Suchitra Sen alias Roy vs State of West Bengal

Mahitosh Majumdar, J.—This writ petition is directed against an order dated September 14, 1990, terminating the services of the Petitioner who was working as Assistant teacher in Sangavani Institution for Girls (for the sake of brevity referred to as the said school) without any regular enquiry by issue of charge-sheet. By this writ petition, the Petitioner prays for a mandate upon the Respondents to forbear themselves from giving any effect or further effect to the order of termination of service and for cancellation and/or withdrawal of the said order of termination.

The said school is a Government sponsored High School and affiliated to the West Bengal Board of Secondary Education having a special constitution, with the financial support to the extend of 95 percent from the State comes within the sweep of Article 12 of the Constitution of India.

The facts of the case in brief are in the manner following:

The Petitioner was appointed initially in Science group against a permanent vacancy in the scale of pay and usual Dearness allowance and other allowances as admissible under the relevant rules with effect from February 1, 1980. She was confirmed on completion of two years'' continuous satisfactory service. The Petitioner was on maternity leave from the month of June 1986 to September 1986 for which she was accorded full pay for that period. The Petitioner on the basis of the request of the Respondent No. 2 had to stay at Nabadwip with her family instead of Krishnagar though the Petitioner was not required by the rules and regulations to change the place of her residence at the dictates of the Respondent No. 2.

On November 9, 1987, the Petitioner received a letter from the school authorities alleging that the Petitioner was still continuing to attend her school from Krishnagar and she failed to stay at Nabadwip and thereby failed to maintain school discipline by reason of the violation of the expressed order of the school authorities. On March 4, 1988, a notice intimating the Petitioner that she failed to submit an undertaking which was required to be submitted by her by February 20, 1988, as agreed to, before the Members of the Managing Committee present in the meeting held on February 12, 1988, in terms of the direction of the President was issued by Respondent No. 2. The Petitioner was further informed that she should explain why she violated the order within 24 hours otherwise action would be taken against her in terms of decision of the Managing Committee held on February 12, 1988. Immediately thereafter, the Petitioner replied to the said show-cause notice by her letter dated March 5, 1988, by recording the fact that she was not intimated nor served any reply to her letter dated March 4, 1988, and the subject of undertaking be informed to her in writing as early as possible.

On March 7, 1988, the Petitioner received a letter from the Headmistress of the school informing her that she would not be allowed to join the school until and unless she would clarify her position. It was further alleged that the Petitioner had violated the decision of the Managing Committee. The Petitioner by letter dated March 16/28, 1988, informed the Respondent No. 2 that she was not intimated nor received any reply to her letter of March 4, 1988, and without giving her an opportunity she was asked not to join the school from March 7, 1988. The Petitioner by that letter requested the Respondents to allow her to join her duties. Despite the exchange of letters, the Petitioner was not informed about the nature of the undertaking to be given by her to the said school authorities.

The Petitioner by letter dated March 13, 1988, asked the Respondents No. 2 to inform the kind of undertaking she was to place before the said school authorities. Even then, the school authorities pressed for the same point time and again. The Petitioner being the holder of a permanent post for a long time adhering to all rules and regulations. As a teacher she had, discharged her duties to the full satisfaction of the school authorities. There could not be any break in her service. She asked the school authorities to intimate her about the nature of undertaking which she would submit and she further submitted that she might be allowed to join the duties. But the Respondents did not do anything on the matter.

In those compelling circumstances, the Petitioner initiated an action by filing a suit being T.S. No. 46 of 1988 for a declaration that she was still continuing as Assistant Teacher in the said school and for permanent injunction and for other reliefs. An application for ad interim injunction was also filed. Initially, the trial Court granted the interim order of injunction but subsequently that was vacated. Against the order vacating injunction, an appeal was preferred before the District Judge, Nadia. The said appeal was registered as Misc. Appeal No. 35 of 1989. The order of the trial Court on August 21, 1989, vacating the interim order was stayed by the First Appellate Court by its order, No. 1 dated August 31, 1989. Against the said order of the First Appellate Court, the Respondent No. 2 along with others filed a Revisional application before this Court. This Court passed an order remanding the case back to the First Appellate Court. Thereafter, the matter was taken up for hearing on November 3, 1989, by the First Appellate Court when the following order was passed:

Since the lawyer of the Respondent today has submitted before this Court that they will not take any action against any previous conduct of the Appellant if the Appellant files an undertaking to the effect that she will follow the directions of the Managing Committee obeys its decision hence this Appellant files this undertaking to this following effect:

(i) That she will follow the leave rules in future;

(ii) That she will follow and obey the resolutions of the M.C. as per rules;

(iii) That if the Appellant violates any rules and terms of the undertaking, the Managing Committee shall have the power to take any action against her according to law in future.

After the disposal of the case, the Petitioner wrote a letter to the President of the said school to the effect that she used to attend the said school regularly from a rented house at Nabadwip and occasionally she used to attend from Krishnagar as there was no one to look after her own father. More particularly, the Petitioner was the only child of her parents. Her husband and little son also used to stay at Krishnagar. Similar request was sent to the school authorities on November 21, 1989, and December 7, 1989, for consideration of her case as would appear from the letter dated November 16, 1989. Thereafter, the writ Petitioner received a letter dated November 19, 1989, along with a resolution dated December 15, 1989, whereupon it would appear that Sm. Reba Bakshi informed the writ Petitioner that in answer to het application on different dales the following decisions of the Managing Committee was adopted:

Resolved that on receiving the final decisions and the Hon''ble Court''s order, she can be received at the subsequent meeting of the M.C. The letters of Smt. Suchitra Sen dated November 16, 1989, November 21, 1989, November 21 1989, November 28, 1989, and December 7, 1989, were read. It is to be noted that in her letter (in Bengali) she stated that she was so long attending the School everybody from a rented house at Nabadwip... In the application dated November 16, 1989, she had informed that even before that date she was attending the said school from a rented house at Nabadwip... In the application dated November 16, 1989, she had informed that even before that date she was attending the said School from a rented house at Nabadwip...(which are according to informations and documents at the disposal of the authority travesty of truth).

Again in her letter dated December 7, 1989, she stated that she was attending the school from the following address with effect from November 28, 1989 (that means before November 28, 1989, she was residing permanently at Nabadwip without authorisation of the school).

The Petitioner to her utter surprise received a letter from the Headmistress of the said school informing her that she did not submit anything to the school authorities to clear her position as a teacher in the said school under a Managing Committee and she was required to follow the rules of the said school nor she did furnish a copy of her undertaking to the Court. No documents from the Petitioner was received by the school authorities for the withdrawal of the Misc. Case No. 35 of 1989. No record or statement excepting her statement that she was residing at Nabadwip since November 20, 1989, proving that the Petitioner was staying at Nabadwip and was attending the school therefrom had been submitted, It is also recorded in the said letter that unless the documents, as asked for, are submitted, her pay fixation as per Government orders cannot be finalised.

The Petitioner relied to the aforesaid letter dated May 19, 1990, by a letter dated May 24, 1990, inter alia, staling therein that she had been residing at No. 2 Mahaprabhu Lane, P.O. Nabadwip, together with her supporting documents, i.e. xerox copies of the rent receipts. It was further recorded by het that she had been strongly following the rules of the school and no further undertaking could be submitted again after the order of the District Judge for the past events. The Title Suit was withdrawn on June 27, 1990. The Headmistress by her letter dated August 20, 1990, directed the Petitioner to appear before the Enquiry Committee on September 4, 1990. No charge-sheet was served on the Petitioner nor the Petitioner was given any opportunity of hearing the grounds/charges. The Petitioner duly appeared before the so-called Enquiry Committee. The Petitioner answered all verbal questions to the satisfaction of the said Committee and also clarified her position. The Petitioner was not given any Written questions for answer thereto by her. The Petitioner did not receive any charge-sheet nor a prior approval of the Director of School Education was obtained. By a letter dated September 14, 1990, the Petitioner was informed that her service stood terminated. A cheque dated September 14, 1990, three months'' salaries was also enclosed along with the said letter as compensation in lieu of notice. The Petitioner was not served with the copy of the enquiry report nor other documents. The allegations or charges of insubordination, delinquency and indiscipline were not otherwise leveled against the Petitioner. There is no provision for termination of service without initiation of the disciplinary proceeding by giving the delinquent an opportunity of representing his or her case. In those circumstances, the writ Petitioner challenged the order of September 14, 1990.

The stand of the Respondents Nos. 1 to 12 would appear from the affidavit-in-opposition filed by them. It is submitted by the Respondents that the Petitioner accepted the ideals of the society at the time of her appointment, that Rules for Management of Sponsored Institution (Secondary), 1972 (hereafter referred to as the said Rules) apply to the said school, that the writ petition is founded upon misconception of the application of the Rules for the Management of the Non-Government Institution (Aided and Unaided) 1969; that the Petitioner ought to have made a representation on being dissatisfied with the decision of the Managing Committee, before the Director of School Education under Rule 23(iii) of the Rules and that the Petitioner cannot straightway come before this Court under Article 226 of the Constitution. Moreover, the writ Petitioner had full knowledge of the constitution of the Enquiry Committee and she duly appeared before the Enquiry Committee on September 4, 1990, and also fully under stood the charges leveled against her in writing and thereafter answered to the same. The Enquiry Committee after consideration of the entire aspects passed the order. The Enquiry Committee has not been made a party. The writ petition suffers from suppression of material facts. The Managing Committee, after observance of fair procedure and granting a reasonable opportunity of representing the case to the Petitioner, decided the matter. The writ petition cannot but fail on the grounds as are raised in para. 3 of the affidavit-in-opposition. It was further urged on behalf of the Respondents that the Petitioner cannot make any complaint against holding of the enquiry and the decision of the authority concerned; that the earlier letters that were addressed by the Petitioner would show that the Petitioner was duly informed of the charges levelled against her and the Petitioner did not take care to act in terms of the direction of the Managing Committee.

The order dated September 14, 1990 was passed properly and in due compliance of Rule 23(iii) of the said Rules. All the allegations made by the Petitioner were without any basis. As to why the Petitioner was asked to show cause was effectively placed in para. 7 of the affidavit-in-opposition and the decision thus taken by the Respondents did not violate any statutory Rules. Special stress was laid on the decision of the Managing Committee dated April 20, 1988, when the Petitioner was duly served with the show-cause notice and the charge-sheet. The said charge-sheet and the show-cause notice are contained in Annex. ''F'' at pp. 70, 71, 73 and 74 of the affidavit-in-oppsition. It was alleged that the Petitioner was duly served with the charge-sheet which the Petitioner deliberately suppressed. Apart from the charges leveled against the Petitioner, she was further charged for not giving an undertaking and carrying out the orders of the Managing Committee. In those circumstances, the plea that the Petitioner was not served with the charge-sheet and the termination of the Petitioner''s service was in violation of the statutory rules cannot be sustained. The Petitioner filed the reply to the said affidavit-in-opposition which is more or less reiteration of her stand in the writ petition.

The matter was contested and heard. Mr. Kashi Kanta Moitra, learned Senior Counsel, duly assisted by Mr. Aloke Kumar Ghosh appeared for the Petitioner. Mr. Arun Prakash Sircar, the learned senior Counsel, duly assisted by the learned Advocate appeared for the Respondent, Nos. 1, 2, 3, 5, 8 to 12. Mr. K.N. Laha was initially not present on February 5, 1991, when Mr. Soumitra Dasgupta, learned Advocate, was asked to appear on behalf of the Respondents, and to produce records of the case. It was submitted by Mr. Dasgupta that he duly obtained the records of the case from the concerned Respondents. The Court appreciates the efforts of Mr. Dasgupta in producing the records. Mr. Dasgupta in his usual fairness submitted and produced the records of the case and submitted them. Mr. K.N. Laha, learned Advocate, was appearing for the Respondent No. 15. The Court once again appreciates the services of Mr. Dasgupta who went out of the way to produce the records of the case so as to help the Court to come to a just decision, but this Court allowed Mr. Laha to present the case of the State.

Learned Counsel for the Petitioner challenges the entire action of the Respondents by contending, inter alia, that the order dated September 14, 1990, is a nullity inasmuch as, Rule 23(iii) of the said Rules was completely breached, that the school authorities did not act in terms of the Rules; that the order of termination was passed without giving the Petitioner any opportunity of representing her case nor was she allowed to controvert the charges as would appear from the order dated September 14, 1990.

Mr. A.P. Sircar claimed and contended that the stand taken by the Petitioner that she was not given any show-cause notice nor an opportunity of representing her case before the order of termination was effected is without any factual and legal foundation. The order was passed legally, validly and properly. Mr. Sircar contended that this Court should not entertain this writ petition for the sole reason that the Petitioner did not challenge the order dated September 14, 1990, before the appropriate authority. According to Mr. Sircar, the Petitioner did not reply to the charges leveled against him. It appears from the records that the school authorities furnished all papers relating to the Petitioner after the order of the District Judge, Nadia, to the Director of School Education, West Bengal. Along with the resolution of the Managing Committee, certain papers were sent under cover of the letter dated September 14, 1990. It appears further that complaints which were lodged against the Petitioner by different persons were not furnished to the Petitioner nor communicated to her. Mr. Moitra, learned Senior Counsel appearing for the Petitioner, in support of his contentions cited the decisions of the Supreme Court in the cases following: Ranjit Thakur v. Union of India 1987 (4) S.C.C. 616 , State of Uttar Pradesh and Others Vs. Maharaja Dharmander Prasad Singh and Others, Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, , Central Inland Transport Corporation v. Brojonath Ganguly 1986 S.C.C. (L.S.) 429 and Union of India v. Md. Ramjan Khan Lab. I.C. 309.

In the case of Stale of Ranjit Thakur v. Union of India (Supra) the Supreme Court held, inter alia:

The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenary powers of the summary jurisdiction of the court-martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and, correspondingly, more liberal the construction of the procedural safeguards envisaged by the statute. The off-quoted words of Frankfurter J. in Viteralli v. Seaton are again worth recalling:

... if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, right so. He that takes the procedural sword shall perish with that sword...''The history of liberty'' said the same learned Judge, ''has largely been the history of observance of procedural safeguard''s.

In the case of State of U.P. v. Maharaja Dharmendar Singh (Supra) the learned Judge of the Supreme Court, while dealing with the aspect of judicial review, also took into account the relevant issues which vitiates the decision making process of the executive and held such decision making process the executive is review able by the High Court under Article 226 of the Constitution. The relevant passages of the report reads thus:

Judicial review under Article 226 cannot be converted into an appeal. Judicial review is directed not against the decision, but is confined to the examination of the decision-making process. When the issue raised in judicial review is whether a decision is vitiated by taking into account of relevant factors is so manifestly unreasonable that no reasonable authority entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors. In the present case it is, however, not necessary to go into the merits and relevance of the grounds. Chief Constable of the North Wales Police v. Evans.

The Supreme Court further observed in the Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly (Supra) that Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power... It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them.

Further, the learned Judge of the Supreme Court in the case of Delhi Transport Corporation v. D.T.C. Majdoor Congress (Supra) held (contra)

In the year 1990, it is not necessary to discuss in detail the authorities which have widened the horizons of Article 14 of the Constitution. Some of these precedents are directly on the point inasmuch as the validity of similar service rules was considered there. It is enough if 1 summaries the position of law as it obtains today.

There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however, high-placed they may be. It is all the more improper and undesirable to expos� the precious rights like the rights of life, liberty and properly to the vagaries of the individual whims and fancies. It is true to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complainant presumption that those who occupy high posts have a high sense of responsibility... The right to life includes right to livelihood. The right to livelihood, therefore, cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and, when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.

The learned Judges of the Supreme Court in the case of Union of India v. Md. Ramjan Khan (Supra) while dealing with the question of reasonable opportunity envisaged by the provision under consideration includes

(a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based.

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally-

(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, such he can only do if the competent authority after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposed to inflict one of these three punishments and communicates the same to the Government servant.

Reliance was placed on another decision in the case of Mazharul Islam Hashmi Vs. State of U.P. and Another, where the learned Supreme Court held-Every person must know what he is to meet and he must have opportunity of meeting that case. The Legislature, however, can exclude operation of these principles expressly or implicitly. But in the absence of any such exclusion, the principle of natural justice will have to be proved.

Mr. Moitra further claimed and contended that the Respondents are bound by the order of the First Appellate Court dated September 3, 1989, in Misc. Appl. No. 35 of 1989 to the effect that the school authorities would not take any action against the previous conduct of the Petitioner. The charges relate to the period covered by the order of the First Appellate Court and the said charges could not be the basis of a proceeding for the purpose of terminating the service of the Petitioner in an arbitrary and draconian manner.

The focal point for determination of the issues involved is whether the termination of the services of a permanent teacher could be made without compliance with the basic requirements conforming to the concept of fair play in action and fundamentals of audi alteram partem, namely, (a) A charge-sheet should be issued to the teacher; (b) The teacher shall be given an opportunity of replying to the charge-sheet: (c) An enquiry shall be held against the charges; (d) Reasonable opportunity should be accorded to the charge-sheeted teacher to defend his/her case; (e) No fact or document should be withheld from the knowledge of the person fastened with charges; (f) Hearing should be quasi-judicial in character and shall be held after following the principles of natural justice. The aforesaid requirements, if satisfied, will undoubtedly constitute proper compliance of Rule 23(iii) of Rules.

Mr. Sircar, the learned Counsel for the school authorities was asked to explain as to whether the requirements in terms of Rule 23(iii) of the Rules could be said to have been complied with in the absence of the following (a) No charge-sheet was admittedly issued; (b) No explanation to the show-cause notice was admittedly obtained from the Petitioner; (c) No enquiry officer was appointed nor the right of cross-examining the witnesses was allowed to the Petitioner nor a copy of the enquiry proceedings was furnished to the Petitioner; (d) No regular enquiry was held: (e) A copy of the enquiry report prepared was not furnished to the Petitioner; (f) A copy of the relevant documents was not furnished to the Petitioner; (g) School authorities relied on the resolution of the Managing Committee dated April 20, 1988, the relevant papers communicated thereafter and such reliance is illegal: (h) No opportunity of hearing which must be quasi-judicial in character was given after following the principles of natural justice. The expression ''reasonable opportunity of representing the case'' appearing in Rule 23(iii) of the Rules requires the charge-sheeted teacher against whom the charges are made must know the circumstances appearing against him/her. So that it might be possible for him/her to give proper explanation or to controvert the same. When the evidence is oral, namely, the examination of witnesses be in its entirety must take place before the party concerned who shall have the fullest opportunity to cross-examine the person. In this case, questions were put to the Petitioner in an indiscriminate manner without there being any specific charge against her to, that effect. No documents were exhibited. Documents in question were not made available to the Petitioner.

Mr. Sircar further submitted that the Court should not re-appreciate the evidence, but at the same lime, the Court must find out whether a fair or reasonable opportunity in the facts and circumstances of the case is given to a charge-sheeted employee.

Mr. Sircar was repeatedly asked to place the relevant document, viz. the charge-sheet. The documents which were placed before this Court relate to the date, i.e. November 3, 1989, and prior thereto. The documents, therefore, could not be treated as the charge-sheet. Apart from that, the most interesting aspect of the entire matter is that during the course of enquiry proceeding, volleys of questions were put and answers to the said questions were obtained. On this aspect, the Court required Mr. Sircar to explain-(a) how in the absence of the charge-sheet any such question or questions could be put in writing for the purpose of obtaining the answer thereto and, (b) whether such procedure in the absence of charge-sheet, without any explanation being obtained from the delinquent could pass the tests of fairness and how the requirements of Rule 23(iii) of the said Rules could be said to have been satisfied. Rule 23(iii) reads thus:

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

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

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

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

(iv)....

(v)....

(vi)....

(vii)....

(viii)....

(ix)....

(x) grant deputation of teachers, where such deputation is in the interest of the Institution in conformity with rules and order on the subject ; Provided that a teacher affected by the decision of the Committee may make his representation to the Director;

Rule 23(iii) of the Rules is mandatory in character, then the observance of the fundamentals of fair play in action or Rules of natural justice and cannot be given a go-by. Careful scrutiny of the records produced before this Court would show that certain ad hoc procedure was adopted for the purpose of finding the Petitioner guilty. The nature of charges as would appear from the questions put to the Petitioner are vague. It further appears that before September 4, 1990, when the members of the Committee before whom the Petitioner was present for replying to the questions which were never furnished to her. The school authority obtained certain reports and adverse materials against the Petitioner without furnishing the same to the Petitioner. The said report and/or information''s were never disclosed to the Petitioner. The nature of questions that were put to the Petitioner is somewhat shocking and contrary to the concept of reasonable opportunity of making representing her case.

Mr. Sircar was asked to produce the charge-sheet containing the charges against the Petitioner and also the enquiry report said to have been prepared by the Enquiry Committee. The Court must record its appreciation for production of the Resolution Book as also the Enquiry Report. Mr. Sircar was asked whether the copy of the Enquiry Report was served on the Petitioner or not? It appears from the records that the same was not furnished to the Petitioner. It is clear that before the so-called enquiry held on September 4, 1990, the members of the Managing Committee recorded certain findings as regards the activities of the Petitioner quoted herein before. The members of the Managing Committee further formed opinion that in spite of repeated requests and directions issued by the Managing Committee, the Petitioner turned a deaf oar to the Administration and academic interest of the Institution and compelled the Managing Committee to take drastic action against her. The members of the Managing Committee further resolved that before taking any serious measures an Enquiry Committee be formed with the personnel as referred to in the resolution. It further resolved that the Enquiry Committee will enquire into the matter and submit report before August 6, 1990. Furthermore, the opinion of the members of the Enquiry Committee was expressed before September 4, 1990. It is also recorded by the members of the Enquiry Committee (hat before the holding of the enquiry the Enquiry Committee recorded as regards the question to be asked by the Enquiry Committee and different notices issued to the Petitioner by the Headmistress/Secretary from time to time. The Petitioner was not given any opportunity of knowing the aforesaid resolution as also the opinion of the Members of the Enquiry Committee as expressed on August 3, 1990. It is manifestly clear that the members of the Managing Committee already decided that drastic steps will be taken against the Petitioner. It is also unanimously resolved that before taking serious measures an Enquiry Committee be formed. The action of the Respondents is wholly prejudged and pre-determined. This amounts to complete breach of the fundamentals of fairness. Therefore, the focal point that calls for determination is whether the Petitioner was given an opportunity of representing her case. It further appears that there was no charge levelled against the Petitioner before holding of the meeting of the members of the Enquiry Committee and they were allowed to go through the papers and prepare questions to be answered by the Petitioner. Findings of the Enquiry Committee covers number of charges regarding violation of resolution and directives of the Managing Committee. Regarding the case of Nabadwip, notes were made in the records. Allegations levelled against the Petitioner were vague in nature and the Petitioner was not given the opportunity to deal with the said questions by reason of the failure of the school authorities to issue charge-sheet.

The contention of Mr, Sircar that the Petitioner was given adequate opportunity before the Enquiry Committee to represent her case, in my opinion, is to be examined in the light of the decisions cited at the bar. The decision of Ranjit Thakur v. Union of India (Supra) deals with the procedural safeguards which should be commensurate with the sweep of the powers. The relevant portion of the judgment has already recorded earlier in this judgment.

On the question of arbitrary use of power by the concerned school authorities, I have already quoted the relevant portion of the judgment in the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress (Supra) where the Supreme Court clearly held that the right to life includes right to livelihood and, therefore, the said right to livelihood cannot hang on to the fancies of the individuals in authority. When income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental.

Further, when the judicial review under Article 226 of the Constitution, cannot be reconverted into an appeal, the Court is not oblivious of the principles as laid down by the Supreme Court in the case of State of U.P. v. Maharaja Dharmendar Prasad Singh (Supra). The relevant portion of the decision of this case is also noted in this judgment earlier. Referring to the decision in the case of Chief Constable of North Wales Police v. Evans (1982) I.W.L.R. 1155 the Supreme Court observed that Judicial Review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. It was further held that it would be an error to think that the Court sits in judgment not only in the correctness of the decision-making process but also on the correctness of the decision itself.

While dealing with Article 14 of the Constitution, the learned Judges in the case of Central Inland Water Transport Corporation Ltd. v. Brojonath Ganguly (Supra) held that Article 14 guarantees to all persons equality before the law and the equal protection of the laws.

At this stage Mr. Kashi Kanta Moitra raised a serious challenge to the directives of the school authorities upon the Petitioner to stay at Nabadwip. Such directive of the school authority, according to Mr. Moitra, amounts to curtailing the Petitioner''s right of locomotion. The nature of grievance in this writ application involved calls for judicial review. Mr. Moitra further criticised the plea of the Respondents that the application filed u/s 156(3) before the Judicial Magistrate for investigation into the alleged offences under Sections 418/20 of the Indian Penal Code should be treated as the first information report.

Mr. Moitra further referred to para. 23 of the affidavit-in-reply affirmed by the Petitioner and submitted that no first information report was filed against the Petitioner nor did the Government require any document for fixation of pay scale. Since no first information report nor any document connected therewith was presented before this Court, it will not be proper to express any opinion on the said complaint.

The contentions of Mr. Sircar could have been accepted had there been charge-sheet and proper opportunity given to the Petitioner to show cause and thereafter an opportunity to represent her case. Observance of fair play in action has been given a total go-by in this case.

In view of the discussions made above, I am of the view that the impugned order cannot be sustained in law and, accordingly, the same is set aside. The Respondents are directed to re-instate the Petitioner forthwith. The Petitioner shall be paid all her arrears of salaries and other service benefits within three months from this day.

The application therefore succeeds, but there will be no order as to costs.

Mr. Chakraborty prays for stay of operation of this order on the ground that the criminal case is pending before this Court. Since I have already recorded that no document and/or papers relating to the First Information Report being presented before this Court, no opinion was expressed on this aspect. The prayer for stay of operation of this order is thus refused.