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2002 DIGILAW 47 (CAL)

Gobardhan Manna v. State of West Bengal

2002-01-29

Ashok Kumar Mathur, Subhro Kamal Mukherjee

body2002
JUDGMENT Subhro Kamal Mukherjee, J.: Gobardhan Manna, since deceased, was an Assistant Teacher of Namkhana Narayan Vidya Mandir. The West Bengal Board of Secondary Education appointed him as the examiner in respect of Higher Secondary Examination, 1974 for examining English second paper scripts. He was allotted 200 answer scripts. While the answer scripts were under his custody, he came to Calcutta for treatment of his son. During his temporary absence, 45 answer scripts were stolen from his residence. A criminal case was initiated against him under sections 467, 511, 109 and 120B of the Indian Penal Code. The school authorities placed him under suspension on July 20, 1974 on account of pendency of the criminal case against him. However, by order dated August 10, 1979 the learned Judicial Magistrate, First Class, Purulia acquitted him holding, inter alia, that he was not guilty of the charges framed against him. Gobardhan Manna requested the school authorities to revoke the order of suspension and to accord permission to him to join the school, but his prayer was not granted. 2. In the aforesaid background, an application under Article 226 of the Constitution of India (writ petition in short) was moved by the said Gobardhan Manna challenging the decision of the school authorities in placing him under suspension and in not revoking the same after his acquittal from the criminal charges. The writ petition was registered as Civil Rule No. 1299(W) of 1982. 3. In spite of service of the notice of the Rule, West Bengal Board of Secondary Education did not come forward to contest the Rule, but the school authorities filed their affidavit-in-opposition to the writ petition wherein it was, inter alia, stated that the proposal to terminate the service of the writ petitioner has been approved by the Board in the meeting dated September 19, 1985 and the approval was communicated by the Board to the school under Memo No.7296/G dated December 2, 1985. It was stated that, accordingly, the school has terminated the service of the writ petitioner with effect from January, 1986. 4. In normal course the retirement of the writ petitioner was due in February, 1986 and the appropriate authorities did not consider his prayer for extension on account of such termination of service. 5. Being aggrieved the writ petitioner moved the second writ petition challenging his order of termination. 6. 4. In normal course the retirement of the writ petitioner was due in February, 1986 and the appropriate authorities did not consider his prayer for extension on account of such termination of service. 5. Being aggrieved the writ petitioner moved the second writ petition challenging his order of termination. 6. Both the writ petitions were heard analogously by a learned Single Judge of this court and by judgement and order dated May 18, 1987 the learned Single Judge disposed of both the writ petitions and directed that the suspension order passed by the school authorities against the writ petitioner should stand revoked from the date of order of acquittal passed by the learned Judicial Magistrate on August 10, 1979. With regard to the order of termination, the learned Single Judge directed the Board to reconsider the entire matter in accordance with law after giving notice to the writ petitioner and after giving a proper hearing to the writ petitioner. It was, further, directed that in the event it is detected that the order of suspension and the order of termination were wrongful, the Board should make an order enabling the writ petitioner to claim pay for the entire period from the date of his acquittal in the said criminal proceedings to the date of his retirement. 7. The writ petitioner being aggrieved preferred the present appeal contending that the order of termination ought to have been set aside by the learned Single Judge due to his acquittal in the criminal case and that the same has not been passed strictly according to the rules. 8. During the pendency of the appeal the writ petitioner, Gobardhan Manna, died and his heirs and legal representatives have been substituted in this appeal. 9. The Supreme Court of India in the case of Corporation of City of Nagpur vs. Ram Chandra & Ors., reported in 1981 (II) Labour Law Journal 6, held that normally where an accused is honourably and completely acquitted, it would not be expedient to continue the departmental enquiry on the very charges or grounds or evidence, but the fact remains, however, that merely because the accused has been acquitted, the power of the authority concerned to continue with the departmental enquiry was not taken away nor its discretion in any way fettered. 10. 10. It is, thus, clear that there is no complete bar to hold departmental enquiries when an employee is acquitted from criminal proceedings as the law is well settled that an enquiry officer can come to a different conclusion than the one arrived at by the criminal court. It is immaterial whether the charges were identical or witnesses were common. The power exercised by the criminal court and an enquiry held by the domestic authority under service law is distinct and separate: In view of the disputed questions involved in the matter, the learned Single Judge committed no error by directing reconsideration of the order of termination passed against the writ petitioner by the West Bengal Board of Secondary Education. 11. We, thus, do not find any merit in this appeal. 12. By way of abundant caution, it is made clear that, after considering the facts and circumstances of this case, the West Bengal Board of Secondary Education will be free to decide as to whether or not the punishment inflicted on the writ petitioner is sustainable and it is, also, made clear that we have not expressed any opinion on the question punishment on the writ petitioner. During the pendency of the appeal, as indicated hereinabove, the writ petitioner died and his heirs have been substituted. In view of the non-availability of the writ petitioner, the Board will give reasonable opportunity including personal hearing to the heirs and legal representatives of the deceased writ petitioner. 13. The appeal is, thus, dismissed. 14. There will be no order as to costs. Let xerox certified copy of this order, if applied for, be supplied to the parties expeditiously. Ashok Kumar Mathur, C. J.: I agree. Appeal dismissed.