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2009 DIGILAW 807 (CAL)

Ram Asare Dwivedi v. STATE OF WEST BENGAL

2009-11-17

TAPEN SEN

body2009
Judgment :- (1.) In Paras-30 of W.P. No. 9591 (w) of 2009 and W.P. No. 9593 (W) of 2009, the Petitioners, Ram Asare Dwivedi and Vijay Shankar Dixit have stated that identical impugned letters were issued to the other Writ Petitioner. Similar statement has also been made by Madhu Kant Mishra [Petitioner of W.P. No. 9605 (W) of 2009] in Para-34 of his Writ Petition. Since the points argued in all the three cases and the facts were similar in nature, this Court considered all the three Writ Petitions together and accordingly they are being disposed of by one common Order. (2.) In all these cases the Petitioners have prayed for an Order commanding upon the Respondents to reconstitute the managing committee of the Birla High School situated on 1, Moira Street, Kol- 17 in terms of the provisions of the Delhi School Education Act, 1973 and the Rules framed thereunder or alternatively, in terms of the provisions of the West Bengal Board of Secondary Education Act, 1963 and the Rules framed thereunder. (3.) The Petitioners have also prayed for setting aside the letters dated 5.2.2009, 3.4.2009, the Memorandum dated 23.4.2009 and the letters dated 24.4.2009, 27.4.2009 and 7.5.2009. (4.) In W.P. No. 9593 (W) of 2009 filed by Vijay Shankar Dikshit, the prayer also includes, apart from the aforesaid, the prayer for setting aside similar letters dated 5.2.2009, 3.4.2009, the Memorandum dated 23.4.2009 and the letters dated 24.4.2009, 27.4.2009 and 7.5.2009 as contained in Annexures- P5, P8, P-12, P-13, P-15 and P-17 respectively. (5.) In W.P. No. 9605 (W) of 2009 filed by Madhu Kant Mishra, the prayer similarly includes, apart from the aforesaid, the prayer for setting aside the letters dated 5.2.2009, 3.4,2009, the Memorandum dated 23.4.2009 and the letters dated 24.4.2009,27.4.2009 and 7.5.2009 as contained in Annexures- P5, P8, P-12, P-13, P-15 and P-17 respectively. (6.) All the Writ Petitioners are Assistant Teachers of the Birla High School situated on 1, Moira Street, Kolkata- 700017. (7.) According to the Petitioners, initially the Hindi High School was affiliated to the Calcutta University but subsequently it stood affiliated with the Central Board of Secondary Education. Sometime in the year 1998, the name of the school became Birla High School and it is now affiliated with the Central Board of Secondary Education, New Delhi. (7.) According to the Petitioners, initially the Hindi High School was affiliated to the Calcutta University but subsequently it stood affiliated with the Central Board of Secondary Education. Sometime in the year 1998, the name of the school became Birla High School and it is now affiliated with the Central Board of Secondary Education, New Delhi. (8.) According to the Petitioners, they have been conferred various Teachers Award and Certificates of Merit plus cash awards. According to the Petitioners, the Secretary of the said school as well as the Principal thereof "invented a design to remove permanent Assistant Teachers" and appoint fresh teachers in their place and as a sequel thereto, a letter dated 5.2.2009 (Annexure- P5) was served upon them asking them to reflect upon the assessments of the last five years which were enclosed therein and to explain within two days as to how they could justify their continuance in the services of the School. (9.) The Petitioners replied expressing shock and assured sincerity and devotion for the remaining part of their tenure but they protested to the assessments made and expressed their feelings accordingly. (10.) Thereafter, the some of the Petitioners received letters dated 18.2.2009, 23.2.2009 and 4.3.2009 issued by the Principal asking them to meet the Consultant of the Vidya Mandir Society on different dates mentioned therein. It is submitted that no reasons were given as to why they were asked to meet the said Consultant who, according to the Petitioners had no legal authority to deal in any way with an Assistant Teacher of the School. The Petitioners have submitted that such a direction was therefore, wholly without jurisdiction. The Petitioner, Dwivedi has stated in para-17 that when he met the Respondent No. 10, he was asked to explain the words and sentences used in the letter dated 9.2.2009 which was addressed to the Respondent No. 7 and he was also asked as to whether the said letter was drafted by him or whether he had taken the assistance of other persons. (11.) Thereafter, the 2nd impugned letter dated 3.4.2009 was issued informing the Petitioners that the management, on a careful consideration of all aspects, had decided to hold an enquiry in accordance with the provisions of the Service Rules for "likely" violations of the said Rules and accordingly, the Petitioners were informed that further revision of their emoluments as they stood on 5.2.2009 were being kept in abeyance. (12.) Thereafter, the Petitioners replied by their letters dated 13.4.2009 wherein they raised various issues and submitted that the charges were vague and that they were not given sufficient opportunity and that the management had already decided to remove them from the School and therefore, the proposed enquiry was a farce. They also stated that the School was a recognized Higher Secondary School which had been affiliated to the Central Board of Secondary Education, New Delhi after obtaining a "no-objection" from the State of West Bengal and therefore, their services were governed under the laws relating to teachers of Secondary Schools in the State of West Bengal as well as the bye-laws governing affiliation framed by the Central Board of Secondary Education, New Delhi. Consequently, the Petitioners prayed that the said letters dated 3.4.2009 be withdrawn. (13.) Thereafter, a Memorandum dated 20.4.2009 (Annexure-P10) was issued by the Secretary of the School enclosing therewith the substance of imputation of misconduct or misbehavior in support of each articles of charges. (14.) Thereafter, on 23.4.2009, the earlier Memorandum dated 20.4.2009 (AnnexureP10) was superseded and a fresh Memorandum was issued dated 23.4.2009 wherein once again, the substance of imputation of misconduct or misbehavior in support of each articles of charges were included. This is the 3rd impugned document. (15.) Thereafter, on 24.4.2009, the Secretary informed the Petitioners that in partial modification of the letter dated 3.4.2009, it was decided that pending final disposal of the enquiry, revision, if any, of their pay structures as they stood on 5.2.2009, were being kept in abeyance. This has also been challenged by the Petitioner. (16.) Thereafter, the Petitioners replied to the said Memorandum of Charges by their letters dated 25.4.2009/27.4.2009 and received two letters dated 27.4.2009 issued by the Secretary and addressed to the Respondent Nos. 9 and 11 appointing them respectively as the Presenting Officer and Enquiry Officer. This has also been challenged by the Petitioner. (16.) Thereafter, the Petitioners replied to the said Memorandum of Charges by their letters dated 25.4.2009/27.4.2009 and received two letters dated 27.4.2009 issued by the Secretary and addressed to the Respondent Nos. 9 and 11 appointing them respectively as the Presenting Officer and Enquiry Officer. Thereafter, the Petitioners wrote letters dated 1.5.2009 demanding justice but on 7.5.2009, they received a letter issued by the Enquiry Officer informing them that the enquiry had been fixed on 16th June, 2009 in the office of the Respondent No.10 and the Petitioners were asked to bring all documents and witnesses in support of their defence. (17.) The Petitioners thereafter sent a letter dated 9.5.2009 requesting the concerned Respondents to withdraw the aforesaid impugned letters/charge-sheet. (18.) A preliminary objection with regard to the maintainability of the Writ Petition was raised both by Mr. Sumit Kr. Panja appearing for the Respondent Nos. 3, 4, 7 and 8 as well as by Mr. U.S. Menon appearing for the Respondent No. 2. They have both raised the point that the Writ Petition is directed against the acts of an entirely private organization being the Birla High School and therefore, a Writ Petition is not maintainable. (19.) Learned Counsel for the Petitioner relied heavily upon the judgment of the Honble Supreme Court passed in the case of Unni Krishnan, J. P. and Ors. etc. v. State of Andhra Pradesh and Ors. reported in AIR 1993 SC 2178 . He relied upon paras-34,82,83 and 84 of the said judgment and submitted that in view of the ratio decided in the said judgment, this Court cannot dismiss the Writ Petitions on the ground that the actions complained of are of a Private body. He submits that in terms of Article 226 of the Constitution of India, the High Court has enough powers to extend the scope of judicial review not only to instrumentalities of the State but also to any other person or a body performing public duty. (20.) This Court is not inclined to accept the submissions of the learned Counsel for the Petitioners for the simple reason that the acts complained of are not acts which pertain to actions done by the School in the matter pertaining to the public or in the domain of the public. (20.) This Court is not inclined to accept the submissions of the learned Counsel for the Petitioners for the simple reason that the acts complained of are not acts which pertain to actions done by the School in the matter pertaining to the public or in the domain of the public. On the contrary, the acts complained of are pure and simple acts of a private employer which has chosen to proceed against the petitioners departmentally. No public element is involved in such a dispute and therefore by no stretch of imagination, it can be said that the Respondents have acted in a manner that has the effect of entering into the public domain. Consequently the judgment cited by the learned Counsel in Unni Krishnan case cannot be made applicable. (21.) Under such circumstances this Court holds that the Writ Petitions against Birla High School in the matter pertaining to departmental action initiated by them against the Petitioners are not maintainable. Consequently this Court upholds the preliminary objection raised by the learned Counsel appearing the Respondents and dismisses all the three Writ Petitions. (22.) However, since the writ petitions are dismissed only on the ground of maintainability, it is made clear that this order of dismissal will not, in any way, prejudice the case of the petitioners in the event they choose to move any other appropriate alternative Forum. (23.) With the aforesaid observations, the writ petitions are dismissed. No Order as to costs. (24.) Upon appropriate Application(s) being made, urgent Xeroxed Certified copy of this Judgment, may be given/issued expeditiously subject to usual terms and conditions. WBLR-72