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2010 DIGILAW 249 (CAL)

Sambhu Nath Mandi v. STATE OF WEST BENGAL

2010-03-08

J.K.BISWAS

body2010
JUDGMENT 1. THE judgment of the Court was as follows:- THE petitioner in this Article 226 petition dated November 18, 2008 is seeking a mandamus commanding the respondent's to permit him to attend Dudhkundi Primary School in Sankrail of the District Paschim Medinipur and work as assistant teacher, and to pay him salary arrears from August 13, 2003. 2. THE then Midnapur District Primary School Council issued an order, Annexure P-1 at p. 16, appointing the petitioner as a primary school teacher. A copy of the order was forwarded to him by a memo dated January 25, 2000. In Sankrail Police Station an FIR No. 37/02 dated December 3, 2002, Annexure P-2 at p.17, was registered under Sections 363/366/366A/376/120B of the Indian Penal Code. The petitioner was named as the accused. As a result, he was arrested and detained in custody. Ultimately, he was released on bail on August 12, 2003 (para.6). Under the circumstances, the Chairman, Paschim. Medinipur District Primary School Council issued an order dated August 26, 2003, Annexure P-4 at p.26, that he would be deemed to have been suspended with effect from June 23, 2003. 3. THE petitioner's case is that he cannot be kept under suspension for an indefinite period. According to counsel, after the petitioner's release on bail the deemed suspension could not continue; and, in any case, the Council was under an obligation to review the situation from time to time of its own accord. His submission is that it was not necessary for the petitioner to invite the Council to review the question whether it was necessary to continue the petitioner's deemed suspension. 4. RELYING on the Division Bench decision in Birbhum District Primary School Council and Anr. v. Md. Mokhtar Hossain and. Ors., 2009(1) CHN 476 , counsel for the Council has submitted that the length of a deemed suspension does not make the suspension bad in law. Admittedly, both the Council and the petitioner are subject to the West Bengal Primary Education (Conduct of Service of Teachers of Primary Schools) Rules, 2001. Rule 7(2) of the rules provides as follows:- "(2). Ors., 2009(1) CHN 476 , counsel for the Council has submitted that the length of a deemed suspension does not make the suspension bad in law. Admittedly, both the Council and the petitioner are subject to the West Bengal Primary Education (Conduct of Service of Teachers of Primary Schools) Rules, 2001. Rule 7(2) of the rules provides as follows:- "(2). Where a teacher detained in custody for a period of exceeding 48 hours on a criminal charge or otherwise, he shall be deemed to have been suspended by an order of the appointing authority with effect from the date of his detention and shall remain under suspension until further orders. A teacher who is undergoing a sentence of imprisonment shall also be dealt with in the same manner, pending a decision as to the disciplinary action to be taken against the teacher." 5. THE questions are (i) whether on the petitioner's release on bail his deemed suspension under Rule 7(2) lost its force entitling him to attend the institute and work there as a teacher; (ii) whether the long- term of the suspension has made the suspension bad in law and hence liable to be quashed; and (iii) whether even in the absence of any application submitted by the petitioner, the Council was under an obligation to review the matter for deciding the need for continuing the deemed suspension. 6. THERE is nothing to say that once the petitioner was released on bail, the deemed suspension lost its force and significance at once creating his legal right to attend the institute and work there as a teacher. The provisions of Rule 7, dealing with suspension, do not make such a provision. An interpretation such as this, if given to the provisions of Rule 7, will amount to re-writing the provisions and that is not permissible in law. Mere length of the deemed suspension does not make the suspension bad in law and entitle the teacher to attend the institute and work there as a teacher. This proposition is supported by the Division Bench decision relied on. 7. I am unable to accept the argument that the Council was under an obligation to review the need for continuation of the deemed suspension of its own accord. The suspension was by operation of law, and not by an action of the Council, the appointing authority. This proposition is supported by the Division Bench decision relied on. 7. I am unable to accept the argument that the Council was under an obligation to review the need for continuation of the deemed suspension of its own accord. The suspension was by operation of law, and not by an action of the Council, the appointing authority. For the deemed suspension to take effect an order of the appointing authority was not necessary. 8. IT was not for the appointing authority to go on making investigation from time to time for ascertaining whether the deemed suspension should continue. IT would have incurred an obligation to review only if the petitioner wanted it to review on the facts stated in an application submitted for the purpose. It does not mean that the Council did not possess the power to issue further order, even in the absence of any application from the petitioner. But if the petitioner wanted revocation of the deemed suspension, then it was for him to submit appropriate application and seek necessary order; and in such case the Council would have incurred an obligation to issue further order. 9. HERE the admitted position is that the petitioner never invited the Council to review whether his deemed suspension should continue. Hence there was no question of any failure on the part of the Council in the discharge of its statutory obligation. The petitioner is not entitled to any relief. For these reasons, the petition is dismissed making it clear that nothing herein shall prevent the petitioner from submitting appropriate application requesting the Council to review the question whether his deemed suspension is to continue; and that if such an application is filed, then the Council will be free to deal with it in accordance with law. No costs.