Subal Chandra Halder vs State of West Bengal

Pratap Kumar Ray, J.—The Petitioner an approved Assistant Teacher being placed in a permanent post of Raninagar Junior High School has challenged the order of suspension, the disciplinary proceeding and 2nd show cause notice on proposed punishment of dismissal and thereby has prayed for the following relief�s:

(a) A Writ of and/or in the nature of Certiorari do issue commanding the Respondents concerned and each of them to certify and transmit to this Hon''ble A court ah records, orders, notices charge sheets, replies, appeal observations and counter-; observations, Rules, Circulars and correspondences relating to the purported disciplinary proceedings culminating in the Show Cause notice numbered 278 dt. 1.11.93 and the order of suspension and further the order on appeal against such impugned suspension of your Petitioner so that conscionable justice may be administered by quashing and or setting aside.

(b) A Writ of and/or in the nature of Mandamus do issue commanding the Respondents and each of them to withdraw, rescind and cancel the impugned disciplinary proceedings initiated against your Petitioner culminating in Show Cause Notice numbered 278 dt. 1.11.93 contained in Annexure ''A2'' of .this petition ;

(c) A Writ of and/or in the nature of Prohibition do issue commanding the Respondents concerned and each of them to forbear from giving any effect or further effect to the impugned disciplinary proceedings culminating in Show Cause Notice numbered 278 dt. 1.11.93 contained in Annexure ''A2'' of this petition and to any step or action taken out of the said proceedings against the Petitioner and to withdraw, recall, rescind and cancel the same ;

(d) A Writ of and/or in the nature of Mandamus do issue commanding the Respondents concerned and each of them to rescind, cancel and/or modify the impugned order passed by the Appeal Committee in Appeal No. 17/89 on May 19, 1990 and further to set aside the purported order or suspension contained in Annexure ''Q'' to this petition.

By the interim order dated February 11, 1994, Paritosh Mukherjee, J. (as His Lordship then was) allowed the Managing Committee to proceed with the departmental proceeding and to pass a final order, but restrained the said authority to communicate the final order without the leave of the Court. This writ application has been opposed by the Managing Committee of the School by filing affidavit. In their affidavit, it has been disclosed that the 2nd show cause notice proposing punishment of dismissal, which was the subject matter of the writ application, reached its finality by decision of the Managing Committee dismissing the, Petitioner from the service and the same was subsequently approved by the West Bengal Board of Secondary Education. In course of hearing, in view of the changed circumstances that the order of dismissal from service was approved and the same reached its finality, by the order dated May 16, 2002, the leave granted by me allowing the Petitioner to assail the order of dismissal which was disclosed in the affidavit-in-opposition. The Petitioner''s subsistence allowance as was being enjoyed by the Petitioner, accordingly was stopped. By Supplementary Affidavit, Petitioner assailed the order of dismissal from service. This Court directed the Managing Committee to produce the records of the case for necessary satisfaction of this Court about performance of all the formalities as were required to complete the disciplinary proceeding of a teaching staff in terms of Rules of Recognized Nongovernmental Institute (Aided and Un-aided) Rules, 1969 hereinafter referred to as Management Rules of 1969 read with the Circular Letters issued by the concerned authority prescribing the procedures of such departmental proceeding. It has been frankly conceded by Mr. K.K. Maitra, learned Senior Advocate appearing for the School Authority namely Respondent Nos. 7 to 10, that departmental proceeding was not completed in terms of the settled law as passed by the Division Bench of this Court and subsequently confirmed by the Special Bench relating to departmental proceeding of teaching staff. From the records, it appears that the Petitioner though was served with the charge sheet but no formal enquiry was held and completed by appointing any Enquiring Officer, Only on the basis of the reply pf such show cause notice filed by the Petitioner, the matter was adjudicated upon in the first stage by taking a decision to complete the departmental proceeding, which got its approval by West Bengal Board of Secondary Education hereinafter referred to as said Board,, In the second stage, in terms of the procedure of departmental proceeding applicable in the field, the same thing was repeated and ultimately the proposed punishment of dismissal was approved by the said Board, which ultimately culminated to a final order of removal of service by the resolution of the Managing Committee of the School. From the records itself it is ex-facie clear that the charges were not proved by examination of witnesses on allowing the Petitioner to cross-examine them and further Petitioner was not allowed to place his own witnesses in support of his case. No Enquiring Officer was appointed to complete the departmental proceeding. The relevant rules for initiation of departmental proceeding and to pass the order of dismissal of service is Rule 28(8) of the Management Rules, 1969, which reads thus:

Rule 28(8). Both in aided and unaided Institutions the Committee shall have the power, subject to the prior approval of the Board, to, remove or dismiss permanent or temporary teachers and other employees. For this purpose the Committee shall first draw up formal proceedings and issue charge-sheet to the teacher or the employee concerned and offer him reasonable facility for defending himself. The teacher or the employee reposed to be proceeded against shall submit his explanation, ordinarily, within a fortnight of the receipt of the charge-sheet. The Committee shall send to the Board all relevant papers including the charge-sheet, explanations submitted by the teacher or the employee concerned and the reasons for Which the Committee decides in favour of taking disciplinary action. If the Board considers that there are sufficient grounds for taking disciplinary action the Committee shall issue formal notice Galling upon the teacher or the employee concerned to show cause, ordinarily within a fortnight why� he should not be dismissed or removed from service. The Committee shall, then, send again to the Board all relevant papers including the explanation submitted by the teacher or the employee concerned and the recommendations of the Committee for the action proposed to be taken. So far as the Committee is concerned, the decision of the Board shall be'' final:

Provided that the Board may delegate to any committee constituted u/s 24 of the Act the powers and functions conferred on the Board by this sub-rule.

By Notification No. S/607 dated Calcutta, the June 21, 1982 issued by the Secretary, West Bengal Board of Secondary Education, a procedure for sending the proposals for obtaining approval in respect of disciplinary proceeding against the member of the teaching and non-teaching staff- of secondary school was introduced, which reads thus:

WEST BENGAL BOARD OF SECONDARY EDUCATION 77/2 Park Street, Calcutta- 16.

No.S/607 Dated, Calcutta, the 21st June, 1982 To The Management of all recognized Non-Govt. Secondary Institutions in the state.

Sub: Proposal for obtaining approval in respect of disciplinary proceeding against any member of the teaching/non-teaching staff of secondary schools under Rules 28(8) and (8a) of the Management of Recognised Non-Govt. Institutions (Aided and Unaided) Rules, 1969, as amended.

The Management of recognized secondary schools is hereby informed that in the matter of submission of proposal/seeking Board''s approval for the initiation of disciplinary proceedings in respect of any member of the teaching/non-teaching staff of a school under Rule 28(8) and (8a) of the management Rules, the formalities as set below shall be observed:

The school management shall initiate disciplinary proceedings against any member of the teaching/non-teaching staff .of the school in two stages as noted hereunder:

(a) First stage:

The procedure of the ''first stage'' shall comprise the following ad seriatim:

(i) Resolution of the Managing Committee containing the charges against the person to be proceeded against;

(ii) Formal charge-sheet to be issued to the person concerned, containing the articles of charges as per resolution of the Managing Committee ;

(iii) Reply to the charge-sheet by the person proceeded against to be submitted to the Managing committee ordinarily within a fortnight from the date of receipt of the charge-sheet;

(iv) Consideration of the reply by the Managing Committee and its decision thereon, with the underlying reasons for taking such decision to be stated in detail.

The school management shall, thereafter, send to the Board their proposal along with attested copies of all relevant papers coming within the scope of the ''First State'' above.

If the Board considers there are sufficient grounds for taking disciplinary action against the person concerned on the basis of papers submitted by the school and also papers that may be subsequently called for, if necessary, the Board will accord first approval to the school''s proposal for initiating disciplinary proceeding against him/her.

In air cases, the Board will acknowledge the school''s letters on the subject at the earliest opportunity.

If no communication from the Board of received within one month of submission of the proposal regarding the punishment to be meted out to the teacher/non-teaching employee, the school concerned will meet the Secretary of the Board, along with all relevant papers with a prayer for expeditious disposal of the case.

(b) Second stage The procedure of the second stage, if necessary, shall comprise the following ad seriatim:

(i) On receipt of the Board''s aforesaid approval, the Managing Committee shall issue a show-cause notice, on the basis of their resolution, to the person concerned ordinarily within a fortnight, specifying the nature of the punishment proposed to be awarded to him/her, as provided under Rule 28(8) or (8a) ;

(ii) On receipt of the person''s reply to the show-cause notice, the Managing Committee shall consider the reply in its meeting and take a decision thereon in the form of a resolution;

(iii)The school management shall thereafter forward all relevant papers as mentioned in (i) and (ii) above, to the Board for consideration ordinarily within one month of the reply to the show-cause notice, as indicated under (b)(ii).

The Board will then consider the case in all its aspects, decide it finally and communicate its decision to the school authority for implementation. The decision of Board on the matter is final and binding upon all concerned.

The school management shall not remove any person from service or award any punishment without the prior approval of the Board and without following the procedure indicated under Rule 28(8) arid/or (8a) of the Management Rules as elaborated in item 1 above.

All communications relating to the aforesaid matter shall be sent to the Secretary of the Board by name, with the superscription ''Disciplinary Proceeding'' written legibly on the envelope.

In all cases, the Board will acknowledge the school''s letters on the subject at the earliest opportunity.

If no communications from the Board by received within one month of submission of the proposal regarding the punishment to be meted out to the teacher/non-teaching employee, the school concerned will meet the Secretary of the Board along with all relevant papers with a prayer for expeditious disposal of the case.

Ad/- N. Sinha Secretary

Before the Division Bench of this Court, a question, cropped up about the meaning of the word ''reasonable facility for defending himself as appearing in Rule 28(8) of the Management Rules, 1969. The point was considered in depth in the case . Sujit Das v. The West Bengal Board of Secondary Education and Ors. 1997 (2) C.L.J. 497. The said Division Bench of this Court settled the law by holding that proper opportunity of hearing must be given following the principle of natural justice, in each and every stage of the ^departmental proceeding. The paras. 30 to 37, 40, 42 and 43 of said report being relevant paragraphs on said issue are quoted herein-below:

A disciplinary proceedings as against a delinquent can be sub-divided into 3 parts in terms of Rule 28(8) of the /said Rules. The said Rule provides for drawing up of a formal proceeding and issuance of charge-sheet to the teacher and offering him reasonable facilities for defending himself. The word ''formal proceeding'' evidently means a proceeding initiated for the purpose of enquiring into the charges against the delinquent employee. In the said proceeding, the delinquent must be offered reasonable facilities for defending himself which, . without any shadow of doubt, means that the principles of natural Justice have to be complied with. The Rule of audi alteram partem roots in fairness. It entitles the delinquent to have a fair hearing. Charges when drawn up as against a delinquent are required to be proved in a proceedings after offering him reasonable facilities for defending himself. The word ''facilities'' imports procedural fairness.

Unless the delinquent is provided with the facilities to have inspection and/or take copy of the documents upon which the Committee/Administrator relies upon, he cannot file a show cause, nor can the same satisfy the requirements of giving all opportunities to the delinquent Officer to defend himself.

Unless an effective show-cause is filed, the question of consideration thereof by the disciplinary authority at the first instance and Section 24 Committee at the second instance for the purpose of grant of approval would not arise.

Moreover, the principles of natural Justice in relation to a domestic enquiry must be held to comprise of two basic elements, i.e. the right to cross.-examine the witnesses examined by. the Managing Committee or the Administrator and right to examine witnesses in his favour. He at least is entitled to examine himself and make submissions as regards his defences. Unless, in my considered opinion, the Committee takes recourse to the said formalities, it cannot be said to have offered reasonable facilities for defending to a delinquent.

The Managing Committee or the Administrator must also record reasons as to how it has come to the conclusion for taking disciplinary action against the delinquent. Such reasons must be based on the materials on records. Section 24 Committee can permit the Managing Committee/Administrator to issue formal notice calling upon the teacher or the employee concerned, to show cause as to why he should not be dismissed or removed from the service only when the Board considers the material on records and thus comes to a conclusion that there are sufficient ground for taking disciplinary action. Such a consideration must be based on the materials which have been collected in the formal proceedings drawn up as against the delinquent employee. No document can be looked into which has been processed behind the back of the delinquent or which was not supplied to him or he was not allowed to take inspection thereof.

Upon receipt of the reply to the second showcase notice the Managing Committee/Administrator ex facie is required to take into consideration the same and only in the event if it satisfied that reply to the second show cause notice is unsatisfactory, it is to be sent again to the Board together with all relevant papers including the explanations submitted by the teacher or the employee concerned and the recommendations of the Committee for the action proposed to be taken.

Only when the power is exercised by the Committee to dismiss permanent or temporary teachers and other employees, the question of grant of prior approval of the Board thereto" arises.

Sub-rule (8) of Rule 28 has not been happily drafted. This Court while interpreting the said provision, cannot rewrite the statute but can certainly ''iron out the creases''. Sub-rule (8) of Rule 28 is a beneficent legislation so far as the delinquent employee are concerned against whom the disciplinary proceedings is sought to be taken. Section 24 Committee while granting approval of any of action of the Managing Committee/Administrator in terms of Sub-rule (8) of Rule 28 must assign reasons. It must also satisfy itself that all reasonable facilities to defend himself has been granted by the Managing Committee to the delinquent which would, inter alia, Include supply of the reasons of the Committee assigned in favour of taking disciplinary action and as also the recommendations for the purpose of giving proper opportunity to reply to the second show-cause notice.

In the instant case no enquiry was conducted except granting an opportunity to the Petitioner to file a show cause and that too without giving him the opportunity to take inspection of all the documents. A second show, cause notice was served upon obtaining an approval - of Section 24 Committee.

Nothing has been placed before the writ Court or this Court to show as to on what basis such approval had been granted. Evidently no hearing was given to the Petitioner before issuance of a second show cause notice.

In such a situation, the Section 24 Committee and/or the Appeal Committee have an onerous duty to see that No. procedural impropriety is committed by the Managing Committee/Administrator.

The profession of teaching is said to be a noble one. Once a Headmaster of the institution is dismissed from services on the ground of. defalcation of a huge amount, not only his right to earn livelihood as contemplated under Article 21 of the Constitution is infringed, it also casts a severe stigma. He may also be prosecuted in a criminal case.

The same question was considered further by the Special Bench of this Court passed in the case Arun Kumar Hait v. State of West Bengal and Ors. 1999 (1) C.H,N. 521. Before the Special Bench, the question was considered about appointment of Enquiring Officer and or presenting Officer for the purpose of holding enquiry as well as the question of procedures as would be followed by the Managing Committee of the School ; in respect of departmental proceeding against teaching and non-teaching staff. While answering the question, the Court confirmed the view as passed by the Division Bench as stated earlier. The Special Bench held that proper opportunity of hearing must be given to the delinquent teaching and non-teaching staff to meet the charges and there was no embargo for appointing an Enquiring Officer to deal with the departmental proceeding.

Hence, having regard to such views, it is now a settled law that in a departmental proceeding the teaching and non-teaching staff must be given reasonable facility for defending himself following the principle; of natural justice. Having regard to the judgments as already referred to, it is now a settled law that in a departmental proceeding against teaching and non-teaching staff, an Enquiring Officer is required to be appointed, opportunity to examine the witnesses and cross-examine the witnesses also to be given, charges to be proved by evidence, all the material documents to be supplied to the delinquent, a reasoned decision to be reached in all the stages by the appropriate authorities and the copies of enquiry report also to be served. From the aforesaid judgment, it further reveals that the Section 24 Committee who is the approving authority must assign the reasons while according approval of the decision of the Managing Committee in different stages. Having regard to such, it appears from the records that in the instant case no Enquiring Officer was appointed, charges were not proved and no opportunity of hearing following the principle of natural justice was given and the reasonable facility for defending the Petitioner was not provided. The approving authority did not disclose any reason as to why in the first stage they approved the continuation of departmental proceeding by the Managing Committee and further there is no reason assigned as to why in the second stage the proposed punishment of dismissal was approved.

Having regard to such and from the material on records, this Court is accordingly satisfied that the Petitioner was not given reasonable facility for defending himself in terms of Rule 28(8) of Management Rules 1969. In that view of the matter the order of dismissal from service, approval of proposed punishment of dismissal from service in the second stage and the approval of first stage proceeding, all are violative of the Article 14 of the Constitution of India. Hence, those are all set aside and quashed.

The Respondents Managing Committee however, will be entitled to proceed de novo by appointing an Enquiring Officer from the very first stage to adjudicate the departmental proceeding. Petitioner to be given proper opportunity of hearing by supplying all relevant documents as to be relied upon by disciplinary authority and a reply of the show cause notice would be allowed to be given after service to the relevant documents to the Petitioner. The Petitioner to be allowed to place his witnesses and to cross-examine the witnesses of the Managing Committee if any. After completion of the enquiry, Enquiring Officer will submit report before the managing Committee upon service of a copy of such to the Petitioner. On consideration, of the report of Enquiring Officer and the reply of the Petitioner if any, the Managing Committee will take a decision in the first stage as to whether departmental proceeding would continue and in the event of their decision to continue ''such, the matter would be referred to the concerned authority for approval who by a reasoned decision will decide the issue in question. In the second stage also the Petitioner would be given proper opportunity of hearing and reasoned decision to be reached by the Managing Committee and approving authority. The Petitioner would be allowed to submit his representation with reference to the proposed punishment if any. In a nutshell, the Managing Committee and other authorities will complete the departmental proceeding, if they so desire on the reflection of the judgment of the Special Bench passed in the case Arun Kumar Hait { Supra) and the judgment of the Division Bench in the case Sujit Das (Supra).

From the. records it appears that Petitioner was suspended during pendency of the departmental proceeding, which culminated to order of dismissal. After the quashing of the order of dismissal, now the question would be decided whether Petitioner would remain under suspension or would be allowed to join in the post with all service benefits.

Mr. K.K. Maitra, learned Senior Advocate appearing for the School Authority has frankly submitted that as per normal procedure, the suspension order is dissolved to the order of dismissal and when the dismissal order is set aside and quashed, there is no question of revival of suspension order. From the concerned rule that is the Management Rules, 1969 read with the procedures of departmental proceeding, it appears that there is no such rule of revival of order of suspension, once the order of dismissal is set aside and quashed. Since, there is no such provision in the statute that the order of suspension will revive, there is no question of revival of suspension order after quashing of the order of dismissal.

Mr. Ghatterjee, learned Senior Advocate appearing for the Petitioner has placed a judgment of Constitution Bench of Apex Court passed in the case Om Prakash Gupta Vs. The State of Uttar Pradesh, , wherein similar question was answered by the Apex Court, it has been held by the Apex Court that the order of suspension would not revive after quashing of the order of dismissal. The relevant paragraphs of the judgment Om Prakash Gupta reads thus:

The order of suspension made against the Appellant was clearly one made pending an inquiry. It certainly was not a penalty imposed alter an enquiry. As the result of the inquiry an order of dismissal by way of penalty had been passed against the Appellant.

With that order, the order of suspension lapsed. The order of dismissal replaced the order of suspension which then ceased to exist. That clearly was the position between the Government of the United Provinces and the Appellant. The subsequent declaration by a Civil Court that the order of dismissal was illegal could not revive an order of suspension which did not exist.

The question of deemed suspension principle has no applicability so far as the departmental proceeding against teaching and non-teaching staff in terms of the Management Rules, 1969 and the procedure of holding such departmental proceeding. Nowhere it is stipulated about such deemed suspension clause after the order of dismissal is set aside and quashed. If there would have been such stipulation, surely the question would have been different. Under Karnataka Private Education Institution (discipline and control) Act of 1975, it is provided under Rule 12(3) and 12(4) of the Rules that even after any order of dismissal is set aside and quashed either in appeal or review and matter is remanded back for de novo hearing, the delinquent would be deemed as on suspension. Relying upon such particular statutory provision, the Apex Court in the case Board of Management of S.V.T. Educational Institution and another Vs. A. Raghupathy Bhat and others, accordingly held that the Petitioner would be deemed under suspension during the de novo proceeding as was directed to be completed even though the dismissal order was set aside and quashed. In the instant case, nowhere in the Management Rules, 1969 and/or procedures of departmental proceeding for teaching and non-teaching staff, any such provision has been made on the application of the principle of deemed suspension similar to the provision of Rule 12(3) and 12(4) of the Rules framed under Karnataka Private Educational Institution (discipline and control) Act, 1975. Hence, this Court. is of the firm view that the principle of deemed suspension has no applicability in this case.

Having regard to such and oh the basis of the settled general principle of the law as reflected in the Apex Court judgment Om Prakash Gupta (Supra), in the instant case, the Petitioner would be entitled to join in his post. Having regard to the aforesaid view and observation, hence, it is ordered that the impugned decision namely approval of the first stage of the proceeding, approval of the second stage of the proceeding, approval of the proposed punishment of dismissal, order of dismissal and all consequential resolutions of Managing Committee are set aside and quashed. Petitioner is declared as on duty for the entire period while-he was under suspension and till the date of joining as per this judgment and thereby would be entitled to get all salary, allowances and service benefits. The Respondents are directed to release all arrear salary, allowances and service benefits of the Petitioner as are due upon deducting the amount of subsistence allowance as already paid within six weeks from the date of communication of the judgment. The Managing Committee is directed to prepare the bills and to submit the same within two weeks from the date of receipt of the judgment to the concerned authority and the concerned Respondents must release the salary within the stipulated date of. six weeks from the date of communication of the judgment. The Petitioner is entitled to join in his post. Managing Committee is directed to allow the Petitioner''s joining forthwith. The concerned Respondents, however, will be at liberty to proceed with the disciplinary proceeding de novo upon giving proper opportunity of hearing in terms of this judgment and the observation as made. Writ application is accordingly allowed.

Urgent Xerox certified copy of this order, if applied for, be given to the learned Advocates for the parties expeditiously.