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2006 DIGILAW 668 (CAL)

MAHADEB BHATTACHARJEE v. THE STATE OF WEST BENGAL

2006-10-27

JAYANTA KUMAR BISWAS

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Before Jayanta Kumar Biswas, J. ( 1 ) THE petitioner in seeking a mandamus directing the authority of rabindra Smriti (S) Vidyaniketan, Hooghly to pay him subsistence allowance according to his scale of pay, and by taking into consideration the question of his entitlement to get increments. He is also seeking an ordering directing the authority of the institute to compensate him for the financial loss regarding life insurance policy which he was compelled to surrender. ( 2 ) REGARDING the question of compensation for surrendering the life insurance policy, the petitioner, appearing in person, submits that though details of the loss have not been given by him in the writ petition, if necessary, he will be in a position to produce the relevant documents. In view of the apex Court decision dated August 2nd, 2006, I am not inclined to adjourn the hearing of the matter for any reason whatsoever. This Court was directed to dispose of the writ petition within three months from August 2nd, 2006. Since the prayer for compensation is not supported by relevant facts and materials, I do not see any reason to examine it. ( 3 ) AS to the question of paying subsistence allowance, there is no dispute that the petitioner was suspended with effect from September 27th, 2002. At that date he was working in the institute as an assistant teacher. The institute is a government sponsored institute. Its counsel submits that his client has no knowledge whether any statutory or other rules will govern the case of suspension of the petitioner. The petitioner contends that since the question of payment of subsistence allowance is not governed by any rules, the authority of the institute is under the obligation to pay full salaries and allowances to him. ( 4 ) COUNSEL for the institute argues that in the absence of any rules governing the case of suspension of the petitioner, the Management of recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 (they were made under the West Bengal Board of Secondary Education act, 1963), shall apply. I do not find any substance in the submission. Those rules and their provisions do not apply to a sponsored institute. They have not been adopted by the institute or by the appropriate authority. I do not find any substance in the submission. Those rules and their provisions do not apply to a sponsored institute. They have not been adopted by the institute or by the appropriate authority. Simply because the case of the petitioner is not governed by any rules, the institute is not empowered to apply the 1969 management rules which were made for the purposes mentioned therein. ( 5 ) COUNSEL for the institute has prayed for adjournment so that his client may make further inquiry for ascertaining whether the case of the petitioner will be governed by any rules. I pointed out to him that not only the suspension order was made as back as September 27th, 2002, but the apex Court also directed this Court to dispose of the writ petition within three months from August 2nd, 2006. No acceptable explanation has been given to me why hearing of the matter should be adjourned. In my opinion, on the facts of the case, and having regard to the specific direction of the apex Court, no adjournment should be granted to any of the parties. ( 6 ) IT is curious that the institute issued the suspension order without ascertaining whether it was to be issued in exercise of any power conferred by any rules. I think the institute has not been taking a consistent stand in the matter. Today it is seeking adjournment on the ground that it needs time to ascertain whether the case will be governed by any rules. But the fact remains that in the previous writ petition of the petitioner, proceedings in connection wherewith were taken by the parties upto the Apex Court, the institute specifically relied on its inherent power to suspend the petitioner. Before the Apex Court it relied on the decision in Ram Lakhan and Ors. v. The presiding Officer and Ors. , (2000)10 SCC 2001. Hence I am unable to say that at this distance of time the institute is making a bonafide prayer for adjournment. ( 7 ) ITS counsel has suggested that the State Government should be directed to say whether the case of the petitioner will be governed by any rules. I do not find any reason to go by the suggestion. As the employer, the institute decided to suspend the petitioner, and hence in exercise of its inherent power issued the order of suspension. I do not find any reason to go by the suggestion. As the employer, the institute decided to suspend the petitioner, and hence in exercise of its inherent power issued the order of suspension. It leads to the reasonable conclusion that the institute was fully aware of the fact that the case of the petitioner would not be governed by any rules empowering it to suspend, or making provisions for payment of subsistence allowance at any rate. ( 8 ) THE question is at what rate the subsistence allowance should be paid. Once again counsel for the institute has referred me to the 1969 management rules by saying that in view of provisions in Rule 23 of the management of Sponsored Institutions (Secondary) Rules, 1972, Rule 28 (9)of the 1969 management rules should be followed for paying subsistence allowance to the petitioner. I am unable to accept the contention. In Rule 23 of the 1972 rules it was specifically mentioned that provisions in Rule 28 (8)of the 1969 management rules would be followed only for imposing minor penalties. What the rules have not specifically said cannot be incorporate in them by implication. If that is done, it will amount to rewriting the provisions of the rules; that is not permissible, and the Court cannot do that. ( 9 ) IT is clear from the provisions of the 1972 rules whereby all sponsored institutions are governed that makers of those rules did not feel it necessary to make provisions for payment of subsistence allowance. By them nothing was said about power of the employer to suspend an employee, except in terms of provisions in Rule 23 (A) that is regarding preventive detention. Thus I think the institute all along rightly proceeded on the basis that in exercise of its inherent power it was empowered to suspend the petitioner, if needed. The suspension order is not the subject matter of the present writ petition ; that it still in force. ( 10 ) AS was held by the Apex Court in R. P. Kapoor v. Union of India and Ors. , AIR 1964 SC 787 , in the absence of rules empowering the employer to suspend his employee, while the employer will be entitled to exercise his inherent power, the employee will be entitled to get full salary and allowances during the period of suspension. , AIR 1964 SC 787 , in the absence of rules empowering the employer to suspend his employee, while the employer will be entitled to exercise his inherent power, the employee will be entitled to get full salary and allowances during the period of suspension. In think we should be guided by that principle, since in the present case the institute suspended the petitioner in exercise of its inherent power and there is no provision in the relevant rules indicating at what rate the petitioner should be paid his subsistence allowance. I therefore hold that the petitioner is entitled to get subsistence allowance at the rate equivalent to full salary and allowances to which he would have been entitled had he remained in employment. ( 11 ) FOR these reasons, I order that the institute shall pay subsistence allowance to the petitioner at the rate equivalent to full salary and allowances to which he would have been entitled had he remained in service. It is clarified that the difference between the payable and the actually paid amounts shall be calculated taking into consideration the increase in salary and allowances to which the petitioner would have been entitled had he remained in service, and that the amount found payable shall be paid to him within four weeks from the date of communication of this order. In my view, no interest should be paid on the amount that may be found payable, since there is nothing to show that the institute withheld the payment mala fide or arbitrarily. Hence I order that no interest shall be paid, and that the parties shall bear their respective costs of the proceedings. The writ petition is allowed to this extend. ( 12 ) COUNSEL for the institute prays for stay of operation of this order. I do not find any reason to make an order of stay. Hence the prayer is refused.