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2002 DIGILAW 378 (CAL)

Jyotsna Bikash Ray v. State of West Bengal

2002-06-13

KALYAN JYOTI SENGUPTA

body2002
JUDGMENT The writ petitioner was a college teacher in Commerce Section of Ram Nagar College and he has been removed from services. He has challenged this impugned order of removal, as well as charge-sheet and of the disciplinary proceeding itself. On or about 12th September, 1994 he was served with a charge-sheet on the allegation of committing various misconduct, namely, unauthorised habitual absence from the duty and conducting himself in a manner which is prejudicial to the interest of the academic atmosphere of the college, as well as students, The petitioner replied to the charges, obviously denied the same, therefore, the Governing Body set up an Inquiry Committee, which has submitted a report to the Governing Body. The Governing Body, pursuant to the report of the Committee has removed the petitioner from services. 2. The learned lawyer for the petitioner contends that the entire procedure of holding disciplinary proceedings right from the stage of issuance of chargesheet up to passing of the order of removal is absolutely illegal and contrary to the procedure laid down under Section 9 of the West Bengal College Teachers (Security of Services) Act, 1975 read with West Bengal College Teachers (Security of Services) Rules, 1977. 3. He contends the charge-sheet has not been issued in accordance with the prescribed form being Appendix ‘C’. No document relied on by the Governing Body was disclosed in the charge-sheet, nor copies thereof were supplied to the petitioner as such there has been complete breach of natural justice by not adhering to the established procedure. He has cited a decision in support of his submission of Supreme Court reported in (1) AIR 1966 SC 1864. Therefore, he contends, no teacher of the college can be removed without following the mandatory provision of Section 9 sub-section (2) of the aforesaid Act. He contends further that it will appear from the language of sub-section (2) of the said section that enquiry has to be held in the manner prescribed by the Rule. He has drawn my attention to Rule 7 regarding manner of holding disciplinary proceedings and submits that none of the aforesaid procedure as prescribed in Rule 7 has been followed. 4. Mr. He has drawn my attention to Rule 7 regarding manner of holding disciplinary proceedings and submits that none of the aforesaid procedure as prescribed in Rule 7 has been followed. 4. Mr. Amal Baran Chatterjee appearing for the respondent college submits that the petitioner was a habitual absentee and in fact he being the only teacher in the commerce stream not only abstained himself from attending the classes but he use to sign attendance register without attending college or taking classes for several days. It will appear from the records that on several occasions he was reminded of his illegal acts and omission and was given chance to rectify himself. More often he used to come to college and classes in a drunken state and there was a serious commotion and unrest amongst the student and the guardians and series of complaints were received by the Principal against the petitioner. In spite of repeated opportunity being given, he did not rectify himself, as such the writ petitioner has been removed from the services with due process of law. He contends that the charge-sheet was served upon the petitioner to which he replied: Enquiry Committee gave him hearing and he participated therein, so natural justice was fully complied with. He fairly submits that though there was no strict compliance of the procedure laid down in the aforesaid Rule but then substantial compliance was there. He contends further that it is not necessary in a disciplinary proceeding which is being conducted by the laymen, all the technicalities and legal formalities are to be observed with fullproof accuracy. He contends further that the object and purpose of Section 9 sub-section (2) of the said Act read with Rule 7 of the Rules is to observe principle of natural justice. 5. Having heard respective contentions of the learned Counsels of this case in my view the only point which has fallen for consideration is that whether the petitioner has been removed from the services observing the procedure laid down under the aforesaid Act and Rules or not. Section 9 sub-section (2) of the aforesaid Act in my view gives protection to a teacher against arbitrary; illegal and whimsical action of the Governing Body in the matter of imposition of punishment. Section 9 sub-section (2) of the aforesaid Act in my view gives protection to a teacher against arbitrary; illegal and whimsical action of the Governing Body in the matter of imposition of punishment. The West Bengal College Teachers (Security of Services) Act, 1975 makes it clear that the services of the college teacher should be secured, in such a manner that reasonable degree of freedom of the teacher in the education field is ensured so that the teacher can impart education to the students without being disturbed, influenced and harassed illegally either by the Government or by the Governing Body of the private college. One of the modes of ensuring such security is to see that the college teacher is not punished without the procedure as established under the Act. Therefore, it is appropriate to set out the provision of Section 9 of the said Act. “Section 9 Penalty. (1) The following penalties may, for good and sufficient reasons and in the manner prescribed, be imposed on a teacher by the Governing Body of a college, namely: (i) censure; (ii) recovery of the whole or part of any pecuniary loss caused to the college by negligence or breach of any lawful order of the Governing Body; (iii) withholding of increments; (iv) suspension; (v) compulsory retirement; (vi) removal from service which shall not be a disqualification for future employment; (vii) dismissal from service which shall ordinarily be a disqualification for future employment as a teacher. (2) No order imposing any of the aforesaid penalties shall be made without informing the teacher concerned of the charges against him and giving him an opportunity of being heard and except after an inquiry held in the manner prescribed: Provided that penalties specified in clause (vi) or clause(vii) of sub-clause (1) shall not be imposed on a confirmed teacher except on ground of being persistently engaged in activities prejudicial to the academic or financial interest of the college or habitual dereliction of duty or physical infirmity likely to interfere with the normal discharge of his duties or mental derangement or moral turpitude." 6. In exercise of power under Section 20 of the said Act, the Government has also framed Rules, namely, the West Bengal College Teachers (Security of Services) Rules, 1977 (hereinafter referred to as the said Rules). In exercise of power under Section 20 of the said Act, the Government has also framed Rules, namely, the West Bengal College Teachers (Security of Services) Rules, 1977 (hereinafter referred to as the said Rules). The Rule 7 of the said Rule prescribes the manner in which the disciplinary procedure shall be held. The said Rule is required to be set out in this context as the writ petitioner contends that the prescribed procedure has not been followed in the case : R.Z. Manner of holding disciplinary procedure. No order imposing any of the penalties specified in sub-section (i) of Section 9 of the Act shall be made except after an enquiry is held in the manner as provided hereunder– (1) There shall be a disciplinary authority who shall draw up or cause to be drawn up against a delinquent teacher a charge-sheet in the form as provided in Appendix ‘C’ giving the following : (a) The substance of the imputations of misconduct or misbehavour into definite and distinct articles of charges. (b) a statement of imputations of misconduct or misbehaviour in support of each article of charge which shall contain– (i) a statement of relevant facts including any admission or concession made by such a teacher, (ii) a list of documents by which, and a list of witnesses by whom the articles of charge are proposed to be sustained. (2) The disciplinary authority shall deliver or cause to be delivered to such a teacher a copy of the articles of charge and the statement of imputations of misconduct or misbehaviour prepared as above and shall require the teacher to submit to the enquiring authority within such time as may be specified a written statement of his defence and to state whether he desires to be heard in person. (3) The disciplinary authority shall in all such cases constitute an enquiring authority for the purpose of such enquiry and forward to such enquiring authority– (i) a copy of the articles of charge and the statement of imputations of misconduct or misbehaviour, if any. (ii) a copy of the statement of witnesses, if any. (iii) evidence proving the delivery of documents referred to under item (ii) above to the teacher concerned. (ii) a copy of the statement of witnesses, if any. (iii) evidence proving the delivery of documents referred to under item (ii) above to the teacher concerned. (4) The teacher shall appear in person before the enquiring authority on such date and at such time within ten days from the date of receipt by him of the articles of charge etc., as the enquiring authority may be a notice in writing which may be sent by registered post with acknowledgement due, specify in this behalf or within such further time not exceeding ten days as the enquiring authority may allow. (5) If the teacher, who has not admitted any of the articles of charge in his written statement of defence, appears before the enquiring authority, such authority shall ask him whether he is guilty or has any defence to make. If he pleads guilty to any or articles of charge the enquiring authority shall record the plea, sign the record and obtain the signature of the teacher thereon. The enquiring authority shall return a finding of guilt in respect of those articles or charge of which the teacher pleads guilty. If the teacher fails to appear within the specified time or refuses or omits to plead or claims to be tried, the enquiring authority shall require the disciplinary authority or its representative to produce the evidence by which it proposes to prove the articles of charge and shall adjourn the case to a latter date not exceeding thirty days after recording an order that the teacher may for the purpose of his defence– (a) inspect within five days of the order or within such further time not exceeding five days as the enquiring authority may allow, the documents as mentioned in the list by the disciplinary authority, (b) submit a notice within ten days of the order within such further time not exceeding ten days as the enquiring authority may allow, asking for the discovery or production of any documents, which are in the custody of the disciplinary authority but not mentioned in the list as given by the disciplinary authority. (6) On receipt of the notice for the discovery or production of documents, the enquiring authority shall direct the disciplinary authority to allow the teacher to inspect such documents and to take such notes as may be necessary within a specified date and to allow the records to be despatched to the enquiring authority, if required; Provided that the enquiring authority may for reasons to be recorded in writing refuse to requisition such of the documents as are in the opinion not relevant to the case. (7) After the completion of the enquiry, the enquiring authority shall prepare a report which shall contain– (i) the articles of charge and the statement or imputations of misconduct or misbehaviour, (ii) the defence of the teacher in respect of each article of charge. (iii) an assessment of the evidence in respect of each article of charge. (iv) the finding on each article of charge and the reason therefor. (8) The disciplinary authority shall consider the report of enquiry and other relevant papers and record to its findings on each charge, (9) If the disciplinary authority, having regard its findings on the charges, is of opinion that any of the penalties as specified under clauses (i) to (iv) of sub-section (1) of Section 9 of the act should be imposed, it shall pass appropriate orders in the case. (1) If the disciplinary authority, having regard to its finding on the charges, is of opinion that any of the penalties as specified under clauses (v) to (vii) of sub-section (1) of Section 9 of the Act should be imposed, it shall– (a) furnish to the teacher a copy of the report of the enquiring authority and a statement of its findings, and (b) give him notice stating the punishment proposed and the grounds therefor and challing upon him to submit within a period not exceeding ten days such representation as he wishes to make on the punishment proposed but only on the basis of the evidence adduced during the enquiry. (10) The disciplinary authority shall consider the representation made by the teacher in response to the notice and determine what penalty, if any, should be imposed on the teacher and pass appropriate order on the case subject to the proviso to sub-section (2) Section 9 of the Act. 7. (10) The disciplinary authority shall consider the representation made by the teacher in response to the notice and determine what penalty, if any, should be imposed on the teacher and pass appropriate order on the case subject to the proviso to sub-section (2) Section 9 of the Act. 7. It would appear on careful perusal of Rule 7 that a complete and exhaustive procedure has been provided right from the stage of issuance of charge-sheet up to stage of imposing punishment upon a particular teacher. The prescribed format of Charge-sheet has also been provided in Appendix ‘C’ to the said Rules and the contents of the charge-sheet has also been stipulated in the Rules. But to my....... mind the above procedure laid down therein conform to the principle of natural justice of highest standard in all aspect and manner. 8. Now it has to be examined as to whether this disciplinary proceeding has been followed under the prescribed method or Rules or not. No doubt the Governing Body issued charge-sheet and/or show-cause and an Enquiry Committee was set up. I have gone through the impugned charge-sheet and without any hesitation I hold the impugned charge-sheet has not been drawn up at all in accordance with the Appendix ‘C’. I find in the standard format of the Appendix ‘C’, as basic ingredient there should be incorporated clearly object of holding an enquiry in the event, the charges are denied. All the allegation of misconduct and misbehaviour or lapses shall be mentioned specifically. There shall not be any indication in any manner, of inflicting of punishment. I find from the impugned charge-sheet that the college authority has indicated that the petitioner shall be discharged from the services in the event charges of misconduct are proved. In my view the Governing Body has prejudged and pre-determined its mind to impose punishment of discharge. The standard• format of the charge-sheet does not prescribe that the proposed punishment should be indicated in the charge-sheet itself. 9. Therefore, I hold that the charge-sheet has not been issued in accordance with the procedure laid down. It is settled position of the law that if the statutes requires a thing is to be done in a particular manner, it should be done in that manner or not at all. 9. Therefore, I hold that the charge-sheet has not been issued in accordance with the procedure laid down. It is settled position of the law that if the statutes requires a thing is to be done in a particular manner, it should be done in that manner or not at all. In this connection (2) (1875) 1 Ch D 426, Taylor v. Taylor, (3) AIR 1936 PC 253, Nazir Ahmed v. Emperor, (4) AIR 1975 SC 915 , (5) 1993 (3) SCC 161 (at 167) may be referred to. 10. Now I shall come to the question of observance of the principle of natural justice vis-a-vis the procedure laid down in Rule 7. From Rule 7 it will appear that in the charge-sheet there shall contain a list of document and list or witnesses upon which articles, of charges are proposed to be sustained. I do not find in the charge-sheet either of the aforesaid two things. From the tenor of the charges one can conclude without any shadow of doubt that those charges are required to be proved if denied, by documentary evidence as well as oral evidence. Incidentally, in this case the writ petitioner has denied the charges. No document was disclosed not to speak of supplying the copies thereof, nor any name of the witness was cited. 11. Therefore, I hold that the charge-sheet did not conform to the aforesaid requirements as prescribed under Rule 7. 12. The petitioner admittedly appeared before the Enquiry Officer so it cannot be said that he was not heard. I have gone through the report of the Enquiry Committee and find to my utter surprise, there is no fact finding of misconduct holding the petitioner being guilty. The allegations of unauthorised absence is sought to be established by the Committee relying on attendance register and other documents which were never disclosed nor copies thereof were supplied to the petitioner. His alleged misconduct of attending classes and coming to college in drunken condition and further allegation of disturbance and complaints of the students have been found by the Committee without examining any person or receiving any document. Therefore, I hold these findings of alleged misconduct of the petitioner by the Committee is perverse as without having any evidence. His alleged misconduct of attending classes and coming to college in drunken condition and further allegation of disturbance and complaints of the students have been found by the Committee without examining any person or receiving any document. Therefore, I hold these findings of alleged misconduct of the petitioner by the Committee is perverse as without having any evidence. So I hold also that the report of the Enquiry Officer is not only being perverse but has been prepared in complete breach of principle of natural justice by not giving a chance to the petitioner to see and rebut the documents relied on. 13. Strict adherence to the prescribed procedure is one of the facets of compliance of natural justice. Fair, reasonable and published procedure undoubtedly ensure compliance of natural justice, inasmuch as a person who is sought to be condemned is given a chance to understand his lapses and failure. In this case regrettably this procedure was not all followed. 14. I have examined the impugned order of punishment of removal it appears that the Governing Body mechanically accepted the report of the Committee. The Governing Body has absolutely omitted to note a very vital and basic thing that Committee has not held in expressed words that the petitioner is guilty. 15. The proviso of sub-section (2) Section 9 of West Bengal College Teacher (Security of Service) Act, 1975 makes it incumbent upon the Governing Body before imposition of punishment of removal, to form an opinion that delinquent teacher persistently engaged in activities prejudicial to the academic or financial interest of the college or habitual dereliction of duty physical infirmity, likely to interfere with normal discharge of his duties or mental derangement or moral turpitude. The said provision is reproduced hereunder for convenience sake :– "(2) No order imposing any of the aforesaid penalties shall be made without informing the teacher concerned of the charges against him and giving him an opportunity of being heard and except after an inquiry held in the manner prescribed: Provided that penalties specified in clause (vi) or clause (vii) of sub-section (1) shall not be imposed on a confirmed teacher except on ground of being persistently engaged in activities prejudicial to the academic or financial interest of the college or habitual dereliction of duty or physical infirmity likely to interfere with the normal discharge of his duties or mental derangement or moral turpitude.” 16. The aforesaid provision, in my view is mandatory because of the ‘word’ shall employed therein. 17. The fact finding or the report of the Enquiry Committee is not the only document to be relied on the same will be a factor in.......... The Governing Body should independently and objectively having received all the materials, form their opinion that the delinquent teacher cannot be retained in services because of his persistent engagement in the activities prejudicial to the academic interest of the college or habitual dereliction in discharge of duties. I do not find in the impugned order of removal being the resolution of the Governing Body that they have formed any opinion that the petitioner was guilty of habitual dereliction of duties. Anything short of the aforesaid requirements which is a statutory one, in my view, vitiates the entire exercise. 18. Therefore, I cannot uphold the impugned order of removal, and I act aside the same. 19. While examining the records of this matter I am of the view, however, that there are materials for which the petitioner should not be spared. It is true in this case that the prescribed procedure has not been followed but that does not mean that the petitioner should be held to be innocent by this Court. So I give liberty to the college authority to proceed afresh by issuance of the chargesheet in accordance with the from laid down under Rule 7 Appendix ‘C’ and complete such proceedings within a period of two months from the date of receipt of the reply. In the event the petitioner does not co-operate or appear before the Enquiry Committee if required to be set up then the disciplinary proceeding shall be proceeded in absence of the petitioner. 20. Thus, the writ petition is allowed to the extent as above, the petitioner shall be...... paid 50 per cent of the back wages. The petitioner is entitled to be paid costs of this application reasonably assessed at 300 G.M. Later–Mr. B.L. Sahoo, learned lawyer for the respondent prays for stay of operation of this order. In my view no stay is necessary in this matter. Accordingly the prayer for stay is refused. Let xerox plain copy of the operative portion of the order duly countersigned by the Assistant Registrar (Court) be given to the learned lawyers for the parties on usual undertakings.