Pulin Behari Giri vs State of West Bengal and Others

Dipankar Datta, J.—The petitioner was an Assistant Teacher of Chandanpiri M.M. High School, Police Station - Namkhana, District - South 24 Parganas (hereafter the school). The present petition was filed by him on 9.8.1999 alleging that he had not been allowed by the school authority to join upon reopening thereof after summer vacation with effect from 14.6.1999 and that he had not been paid salary since May, 1999.

The writ petition was moved on 30.11.1999. While directing exchange of affidavits and fixing the matter as "For Orders" on 13.1.2000, a learned Judge of this Court had directed the petitioner to join school and to receive salary. It was recorded that the school authority had no objection in relation thereto. Accordingly, the school authority was directed to pay salary of the petitioner as and when he joins service.

A contempt petition being CPAN No. 51 of 20000 was filed by the petitioner alleging that despite the order dated 30.11.1999, the school authority had not allowed him to join duty as Assistant Teacher. An order was passed on 24.6.2000 by the learned Judge directing the petitioner to attend school accompanied by the Officer-in-Charge, Namkhana Police Station. The said Officer-in-Charge was also directed to submit a report in respect of "allowing or not-allowing the teacher concerned in joining the School". Such order was passed by the Court despite recording of submission of the learned Counsel for the contemnors that the petitioner had not reported for duty and joined his service in the school and, therefore, there was no violation of the order passed in this respect. Be that as it may, the contempt application was directed to appear in the monthly list of May, 2000.

In compliance with the aforesaid order dated 24.6.2000, the petitioner being accompanied by the said Officer-in-Charge had been to the school on 6.5.2000 and he was allowed to join duty. It is not in dispute that since then the petitioner discharged his duty as Assistant Teacher of the school, received his salary for service rendered and during the pendency of this petition having attained the age of superannuation, has retired from service with effect from 1.2.2003.

The petitioner had initiated a further contempt proceeding on 22.1.2003 by filing CPAN No. 199 of 2003, alleging violation of the order dated 30.11.1999. According to him, the contemnors by not releasing arrear of salaries had committed contempt. It appears from the records that by an order dated 24.3.2005, the contempt petition has been disposed of recording that in contempt proceeding no direction for payment of arrear salaries could be issued inasmuch as in the order dated 30.11.1999 there was no express direction of the Court in this behalf. Further it appears therefrom that salary for the subsequent period has been paid and Provident Fund dues of the petitioner have also been cleared and the dispute with regard to arrears could be decided while hearing the writ petition.

The questions that survive for determination in this petition are (i) whether the petitioner was prevented from serving as Assistant Teacher in the school from 14.6.1999 to 5.5.2000 or not and (ii) whether he is entitled to arrears of salary. 7. Although the petitioner is emphatic in his assertion that the school authority had not allowed him to join duty upon reopening of school after summer vacation with effect from 14.6.1999, the school authority in its affidavit- in-opposition has been consistent in its stand that the petitioner never reported for duty and, therefore, there was no question of he being prevented by any of the members of the Managing Committee of the school.

Mr. Das, learned Counsel appearing for the petitioner, however, submitted that unless the school authority had prevented the petitioner from attending his duty there was no question of moving the Writ Court for redress. According to him, teachers like the petitioner cannot afford the luxury of spending money in initiating unnecessary litigation. The fact that the learned Judge by order dated 26.4.2000 had directed the said Officer-in-Charge to accompany the petitioner to the school is sufficient proof of the Court being satisfied with the petitioner''s version. He, accordingly, prayed for necessary direction on the school authority to regularize the period of absence of the petitioner as spent on duty and to release arrears of salary due and payable to him.

Mr. Thakur, learned Counsel appearing for the school authority opposed the petition. He vehemently disputed the version of the petitioner that the school authority had been instrumental in not permitting him to discharge his duty. Attention of the Court was invited to the averments contained in the affidavit in opposition to the effect that the petitioner had himself not reported for duty. In particular, Mr. Thakur referred to paragraph 8 of the petition wherein the petitioner had averred that he had been to the school on 15.6.1999 to join duty when he was refused joining by the Headmaster. According to him, such statement is absolutely incorrect when considered in the light of letter dated 18.6.1999 written by the petitioner to the Headmaster (Annexure X to the affidavit-in-opposition). The letter reads thus:

To

The Headmaster,

Chandanpiri Murari Mohan High School,

P.O. Chandanpiri, Dist. 24 Pts (S)

Sir,

I beg most respectfully to state that I have been suffering from illness since 14.06.99 and is still unable to attend your school till to-day.

I, therefore, pray to your honour to kindly grant my application and shall produce the medical certificate at the time for the purpose concerned.

It is also noted that I must attend your school after curing the disease and thus oblige me thereby.

Dated 18/6/99

Sd/-

Pulin Behari Giri

He contended that on his own showing the petitioner was ill since 14.6.1999 and unable to attend school till 18.6.1999 when the letter was written. Thus statement of the petitioner that he reported for duty on 15.6.1999 is absolutely false.

He also referred to another letter dated 25.6.1999 written by the petitioner (at page 10 of the affidavit-in-opposition). While referring to his presence in the school on 25.6.1999 despite ill-health, he had mentioned that he had learnt that the Managing Committee of the School would not allow him to join on the ground that some petitions have been received from the local club and certain guardians opposing his joining. However, it is clear from the said letter that the petitioner had prayed for a month''s medical leave citing his illness as a ground therefore. He further contended on the basis thereof that the petitioner himself having prayed for leave till the latter part of July, 1999 has concocted the story in the petition to the effect that the school authority had prevented him from joining duty. As a matter of fact, he continued, the petitioner had been involved in a criminal case relating to murder for which he was detained in custody for more than 48 hours and since his release on bail, the local people were against his joining in the school as Assistant Teacher being of the impression that their wards would not receive good education from him. It may, however, be noted that there is no statement in the affidavit-in-opposition of the school authority in this respect.

This Court has heard learned Counsel for the parties. Having regard to the rival versions, it is plain that the petition raises disputed questions of fact which cannot be effectively investigated here on the basis of affidavit evidence. The petitioner''s assertion that the school authority had prevented him from joining has been disputed and as such it would not be prudent on the part of this Court to examine the issue having particular regard to the letters dated 18.6.1999 and 25.6.1999 written by the petitioner (referred to above) which are sufficient proof to repel his contention that he had been to school immediately after reopening thereof on 14.6.1999. Once the case made out by the petitioner is found not true from the materials placed on record by the school authority, it would not be proper in the circumstances to grant him relief. It is well settled that writ remedy is discretionary and it is exercised only when the Court is satisfied that it is equitable to do so. The conduct of the petitioner does not inspire the confidence of the Court to embark on an inquisitorial investigation to ascertain the veracity of the claim made by him in a case of the present nature.

The contention raised by Mr. Das that unless the Court was satisfied with the petitioner''s claim the order dated 26.4.2000 would not have been passed, has failed to impress. As has been noted earlier, on 30.11.1999 submission of learned counsel for the school authority that they would have no objection to allow the petitioner to join duty was recorded. Even in the order dated 26.4.2000, submission of learned Counsel for the contemnors to the effect there has been no violation of the order of Court since the petitioner did not report for duty has been recorded. Although there were conflicting stands of the parties, the learned Judge did not decide as to whether in fact there was a violation of the Court''s order. For the purpose of ensuring compliance of the order, the learned Judge directed th1e petitioner to attend the school accompanied by the said Officer-in- Charge. It is doubtful as to whether such an order could have been passed having regard to the rival claims and without a decision that the order had, in fact, been violated. The petitioner cannot, therefore, derive any assistance on the basis of the order dated 26.4.2000.

Since this Court is not in a position to conclusively hold that the petitioner was restrained by the school authority from attending duties with effect from 14.6.1999, no direction can be issued for regularization of his absence from 14.6.1999 to 5.5.2000 as spent on duty. This Court, however, for ends of justice would direct the school authority to treat the said period of absence as spent on extraordinary leave without pay. Necessary endorsement shall be made in the service book of the petitioner accordingly. The pension papers shall be completed by the school authority in all respects within a period of one month from date and forwarded to the concerned District Inspector of Schools (S.E.) who shall thereafter take appropriate action thereon to ensure that the petitioner receives his retiral benefits without any delay. The petitioner, however, shall cooperate with the authorities.

So far as non-payment of salary for May, 1999 and 13 (thirteen) days in June, 1999 is concerned, no justification has been provided by the school authority The Court has perused the Attendance Register for the relevant period. It is found that the petitioner duly attended school in May, 1999. From the last day in May till 13.6.1999, the School was closed for summer vacation. He shall therefore be entitled to salary for the period 1.5.1999 to 13.6.1999. Payment shall be released with interest @ 10% p.a. calculated from the date the salary was due till date of actual payment.

The writ petition stands disposed of with the aforesaid directions. There shall be no order as to costs.

Urgent photostat certified copy of this judgment and order shall be furnished to the applicant as early as possible but positively within four days from putting in requisites therefore.