are quashed and set aside.

The petitioner will be reinstated as the head master of the concerned school within 2 (two) weeks from date of communication of this order.

In the instant case, with regard to the payment of back wages, the petitioner will be governed by the 1972 Rules. On the basis of the decision passed by a Division Bench of this Court, reported in 2009 (2) CHN 399 in FMA No. 2717 of 2007, [Secretary of the Managing Committee of Rabindra Smriti (S) Bidya Niketan & ors. vs. Mahadeb Bhattacharya & ors.], the petitioner was in any event entitled to full salary during the period of suspension. Paragraph 9 of the said decision being relevant, is quoted hereinbelow:

"9. We are to read this judgment along with the later judgment in the case of Miss. A. Sundarambal (supra) where the Apex Court held that although the school was an industry a teacher could not come within the definition of workman and as such was not entitled to raise an industrial dispute within the meaning of section 10 of the said Act of 1947. In the instant case the concerned teacher was proceeded with departmentally and the Managing Committee suspended him in contemplation of such proceeding. Payment of subsistence allowance was to be guided by the appropriate service rules. Admittedly the concerned institute did not have any service rule. Hence, the Managing committee exercised their inherent power to suspend him to have smooth conduct of the disciplinary proceeding. The learned Judge, in our view, very rightly directed payment of full salary as subsistence allowance. The Special Rules discussed above as well as the Act of 1969 debarred the suspended employee benefit of obtaining full salary to the extent provided therein. In absence of such restrictive provisions it would be unjust to deny full salary to respondent No. 1. Mr. Bose contended that it would be an unjust enrichment on the part of the respondent No. 1 as he would be receiving full salary without rendering any service in exchange. Even it is true it cannot be avoided as the respondent No.1 could not be blamed for the same. The Managing Committee in their wisdom suspended him and debarred him from rendering any service during the pendency of the proceeding. So long the disciplinary proceeding was not culminated in a logical conclusion it could not be conclusively said that the respondent No. 1 was to be blamed for his alleged misconduct. Hence, it would be unjust to deny him his right to receive full salary."

As such, the entire arrear claim of the petitioner, towards full salary, that is, from the date of suspension to the date of reinstatement minus the amount paid as subsistence allowance, shall be paid to the petitioner in four equal monthly instalments. First of such instalment will be tendered with the salary of the first month payable to the petitioner after his reinstatement. The remaining three instalments will be paid by 31st October, 2019, 31st January, 2020 and 31st March, 2020. Fraction, if any, will be added to the last instalment. The school authorities will raise the bills accordingly for payment of the arrear amount and the District Inspection of Schools (SE) Nadia will act accordingly.

The contention of the school authorities that with the promulgation of the 2018 Rules, the school authorities derived power to approach the West Bengal Board of Secondary Education to initiate disciplinary proceeding against the petitioner, this Court does not require to answer that question as that is beyond the scope of the writ petition. This order is restricted only to the disciplinary proceeding and the order of suspension of the petitioner initiated on the basis the recommendation of the Commissioner School Education Department, Government of West Bengal under the 1972 Rules

Needless to mention that once the Commissioner of School Education has affirmed an affidavit before this Court stating, inter alia, stating that there was no reason for any disciplinary proceeding against the petitioner, the State respondents will ensure that the order of reinstatement is complied with on the terms stated hereinabove.

With the above observation, this writ petition is allowed. There shall be no order as to costs.

Urgent photostat certified copy of this order, if applied for, shall be supplied to the parties as expeditiously as possible.