Smt. Reba Sinha (Bagchi) vs State of West Bengal and Others

Debasish Kar Gupta, J.

This writ application is filed for a direction upon the Respondent authority to approve the appointment of the Petitioner to the post of Headmistress, Jiaganj Surendara Narayan Girls'' High School, P.O. Jiaganj, Dist. Murshidabad (hereinafter referred to as the said school) as also for setting aside the Order dated June 19, 1997 passed by the Respondent No. 3 under his memo No. 132(3) CC dated June 30, 1997.

The Petitioner was appointed as an approved Assistant Teacher in the said school on or about March 7, 1973. In the year 1994 post of Headmistress of the said school had fallen vacant and the authority of the said school took steps to fill up the aforesaid vacancy. An advertisement was published in the "Ananda Bazar Patrika" (a daily vernacular) on November 30, 1995 inviting applications from the eligible candidates to fill up the post of Headmistress in the said school. The Petitioner submitted her application as an eligible candidate for the aforesaid post. Other applicants including the Respondent Nos. 6 and 7 also submitted their applications pursuant to the aforesaid advertisement. The Petitioner received a letter of interview dated March 18/20, 1996 to appear before the selection committee on April 11, 1996. The Petitioner along with other eligible candidates participated in the interview held on April 11, 1996. The selection committee prepared a panel for appointment of Headmistress in the said school. According to the Petitioner, her name appeared on top of the panel. The Managing Committee of the said school approved the aforesaid panel and forwarded the same with all relevant papers to the Respondent No. 3 for his approval.

The Respondent No. 1 Smt. Swaswati Mukherjee (Roychoudhury) was one of the candidates and her name did not appear in the panel. As a result the aforesaid Swaswati Mukherjee (Roychoudhury) filed an application under Article 226 of the Constitution of India being C.O.6002(W) of 1996 challenging legality of the action of the Respondent authority.

The Petitioner also filed an application under Article 226 of the Constitution of India being CO. No. 8146(W) of 1996 for a direction upon the Respondent No. 3 to approve the panel in question. Both the writ applications were taken up for disposal on June 19, 1996. The writ application being CO. No. 8146(W) of 1996 was disposed of with a direction upon the Respondent No. 3 to treat the above writ application as the representation of the Petitioner and to dispose of the same in accordance with law by passing a reasoned order within a period of four weeks. Liberty was given to the Respondent No. 3 to consider the case of Smt. Swaswati Mukherjee, the writ Petitioner in CO. No. 6002(W) of 1996.

The Respondent No. 3 issued notices dated July 2, 1996 to the Petitioner as also to the aforesaid Smt. Swaswati Mukherjee (Roychoudhury) fixing the date of hearing on July 17, 1996. After hearing both of them the Respondent No. 3 sent the matter to the Respondent No. 2 seeking a clarification with regard to ten years continuous teaching experience of a candidate.

Since the Respondent No. 3 failed to take decision with regard to the panel in question in accordance with law within the period specified as per order dated June 19, 1996 passed in CO. No. 8146(W) of 1996 (in re Smt. Reba Sinha v. State of West Bengal and Ors.) the Petitioner moved an application under the Contempt of Courts Act, 1971. Thereafter, the Respondent No. 3 by order issued Under Memo No. l3/l(l)CC dated January 10, 1997 (annexure D at page 58 to this writ application) approved the panel for appointment of the Headmistress in the said school. The name of the Petitioner appeared on top of the said panel, the Respondent Nos. 7 and 6 were the 2nd and 3rd empanelled candidates respectively in the aforesaid panel.

On receipt of the aforesaid communication the authority of the said school issued a letter of appointment dated January 19, 1992 (annexure E at page 59 to this writ application) to the Petitioner appointing her in the post of Headmistress of the said school. It appears from the joining letter dated January 15, 1997 of the Petitioner (annexure E at page 60 to the writ application) that the Petitioner joined the said post on January 15, 1997.

Subsequently, the authority of the said school received a communication from the Respondent No. 3 issued under memo N0.118G dated January 13, 1997 with a direction restraining the Respondent authority from issuing any letter of appointment for the post of Headmistress of the said school. In this situation the Managing Committee of the school it its meeting dated January 29, 1997 resolved that the Secretary of Managing Committee of the said school would look after the administrative work of the said school till approval of the appointment of the Petitioner in the post of Headmistress of the said school.

The Respondent No. 3 by a further communication dated June 19, 1997 informed the Secretary of the said school that he had committed a mistake while passing the reasoned order pursuant to the direction dated June 19, 1996 give in CO. No. 8146(W) 1996. The Hon''ble Court directed the Respondent No. 3 to dispose of the writ petition of the Petitioner first and to wait for two weeks after such disposal to give effect to such decision. But the Respondent No. 3 by his order passed under memo No. 13(1)ICC dated January 10, 1997 disposed of the matter as also approved the panel in question giving effect of the decision thereto.

By a subsequent order issued under memo No. 116(3)/CC dated June 16, 1997 the Respondent No. 3 rejected the claim of the aforesaid Smt. Swaswati Mukherjee (Roychoudhury) the Petitioner in CO. 6002(W) of 1996.

The Respondent No. 6 subsequently passed an order under his memo No. l32(3)CC dated June 30, 1997 directing the authority of the said school to rectify the defect with regard to the awarding marks on academic qualification of the Petitioner and the Respondent No. 7 as also for resubmitting that panel to him for approval.

Appearing on behalf of the Petitioner Mr. Alok Kumar Ghosh submitted that the Respondent No. 3 by his order passed under memo No. 15-G dated January 13, 1997 directed the authority of the said school not to give effect to his letter of approval of the panel issued under memo No. l3-l(l)CC dated January 10, 1997. But the Petitioner had joined in the post of Headmistress of the said school before on January 19, 1997 before the aforesaid order passed under memo No. 118-G dated January 13, 1997 was received by the authority of the said school. According to Mr. Ghosh once the Petitioner had been allowed to join the post of Headmistress of the said school, it was not open to the Respondent authorities to cancel the appointment of the Petitioner in the post of Headmistress without following the principles of natural justice giving an opportunity to the Petitioner to show cause as to why the appointment in question should not be cancelled.

Mr. A.K. Ghosh Learned Advocate relied upon the decisions of Gourhari Patra v. State of W.B. and Ors. 1992 Lab IC 1568 and Sudhir Chandra Chakraborty v. W.B. Board of Secondary Education 1996 CWN 411 to submit that to cancel the appointment prior show cause notice should be issued.

Having heard the Learned Counsel appearing on behalf of the Petitioner as also taking into consideration the materials on record I find that the panel in question for appointment of Headmistress in the school in question was approved by the Respondent No. 3 as per order passed under memo No. l3/l(l)CC dated January 10, 1997. Subsequently, the Respondent No. 3 by a communication issued under memo No. 118-G dated January 13, 1997 directed the Secretary of the said school not to issue any appointment letter to fill up the post of Headmistress in the said school. It is the case of the Petitioner that she had joined the post of Headmistress of the school in question pursuant to the letter of appointment on January 14, 1997 issued by the said school. It is the case of the Petitioner that the direction of the Respondent No. 3 given by a communication under memo No. 118-G dated January 13, 1997 was received by the authority of the said school after the joining of the Petitioner to the above post on January 15, 1997. No document is available on record that the aforesaid direction of the Respondent No. 3 had been received by the authority of the said school before the Petitioner joined the post of Headmistress.

I find that the date of receipt of the aforesaid communication issued under memo No. 118G dated January 13, 1997 is the material date. If the aforesaid communication of the Respondent No. 3 had been received by the authority of the said school before the Petitioner was allowed to join in the post, then the appointment of the Petitioner in the said post would have no bearing on this case. But in the event the authority of the said school received the above direction of the Respondent No. 3 after the Petitioner had joined to the post of Headmistress of the said school, then the steps should have been taken for removing the Petitioner from the post of Headmistress in accordance with law. Because the Petitioner had to suffer civil consequences for such removal. I find no material on record from which it could be said that the authority of the said school had received the aforesaid communication of the Respondent Nos. 3 issued under memo No. 118-G dated January 13, 1997 before the Petitioner was allowed to join in the post of Headmistress.

Further, I do not find any material on record that the principles of natural justice was followed by the Respondent authorities for removal of the Petitioner from the post of Headmistress. Unless the Petitioner was removed from the post of Headmistress of the said school in accordance with law I find no reason in withholding the approval of the appointment of the Petitioner to that post.

It is well-settled principles of law that a disciplinary proceeding is required to be conducted for removal of a Government servant from service. In this regard the relevant decision of Workmen, Workmen of Hindustan Steel Ltd. and Another Vs. Hindustan Steel Ltd. and Others, is quoted below:

The view we are taking gets some support from a decision of this Court. In a slightly different situation, this Court in L. Michael and Another Vs. Johnson Pumps Ltd., ) observed that discharge simpliciter on the ground of loss of confidence when questioned before of loss of confidence when questioned before a Court of law on the ground that it was a colourable exercise of power or it is a mala fide action, the employer must disclose that he has acted in good faith and for good and objective reasons. Mere ipse dixit of the employer in such a situation is of no significance. Where a disciplinary enquiry is dispensed with on the specious plea that it was not reasonably practicable to hold one and a penalty of dismissal or removal from service is imposed, if the same is challenged on the ground that it was a colourable exercise of power or mala fide action, the same situation would emerge and the employer must satisfy the Court he good and objective reasons showing both proof of misconduct and valid and objective reasons for dispensing with the enquiry. In our opinion, when the decision of employer to dispense with enquiry is questioned, the employer must be in a position to satisfy the Court that holding of the enquiry will be either be counter-productive or may cause such irreparable and irreversible damage which in the facts and circumstances of the case need not be suffered. This minimum requirement cannot and should not be dispensed with to control wise discretionary power an to guard against the drastic power to inflict such a heavy punishment as denial of livelihood and casting a stigma without giving the slightest opportunity to the employee to controvert the allegation and even without letting him know what is his misconduct.

Once it is held that the Petitioner was not removed from the post of Headmistress of the said school, it was not open to the Respondent authorities to sit tight over the question of approval of her services.

As a consequence the impugned order passed by the Respondent No. 3 under memo No. 132(3) CC dated June 30, 1997 directing the authority of the said school to resubmit the panel for filling up the post of Headmistress of the said school cannot be sustained in law and the same is quashed and set aside.

The Respondent No. 3 is directed to accord approval of appointment of the Petitioner to the post of Headmistress of the said school with effect from January 15, 1997, i.e. date of joining of the Petitioner to the aforesaid post within six weeks from the date of communication of this order and to release all consequential benefits attached to the post of Headmistress of the said school to the Petitioner expeditiously.

This writ application is thus disposed of.

There will be, however, no order as to costs.

Urgent Xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.

Writ petition disposed of with directions.