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2009 DIGILAW 522 (CAL)

Maya Shankar Jha v. STATE OF WEST BENGAL

2009-07-20

DIPANKAR DATTA

body2009
Judgment :- (1) The petitioner is an Assistant Teacher of a Secondary School. The Managing Committee of the school initiated disciplinary proceeding against him by issuing charge-sheet. Thereafter, an enquiry was conducted. The petitioner has been found guilty of the charges levelled against him. The Managing Committee accepted the findings of the Enquiry Officer and, thereafter, in terms of Rule 28(8) of the Management Rules, 1969, forwarded the papers to the West Bengal Board of Secondary Education for "first stage approval". (2) The Deputy Secretary (Administration) of the Board vide his Memo dated 9.6.2009 has informed the Secretary of the school to the following effect:- "Sub:-Proposal for approval to initiate Disciplinary Proceedings (1st stage) against Sri Maya Shankar Jha, Assistant Teacher of the School. Sir, In terms of rule Rule 28(8a), 28(8b) and 28(9) (viia) of the Management Rules of W. B.B. S.E. Act, 1969 relating to Disciplinary Proceedings against Teachers and Non-Teaching employees of the recognised Non-Govt. Institutions (Aided and Unaided), I am directed to inform you that proper notice was issued to the concerned persons for appearing before the 176th meeting of the Section 24 Committee of the Board held on 09.04.2009 for hearing and considered the matter referred to above in that said meeting. All of them appeared before the said Committee. The Section 24 Committee of the Board after careful observation of the facts and perusal of the documents resolved that the proposal for approval to initiate Disciplinary Proceedings (1st stage) against Sri Maya Shankar Jha, Assistant Teacher of the school be approved provided there is no contrary order of the Honble Court." (3) This communication is the subject-matter of challenge in the present petition. (4) The point that has been agitated in this petition is that the impugned communication does not reflect the matters that have been considered by the Board. In particular, the grievances which the petitioner had expressed in his representation dated 6.4.2009 addressed to the President of the Section 24 Committee of the Board have not been adverted to at all. (5) Mr. Panja, learned Counsel appearing for the petitioner contends that the impugned communication reflects mechanical action of the Section 24 Committee as it does not record any reason at all for approving the decision of the Managing Committee proposing to take disciplinary action against the petitioner and, accordingly, the same ought to be set aside. (6) Mr. Mukherjee and Mr. Panja, learned Counsel appearing for the petitioner contends that the impugned communication reflects mechanical action of the Section 24 Committee as it does not record any reason at all for approving the decision of the Managing Committee proposing to take disciplinary action against the petitioner and, accordingly, the same ought to be set aside. (6) Mr. Mukherjee and Mr. Bhattacharyya, learned Counsel for the Headmaster and the Secretary of the school respectively, made attempts to support the impugned communication by submitting that since the Board has simply approved the action of the Managing Committee, no further reason was required to be assigned by it. (7) This Court does not agree with the submissions of learned Counsel. In terms of Rule 28 (8) of the said rules, a delinquent teacher has to be given an opportunity of establishing his innocence. That opportunity is extended at the stage the Enquiry Officer conducts enquiry to unearth the truth and also when the disciplinary authority prior to accepting the Enquiry Officers report holding the delinquent guilty grants him opportunity to represent there against. For the purpose of disciplinary proceedings governed by Rule 28(8) of the said rules, once the Enquiry Officer returns findings that the delinquent teacher is guilty of the charges levelled against him and his report is accepted by the Managing Committee of the school, and thereafter approved by the Board, a stage is reached where the authorities arrive at a decision conclusively that the guilt has been established. The only action that is required to be taken further is to decide on the quantum of punishment having regard to the gravity of the offence committed by the delinquent teacher and found to have been proved against him in the duly instituted enquiry. Since the fate of the delinquent teacher, at the first stage of the proceeding, is sealed by the approval granted by the Section 24 Committee of the Board, it is necessary in view of the expanding horizon of "duty to act fairly and reasonably" that the Section 24 Committee ought to assign some reasons though not very elaborately. This is essential because the delinquent teacher must know for sure why the Section 24 Committee of the Board considers the Managing Committee to be correct and not him. This is essential because the delinquent teacher must know for sure why the Section 24 Committee of the Board considers the Managing Committee to be correct and not him. This is also necessary, for, if the order granting approval is challenged before a Court of Law, it must satisfy the conscience of the Court that the Committee had the occasion to consider in the proper perspective whether the findings arrived at by the .Managing Committee that the delinquent teacher is liable to suffer penalty is reasonable or not. (8) Even though the Board while passing order at the first stage may simply approve the decision of the Managing Committee, it cannot in the process avoid the duty of assigning some reason in support of the action proposed to be taken by the Managing Committee of the school. That an order of affirmation is required to be supported by some reason is settled law. Reference in this connection may be made to the decision of the Apex Court in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney and Ors., reported in 2009 (4) SCC 240 . Paragraphs-5 and 7 of the decision being relevant are extracted below:- "51. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact the said decision in Prabhu Dayal Grover case has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary; authority. 7. In the present case, since the appellate authoritys order does not contain any reasons, it does not show any application of mind." (9) In the present case application of mind by the Section 24 Committee is not reflected at all. (10) Mr. 7. In the present case, since the appellate authoritys order does not contain any reasons, it does not show any application of mind." (9) In the present case application of mind by the Section 24 Committee is not reflected at all. (10) Mr. Bose, learned Counsel appearing for the Board, has very fairly submitted that the Board is agreeable to re-consider the issue and pass a fresh reasoned order. The fair stand of the Board is appreciated. (11) The impugned communication dated 9.6.2009 containing the decision of the Section 24 Committee stands set aside. The said Committee shall now re-consider the issue of approval strictly in accordance with law. (12) Needless to observe that the representation of the, petitioner dated 6.4.2009 shall be duly considered at the time it decides whether to grant approval to the decision of the Managing Committee or not. (13) The writ petition stands allowed to the extent indicated above. (14) No opinion is expressed on merits. All the rival claims are kept open to be decided by the Section 24 Committee in terms of this order. (15) There shall be no order as to costs. Urgent xerox certified copy of this order if applied for, be furnished to the parties within 4 days from date of putting in requisites there for.