R.N. Bhowmik, Dr. vs University of Calcutta

Paritosh K. Mukherjee, J.—This writ petition was moved on behalf of R.N. Bhowmik, Principal, Sovarani Memorial College, Jagatballavpur, District Howrah, challenging, inter alia, the order of suspension and the charge-sheet dated July 28, 1985, and the connected disciplinary proceedings and on August 9, 1985, whereupon U.C. Banerjee J. of this Court passed directions for affidavits, in presence of the Respondents and had given liberty to the Respondents to pass final order, but the Governing Body was directed not to communicate the final order, without the leave of the Court.

The order of suspension was, however, directed to continue in the mean time.

Subsequently, on, June 23, 1987, the earlier order was modified to the extent that the Respondent authorities were given liberty to pass final order and to communicate the same to the writ Petitioner, but no further effect was to be given, without the leave of the Court. Leave was further granted to the Petitioner to file a supplementary affidavit, incorporating subsequent facts and other facts, which the Petitioner might deem fit to bring to the notice of the Court. The Respondent authorities were directed to communicate the final order, though not to be given effect to, within a period of two weeks from the date. The affi-davit-in-opposition which was filed on behalf of the Respondents, the same was directed to be kept on record.

On December 19, 1988, D.K. Basu J. allowed the application for addition of party and the Petitioner was given liberty to amend the cause title of the writ petition and to serve a copy of the writ petition upon all the Respondents within two weeks of the X-mas vacation. The report submitted by the Enquiring Officer was directed to be kept on record.

Ultimately, the writ petition was assigned by Hon''ble P.D. Desai C.J. by His lordship''s order dated March 23, 1990, and has come up for hearing before me, on April 4, 1990, when the writ petition was heard-in-part by this Court, and on March 4, 1991, the hearing was completed and parties have been given liberty to file written arguments and judgment was reserved.

The facts of the case as it appeared from the amended writ petition is as follows:

The writ Petitioner was appointed as Principal of the Sova Rani Memorial College by the Governing Body of the said College on January 10, 1975. The said appointment of the writ Petitioner was approved by the University and an intimation to that effect was issued on June 6, 1975. The approval for the purpose of fixation was given by the Government with effect from January 10, 1975. The writ Petitioner was confirmed in the said post of Principal with effect from February 24, 1976.

6A. It is the case of the writ Petitioner that neither the Government nor the University has ever withdrawn the approvals given by them in respect of the appointment of the writ Petitioner in the post of Principal of the said College.

According to the Petitioner, on June 28, 1985, a notice for requistion, meeting to be held on July 14, 1985, was called, inter alia, for consideration of seven agendas, including ''to consider'' the matter of taking action against the Principal in accordance with law, as directed by the Division Bench of the Hon''ble High Court by order dated December 11, 1984, passed in F.M.A.T. No. 2915 of 1984.

Further it is the case of the Petitioner that earlier on February 10, 1985, the Governing Body of the College at the instance of Mr. H.K. Saha Roy adopted a resolution authorising Professor Hemanta Mukherjee to draw article of charges, statements of imputation in support of the charges for the purpose of taking action against the Petitioner, but it appears that actually the purported charge-sheet was issued by Shri H.K. Saha Roy, the then President of the Governing Body of the College himself, without any resolution of the Governing Body. Thus, according to the Petitioner, the charge-sheet dated July 28, 1985, issued by Sri H.K. Saha Roy, the then President of the Governing Body of the College, was wholly without jurisdiction and is liable to be set aside.

Further, according to the Petitioner, the Governing Body of the College by the purported resolution dated August 16, 1987, purportedly resolved, inter alia, that such conduct on the part of Dr. Bhowmik is neither ethical nor normal nor befitting to any person engaged in any educational institution apart from the facts that he has been persistently engaged in activities prejudicial to the academic or financial interest of the College and habitual deriliction of dusties.

According to the Petitioner, under the proviso to provisions of Section 9(2) of the West Bengal College Teachers (Security of Services) Act 1975, no penalty u/s 8, Clauses VI and VII could be imposed in respect of ''a confirmed teacher'', except on ground of being "persistently engaged in activities prejudicial to the academic or financial interest of the College of habitual derelication of duties" or physical conformation to interfere with normal discharge of his duties or mental drainagement or moral terpetitute. Further, according to the Petitioner, no specific charge could be framed on the basis of such vague allegations.

According to the Petitioner, the Article of charges mentioned in the charge-sheet has not been considered by the disciplinary authority in passing the final order, and the impugned order has been passed in total non-application of mind, and in violation of the provisions of Sub-rule (8) of Rule 7 of West Bengal College Teachers (Security of Service) Rules, 1977, and as such, the purported order of removal of the Petitioner from the post of Principal is disproportionate to the charges and, as such, the same is liable to be quashed.

Mr. Biswaranjan Ghoshal, learned Advocate appearing for the Petitioner at the final hearing of the writ petition, having placed the charge-sheet submitted that the expression contained in the charge-sheet that persistently engaged in activities prejudicial to the academic or financial interest of the College and habitual dereliction of duties should not be considered in isolated manner as it has been observed by the Supreme Court in the case Vijay Narain Singh Vs. State of Bihar and Others, which is as follows:

The expression ''habitually'' means repeatedly or ''persistently''. It implies a thread of continuity stinging together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. It connotes frequent commission of acts or commission of the same kind.

According to Mr. Ghoshal, Rule 7 of the West Bengal College Teachers (Security of Service) Rules, 1977 (hereinafter referred to as the Rules) enjoins that no order imposing any of the peanalties specified in Sub-section (1) of Section 9 of the said Act shall be passed except after an enquiry is held in the manner as provided in the said Rules. Sub-rule (1) of Rule 7 of the said Rules, inter alia, provides that there shall be a disciplinary authority, who shall draw up or caused to be drawn up against a delinquent teacher a charge-sheet, in the prescribed form.

It is, therefore, relevant that the Governing Body of the College itself is the disciplinary authority and the said disciplinary authority may appoint a delegate to draw up the charge-sheet, and once it is so delegated to a particular person, none but the said delegate can draw up the charge-sheet, whoever he may be. It was further submitted that drawing up of the charge-sheet may be done by a delegate, but the same has to be considered and approved by the disciplinary authority, viz. the Governing Body of the College before it is served upon the delinquent.

According to Mr. Ghoshal, Sub-rule (8) of Rule 7 of the said Rules enjoins that the disciplinary authority shall consider report of enquiry and other relevant papers and records to its findings on each charge.

Mr. Ghoshal further submitted that the principles of natural justice and fair play has not at all been observed in the facts of the present case, which would be evident from the following facts:

(a) the programme of enquiry itself shows that no date was fixed for examination of defence witnesses.

(b) the enquiry officer held enquiry at his residence at 28, Rastraguru Avenue, Calcutta-28, ''during night'' which is a far away place from the residence of the delinquent at Naihati.

(c) during the enquiry, the Petitioner, who was above 50 years, had been having indifferent health, was asked to appear and the Petitioner drew the attention of the enquiry officer to the fact that he had indifferent health although and that he has been advised not to undertake the stress of hazardous journey from Naihati to Nager Bazar, Dum Dum, and the writ Petitioner suggested alternative time and venue of enquiry, but the Enquiry Officer refused to accept the said prayer.

It appears that by his letter dated January 1, 1986, the writ Petitioner requested the Enquiry Officer to change the venue of the place of enquiry from Nager Bazar, Dum Dum and not to hold any enquiry in the night, as it was impossible on the part of the Petitioner to attend the enquiry in the night at Dum Dum with material witnesses from Naihati and Howrah, and in spite of the receipt of the said letter dated January 10, 1986, the Enquiry Officer held enquiry at his own residence ex parte during night and, as such, he has gone beyond his jurisdiction, and deciding on the validity and authority of the appointment of the Petitioner, as Principal of the College, which has been approved by the University of Calcutta and the Government of West Bengal.

On the point of bias of the Enquiry Officer, Mr. Ghoshal has strongly placed reliance on the decision of the Hon''ble Supreme Court in the case of Manak Lal Vs. Dr. Prem Chand, wherein Supreme Court observed as follows:

The principle ''nemo debet esse judex in causa propria sua'', precludes a justice, who is interested in the subject-matter of a dispute, from acting as a justice therein. This principle applies not only to justices but to all Tribunals and bodies which are given jurisdiction to determine judicially the rights of parties.

If it is true that in judicial or quasi-judicial proceedings justice must not only be done but must appear to be done to the litigating public.

In elaborating the violation of principles of natural justice, Mr. Ghoshal submitted that the Petitioner raised objection to the venue and time all along, but the Enquiry Officer did not take any cognizance of the same. The principles of natural justice and fair play has been given a go-bye as the principles of natural justice and fair play demand that every effort should be made to see that a charged officer may not be put to any inconvenience in participating the enquiry proceeding ; and holding enquiry at the residence of the Enquiry Officer situated at a far away place after the dusk and that too without the consent of the Petitioner and that amount to total denial of natural justice and fair play.

In this context, Mr. Ghoshal has also placed reliance, on the decision of the Supreme Court, in the case of Central Bank of India Ltd. Vs. Karunamoy Banerjee, which is as follows:

The rules of natural justice will have to be observed in the conduct of a domestic enquiry against a workman. If the allegations are denied by the workman, the burden of proving the truth of those allegations will be on the management, and the witnesses called by the management must be allowed to be cross-examined by the workman, and the latter must also be given an opportunity to examine himself and adduce any other evidence that he might choose, in support of his plea. But, if the workman admits his guilt, to insist upon the management to let in evidence about the allegations will only be an empty formality. In such a case, it will be open to the management to examine the workman himself, even in the first instance, so as to enable him to offer any explanation for his conduct, or to place before the management any circumstances which will go to mitigate the gravity of the offence. But, even then, the examination of the workman, under such circumstances, should not savour of an inquisition. If, after the examination of the workman, the management chooses to examine any witnesses, the workman must be given a reasonable opportuanity to cross-examine those witnesses and also to adduce any other evidence that he may choose.

In this regard Mr. Ghoshal has placed strong reliance on the decision of the Hon''ble Supreme Court in the case of Management of M.S. Nally Bharat Engineering Co. Ltd. Vs. State of Bihar and Others, which is set out hereinbelow:

In Swadeshi Cotton Mills v. Union of India, Sarka-ria J. speaking for himself and Desai J. said that irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial, a duty to act fairly, that is, in consonance with the fundamental principles 6f substantive justice is generally implied. The presumption is that in a democratic polity wedded to the rule of law, the State or the Legislature does not intend that in the exercise of their statutory powers its functionaries should act Chinnappa Reddy J. added (at p. 212) that the principles of natural justice are now considered so fundamental as to be implicit in the concept of ordinary liberty. They are, therefore, implicit in every decisionmaking function, call it judicial, quasi-judicial or administrative. The learned Judge went on to state that where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice. The implication of natural justice being presumptive, it should be followed by the authorities unless it is excluded by express words of statute or by necessary implication.

Mr. Ghoshal, learned Advocate appearing for the writ Petitioner, has placed further reliance on the observation of Hon''ble the Supreme Court in the case of Sur Enamel and Stamping Works (P) Ltd. Vs. Their Workmen, wherein the Supreme Court having had directed that the witnesses are to be examined in presence of the employees and that employees should be given a fair opportunity to cross-examine and a fair opportunity to examine witnesses.

According to the writ Petitioner, this very fairness has'' been refused to the writ Petitioner and the Enquiry Officer having not changed the venue and time, in fact, given a go-bye to the principles of natural justice.

It is further submitted that the Petitioner alternatively prayed that the enquiry might be held at the residence of Sri A.C. Banerjee, former Inspector of College at Manicktala Housing, but the Enquiry Officer has turned down the said prayer and instead of holding the enquiry at the residence of Sri A.C. Banerjee continued the enquiry at his own residence in the evening ex parte.

Mr. Ghoshal, appearing for the Petitioner, also challenged the resolution of the Governing Body of the said College dated August 2, 1987, which contained the provisional order of removal and acceptance of the report of the Enquiry Officer.

The said resolution, according to the Petitioner, suffers from the following infirmities:

(a) If one goes in between the lines, it could nowhere be found that the Governing Body has come to any findings to the effect, that the writ Petitioner was found to be guilty of being persistently engaged in activities prejudicial to the academic or financial interest of the College or habitual dereliction of duty.

(b) On perusal of the said resolution, it would also appear that the members of the Governing Body themselves have not considered the materials on record, particularly they have not at all considered the defence of the delinquent, they have not considered the reasons given by the writ Petitioners, explaining his difficulties in attending the residence of the Enquiry Officer in the night with his advanced age and indifferent health all the way from Naihati to Nager Bazar, Dum Dum, the members of the Governing Body have not come to their independent finding in respect of any of the charges ; they have simply recorded (hat the Petitioner has been found guilty by the Fng(sic)iry Officer in aspect of charges brought against (sic) and that the said charges are grave in nature.

(c) The non-application of mind on the part of the members of the Governing Body would also appear on the very face of the record, inasmuch as, it is recorded in the said resolution that Sub-rule (8) of Rule 7 of the Rules requires that the disciplinary authority should have considered the report of the Enquiry Officer and other relevant papers and records.

The fact remains that Sub-rule (8) of the said Rule contains the provisions of some duties of the disciplinary authority and, so far as the procedure of the disciplinary proceedings are concerned, those are contained in Rule 7 and the requirement of the consideration of charges by the disciplinary authority is contained in Sub-rule (8) of Rule 7 and not in Rule 8, as considered by the disciplinary authority. This also shows non-application of mind.

27A. In the last sentence of para. 1 at p. 3 of the said resolution, it appears that the Governing Body has illegally considered some conduct allegedly indulged in by the writ Petitioner in his formal place of employment, namely, Nandalal Ghosh, B.T. College, Naihati, this is a totally irrelevant and extraneous matter.

27B. Accordingly, the Governing Body resolved and proposed Dr. Rabindra Nath Bhowmik, be removed from the services of Principal provided under clause VI of Section 9 Sub-section (1) of the West Bengal College Teachers (Security of Service) Act for preservation maintenance and protection of interest of a good education administration and development of the said Sova Rani Memorial College in public interest.

Assailing the charges contained in the charge-sheet, Mr. Ghoshal submitted that the writ Petitioner has not been called upon to answer any ''specific charge'' on the score that he was "persistently engaged in activities prejudicial to the academic or financial interest of the College or habitual dereliction of duty".

According to him, the charges were vague and indefinite in nature and the said charge-sheet was passed with ''closed mind'' and tained with bias and, as such, no punishment should inflicted upon the Petitioner on the basis of the aforesaid charges.

In support of this branch of submission he has placed strong reliance on the following reported decisions of this Court: In the case of Sunil Kumar Mukherjee v. State of West Bengal 1977 C.H.N. 1014 judgment delivered by P.K. Banerjee and G.N. Ray JJ. (as Their lordships then were) it has been observed, as follows:

The Appellant, an Inspector (Technical) of the Motor Vehicles Department at the relevant time, was charge -sheeted for having assets during 1965 and 1966 disproportionate to his known source of income. During the enquiry, he applied for legal assistance and for a copy of the report of the Investigating Officer, but the same were refused. The Appellant made an application challenging the departmental proceeding initiated by the charge-sheet as also the order of suspension. The learned trial Judge discharged the Rule. In the appeal from the said order it was inter alia contended that there was violation of the principle of natural justice.

In view of the wordings of the charge, it is clear that the officer concerned had a closed mind even at the stage of framing of the charge. The charge-sheet shows that the delinquent officer was found to be in possession of specific amount found by the detailed calculation which is a part of the charge during the period 1966 and 1967.

In the case of Meena Janah v. Deputy Director of Tourism 1974 (2) S.L.R. 466 delivered by S.C. Ghose J. it has been observed as follows:

The charge-sheet dated December 24, 1970, clearly shows that the disciplinary authority had already come to the conclusion that the duties of Hostess which the Petitioner was bound to carry out were not carried out by the Petitioner and asked the Petitioner to explain why she would not be discharged from service. Even if technical or legalistic view be not taken, the said notice cannot be construed to be a notice to show cause against a charge alleged to have been committed by the Petitioner.

The said charge-sheet in the context of the above mentioned statements shows the pre-judging of the only issue by the punishing authority. The proposal of the penalty to be inflicted upon the Petitioner in the charge-sheet itself violates and contravenes in my opinion Clause (2) of Article 311 of the Constitution which lays down that the proposal for inflicting a penalty has to be made after holding the enquiry into the alleged offence or charge that a delinquent employee might be guilty of and after a finding in such enquiry that the employee is guilty of having committed the offence. Here the penalty is proposed to be inflicted in the very first charge-slieet itself even prior to any enquiry and thus is violative of the provisions of Clause (2) of Article 311 of the Constitution.

Mr. Ghoshal has also placed reliance on the case of State of West Bengal v. Sati Prosad Roy 79 C.W.N. 38 the Division Bench consisting of S.K. Dutta and B.C. Roy JJ. ( as Their lordships then were) observed, as follows:

On various expressions in the charge-sheet about the guilt of the Petitioner with the proposal for the dismissal of the Petitioner and the final order of dismissal, the apprehension of the Petitioner that his case was prejudiced and prejudged was reasonable, and further in view of such expression the enquiry officer being an officer subordinate was likely to be prejudiced leading to the defection of justice.

The enquiry officer''s recommendation of dismissal from service was also no part of the duties enjoined under the rules on the enquiry officer.

In order to understand this branch of argument it is necessary for me to set out the statement of articles of charges framed against the writ Petitioner, which is set out as follows:

Article I

That the said Shri Rabindranath Bhowmik while functioning as Principal of the said Sovarani Memorial College during the period from January 1975 to July 28, 1985, deliberately and wilfully suppressed material facts and made misstatements as to his experience in Colleges prior to joining the said Sovarani Memorial College with a view to securing job as Principal on substantive basis in the said College and deriving financial benefits as such.

Article II

That during the aforesaid period and while functioning in the aforesaid office the said Shri R.N. Bhowmik deliberately and wilfully suppressed material facts and submitted misstatements of facts with a view to consolidating his service as Principal in the said Sovarani Memorial College and deriving material benefits thereby from the said College and from the State Government during the tenure of his service in the College and afterwards.

Article III

That during the aforesaid period and while functioning in the said office, the said Shri R.N. Bhowmik deliberately and wilfully submitted fake and invalid papers in the form of document suppressing the facts for being used by the authorities concerned of the said Sovarani Memorial College and of the State Government for the purpose of deriving as evidence as to his experience of Principal in other College and for getting sanction of the State Government through the Director of Public Instruction, West Bengal, for deriving recognition of his service in the said Sovarani Memorial College and elsewhere.

Article IV

That during the aforesaid period and while functioning in the aforesaid office, the said Shri R. N. Bhowmik deliberately and wilfully interpolated into the proceedings of the meeting of the Governing Body of the said College held on February 25, 1984, with a view to manufacture evidence for being used by him.

Article V

That during the aforesaid period and while functioning in the office the said Shri R. N. Bhowmik deliberately and wilfully disobeyed and/or flouted the directions of the Governing Body from time to time and conducted the affairs of the College his own interests superseding the rights and the rights and duties of the Governing Body.

Article VI

That during the aforesaid period and while functioning in the office the said Shri R.N. Bhowmik deliberately and wilfully removed and/or destroyed office records including the office copy of papers signed by the President and papers and/or documents connected to his appointment, approval of service and fixation of pay as Principal of the said Sovarani Memorial College in the aforesaid period and relating to alleged appointment and service in other colleges with a view to removing and/or destroying evidence that would otherwise go against him.

Article VII

That during the aforesaid period and while functioning as such in the office the said Shri R.N. Bhowmik deliberately and wilfully carried out financial transactions without any authority and/or jurisdiction and mishandled and/or misused funds of the College and/or funds granted by various authorities of the Governing connections with the welfare and/or development of the College and its students.

Article VIII

That during the aforesaid period and while functioning in the office the said Shri R.N. Bhowmik deliberately and wilfully showed gross negligence in exercising the functions of the Principal and has failed continuously to exercise during the function of Principal with necessary efficiency causing thereby serious injury to the development of education and causing thereby serious loss and injury to a lot of students.

Article IX

That during the aforesaid period and while functioning in the office the said Shri R.N. Bhowmik deliberately and wilfully misbehaved with and impaired the dignity of several members of the Governing Body including the President and misbehaved" with many members of the staff conduct of the day to day affairs of the College.

Mr. Ghoshal further submitted that the Enquiry Officer not only completed the enquiry in violation of the principles of natural justice and fair play, but had taken into account some extraneous fact which did not form part of the charges, relating to the functioning of the Petitioner during the tenure of the Petitioner as Principal of Nandalal Ghosh B.T. College at Naihati since June 1, 1973, to August 4, 1974.

It appears that the Enquiry, Officer made the following comments in the report dated April 10, 1987, which is set out hereinbelow:

Shri R.N. Bhowmik, Ex-Principal, should also explain why there were such irregularity. Otherwise he will be liable to be convicted on a charge of defalcation of cash.

Further, according to the said Enquiry Officer, Dr. Bhowmik was never clean in handling in expenditure of cash and funds and never is clean in his statement of transaction of cash.

According to Mr. Ghoshal, from the extract of the Audit Report in respect of Nandalal Ghosh B.T. College which forms part of the statement of imputation also against the writ Petitioner ; it transpires from the said extract that the audit raised objection against securing the services of Dr. Srijib Nayatirtha M.A., D. Litt., to Nandalal Ghosh B.T. College at monthly honorarium of Rs. 250. The contract reveals that audit raised objection because Dr. Nayatirtha had no B.T. Degree.

Mr. Ghoshal further submitted that it was strange that the administration of Nandalal Ghosh B.T. College did not think necessary to take steps against the Petitioner for engagement of Dr. Nayatirtha, obviously for the reasons that it is the matter of pride for a college in providing a scope to their students to hear a distinguished educationist in the person like Dr. Srijib Nayatirtha. It is immaterial whether Dr. Nayatirtha possess a B.T. Degree or not.

As according to Mr. Ghoshal, Rabindranath Tagore used to take classes in the University of Calcutta, Poet Mohit Lal Majumdar was associated with the University of Dacca though he was simply a graduate.

38A. It has been further submitted on behalf of the Petitioner that from the aforesaid charge-sheet and the statement of allegation it will appear that the Petitioner had already been found guilty in respect of all the charges, without any particulars.

Mr. Ghoshal furlther submitted that since the Governing Body which itself is the disciplinary authority in terms of Rule 7(l) of the said Rules authorised Professor Hemanta Mukherjee to draw up article of charges, statements of imputation in support of the said charges for the purpose of taking action against the Principal.

39A. It has been further submitted that Dr. H.K. Saha Roy issued the charge-sheet, but he was not competent to issue the same and it has been done in an unauthorised manner.

Mr. Phalguni Sarkar appearing with Mr. R. Ghoshal for the College authorities submitted that the earlier Governing Body of the said College issued the notice in good faith, for having the views of the Principal on the allegations for consideration of the same. The Petitioner moved the writ petition on or about August 27, 1984, challenging the charge-sheet and the order of suspension.

It was further submitted on behalf of the College authorities that the litigating character of the Petitioner has been revealed from pp. 13 to 15 of the report of the Enquiry Officer. Against the said Civil Order, an appeal being No. F.M.A.T. No. 2915 was preferred by the College authorities and the Division Bench was pleased to dispose of the said appeal by directing the Petitioner to answer the show-cause notice and directing the Governing Body to take action against the Petitioner in accordance with law.

It has been submitted on behalf of the College authorities that the terms and conditions of service of teachers including the Principal of a college have been laid down under Chap. VIII of the University Statutes, under which provisions for disciplinary action has been provided under Statute 113, which runs as follows:

Disciplinary Action 113. Teachers of a college shall be subject to such ''Disciplinary Rules'' as may be prescribed by separate Statutes for the purpose.''

According to the College authorities, Statute 97(1) provides an inherent and general power of a Governing Body for carrying its statutory responsibility for proper management of the affairs of the College, a duty in public interest of education in a college. The Governing Body is to follow all the said provisions of law, including the Disciplinary Rules framed under the College Teachers (Security of Service) Act, while proceeding on a disciplinary action against any teacher including the Principal of a college.

On the point of issuance of show-cause notice it was submitted that the Governing Body duly considered the reply and found it not satisfactory and decided to frame articles of charges against the Petitioner following the procedures laid down in the said College Teachers (Security of Service) Act and the Disciplinary Rules.

According to the College authorities, the then President being Respondent No. 7 directed the Principal (being the writ Petitioner herein) under Statute 98(4) to convene a meeting of the Governing Body on April 20, 1985, but the Principal did not comply with the same. The President sent another direction under Statute 98(4) to convene the meeting, which was not complied with.

In the circumstances, eleven out of fifteen members requisitioned a meeting of the Governing Body on July 7, 1985. The requisitioned meeting was held on July 14, 1985. and was adjourned till July 28, 1985, and the adjourned meeting concluded on July 28, 1985. The Governing Bed, in the said requisitioned meeting duly drew up articles of charges and the statement of imputation related to the said charges and contemplated an enquiry against the Principal under Sub-section (2) of Section 9 of the said Act and appointed Mr. Parimal Dasgupta, a learned Advocate of this Court, as the enquiring authority, in accordance with law and the rules following the principles of justice. The Enquiry Officer submitted a report and recommended punishment.

During the pendency of the enquiry, the writ petition was moved before this Court on August 9, 1985, (as stated aforesaid) when, U.C. Banerjee J. passed directions for affidavit and had given liberty to the Enquiry Officer to pass final order, but the Governing Body was directed not to communicate the same, without leave of the Court.

According to the learned Advocate appearing for the College authorities, the enquiry was conducted fairly and impartially and the enquiry report was considered by the Disciplinary Authority before taking appropriate decision of removal of the writ Petitioner from service.

According to him, the Disciplinary Authority duly considered the fact of non-submission of any representation of the Petitioner, as asked for, in the said notice and duly determined that the said proposed penalty should he imposed on the Petitioner and passed the appropriate final order by its resolution dated August 16, 1987, in terms of Sub-section (2) of Section 9 of the Act. The Governing Body duly communicated the order of punishment as provided under Rule 8 of the said Disciplinary Rules and as per orders of this Court.

In this context, it has been submitted on behalf of the Respondent that if the writ Petitioner had any grievance he could have challenge the same before the University by way of appeal u/s 12 of the said Act, and the writ petition is not maintainable at the stage of the proceeding.

Therefore, it has become necessary for this Court to determine whether the writ petition is maintainable during the pendency of the enquiry proceedings.

From the facts of this writ proceeding, it appears that the writ petition was moved after issuance of the charge-sheet dated July 28, 1985, and U.C. Banerjee J. of this Court did not grant any stay of further proceedings, but allowed the Disciplinary Authority to continue the proceeding but not to communicate the final order, without the leave of the Court, and against that decision refusing to grant any interim order, no appeal has been preferred by the writ Petitioner before the Division Bench of this Court.

According subsequent events that had taken place, viz., conclusion of the enquiry proceedings, submission of the enquiry report, passing of the provisional order and the final order, everything had happened during the pendency of the writ petition and for which D.K. Basu J. of this Court had granted leave to place all subsequent events by order dated December 19, 1990, by way of amendment of the writ petition.

this Court also (after the case was assigned to this Court) had given liberty to the writ Petitioner to place subsequent events by way of comprehensive amendment in order to avoid multiplicity of proceedings, and after the amendment and completion of affidavits the writ petition has come up for final hearing.

I have gone through the charge-sheet and the statement of allegations quoted hereinabove and I am of the opinion that the aforesaid charge-sheet and the statement of allegations were vague in nature and have been issued only to punish the writ Petitioner.

Further, in my view the said charge-sheet was issued with ''closed mind'' and the Single Bench decision referred to in the case of Meena Janah v. Deputy Director of Tourism 1974 (2) S.L.R. 466 (Supra) is applicable with full force in the facts of the present case.

Had it been the fact that this Court granted interim order staying all further proceedings, the enquiry proceedings could not have been allowed to continue by this Court and the writ Petitioner was entitled to succeed at the stage of charge-sheet.

In this context, the writ Petitioner in my view is entitled to get the benefits of the observations made by the Division Bench consisting of S.K. Datta and B.C. Ray JJ. (as Their lordships then were) in the case of State of West Bengal v. Sati Prosad Roy 79 C.W.N. 38 (Supra).

The enquiry proceeding conducted by Mr. Parimal Dasgupta, an Advocate of this Court, at his residence at Dum Dum in the evening and, in my view, should not have been allowed to be continued at Dum Dum which is far away from the writ Petitioner''s place of residence at Naihati and also far away from the College premises.

Although, in my view, no charge could be sustained on the basis of the aforesaid statement of allegations, as the wording of the charge-sheet and the statement of allegations were vague, indefinite and not connected with the Petitioner''s activities, as Principal of the Sova Rani Memorial College, but relating to another college, viz., Nandalal Ghosh B.T. College, yet, since the writ Petitioner had repeatedly asked for change of the venue and time of the enquiry, it would have been just and proper for the Enquiry Officer to shift the venue and accede to the prayer of the writ Petitioner by fixing the place of enquiry at the place of residence of Mr. A.C. Banerjee, the former Inspector of Colleges, which has not been done in the facts of the present case ; accordingly the principle of natural justice has been violated.

Further, in the facts of the present case, the Petitioner, who is a heart patient and above 50 years of age had been placed in an handicapped position and could not defend himself properly at the enquiry.

On the basis of the aforesaid background, this Court is of the view that by reason of not changing the venue and time of enquiry the Petitioner was really handicapped in defending himself and, as such, he could not appear and the enquiry was concluded ex parte behind the back of the Petitioner and the principles of natural justice have been violated as such enquiry should not be allowed to stand by the judicial scrutiny.

In my view, although the Petitioner had alternative remedy by way of preferring statutory appeal before the University of Calcutta in terms of provisions of Section 12 of the said Act, as the Petitioner has challenged the charge-sheet and the statement of allegations at the initial stage, on the ground of vagueness of the charges, and on the ground of bias, the writ Petitioner need not wait up to passing of the final order in order to enable him to prefer the statutory appeal before the University.

Accordingly, in my view, the writ petition - is maintainable at the stage of mere issuance of charge-sheet and the statement of articles of charges, and the learned Judge in admitting the writ petition having waived that objection, the College authorities cannot take that plea of alternative remedy at the final hearing of the writ petition.

Regarding the maintainability of the writ petition, I am of the view that the writ petition against the sponsored College is maintainable in view of the following decisions: Chittaranjan Mohato v. Anil Chakraborty 1985 (1) C.H.N. 222 , Manmohan Singh Jaitla Vs. Commissioner, Union Territory of Chandigarh and Others, , Francis John Vs. Director of Education and Others, and Sk. Alauddin v. District Inspector of Schools 1986 Lab.l.C. 925 (DB. Cal.).

In the result, in my view, the writ petition is entitled to succeed, and the same is accordingly allowed.

The impugned charge-sheet and the order of suspension dated July 28, 1985, the enquiry report dated April 4, 1987, and the final order dated August 16, 1987, are liable to be set aside and the same is accordingly set aside.

The writ Petitioner is entitled to join after 30 days from the date of this order and if within that period the Respondents do not want to proceed afresh against the writ Petitioner, on the basis of any material available to the said Respondents against the writ Petitioner by issuing fresh charge-sheet against the writ Petitioner and in accordance with law.

In any event, the Respondents are directed to pay full salary to the writ Petitioner from the period of suspension till this date.

There will be no order as to costs.

Let plain copies of the operative part of this order be supplied to the parties on their usual undertakings and upon compliance with necessary formalities.