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2010 DIGILAW 506 (CAL)

Swati Purkait Si v. STATE OF WEST BENGAL

2010-05-07

J.K.BISWAS

body2010
JUDGMENT 1. THE seven petitioners in this Article 226 petition dated December 18, 2008 are some members of the teaching staff of Singur Golap Mohini Mallick Girls' High School in Singur of the district Hooghly. They are questioning the oral directions of the secretary of the institute to obey the dress code made by its managing committee specifying white sari for the teachers at work. 2. THE petitioners objected to the dress code and the steps taken for its enforcement on the grounds that the whole thing has been sought to be imposed upon them unauthorisedly and illegally. In the opposition dated August 31, 2009 affirmed by the secretary of the committee the decision to make the dress code and enforce it has been justified citing tradition and acceptance by the other women teachers in the institute. Mr. Bari, counsel for the petitioners, has argued as follows. The statutory provisions regarding dress code having been omitted from the regulation concerned and in the face of an advisory letter of the Director of School Education dated August 16, 2004, Annexure P2 at p.28, the managing committee of the institute could not make any dress code or the women teachers working therein and enforce it. 3. MR. Samanta, counsel for the State, has submitted that in the absence of any statutory dress code the managing committee of the institute was not empowered and authorised to impose a dress code made by it. 4. MR. Bhattacharyya, counsel for the managing committee and the headmistress of the institute, has submitted as follows. In view of the long tradition of wearing white sari at work followed by the women teachers in the institute, the committee has done nothing wrong in reiterating the dress code and taking steps for its enforcement for maintaining an ideal academic atmosphere in the institute. Dress code, followed by monks and nuns as well, is not something unheard of. Things stated in the advisory letter of the director also justify the decision of the committee. Man was not born with dress of colours and designs that he is wearing today, he decided to dress for fuller enjoyment of his life, chose materials dictated by his faculties for making his dress. He followed the dictates of his faculties, not of the laws that he made once he became a member of the society. 5. Man was not born with dress of colours and designs that he is wearing today, he decided to dress for fuller enjoyment of his life, chose materials dictated by his faculties for making his dress. He followed the dictates of his faculties, not of the laws that he made once he became a member of the society. 5. IN his society also as a member thereof he participated in the process of making of the decision what dress he would wear. His right to dress and thus to enjoy his life, an aspect of his right to life, a basic human right and also a fundamental right, he sacrificed in the larger interest of the society to the extent the laws made by the society put the limitations. 6. THUS came into existence the concept of dress code, a compilation of rules about the dress one, bound by them, must wear at work. By voluntarily becoming a member of associations, societies, religious groups, clubs, etc. he gave to himself various dress codes in the making of which he participated. A dress code has never been imposed. Man decided to engage his fellow being for doing his work on terms and conditions fixed by him; he also became interested in working under his fellow being. Thus the employer-employee relationship was born and developed. The employer enjoyed the right to specify the terms and conditions of employment and the employee was free to decide whether to work accepting them. 7. AND then the welfare State started employing for the people of the State, and for the purpose it made laws specifying the terms and conditions of employment; and in many of them dress code was made. A dress code is made on the basis of the rationale behind its making, not the whims of the employer. Dress codes thus became a part of the terms and conditions of many services. 8. HENCE the principal question in this case is whether the managing committee of the institute is empowered to make a dress code for the women teachers in the institute, and the incidental question is if the managing committee has no statutory power to make a dress code, then whether in the name of tradition it can make a code specifying white sari for the women teachers at work and enforce it. The institute is one recognized by the West Bengal Board of Secondary Education under provisions of the West Bengal Board of Secondary Education Act, 1963. The grant-in-aid rules of the State Government are applicable to it and as such it gets 100% grant-in-aid from the Government. 9. SECTION 27 of the West Bengal Board of Secondary Education Act, 1963 empowers the board to make regulations with respect to conduct and discipline of teachers and non-teaching staff of institutions recognised by it. 10. SECTION 45 of the Act empowers the State Government to make rules for the composition, powers and functions of the managing committees of the institutions. In exercise of such power the Government has made the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969. The managing committees of all the institutes such as the one in which the petitioners work are constituted according to provisions of the rules for a specified term. The provisions of Rule 28 empower a committee to appoint teachers on the recommendation of the West Bengal Regional School Service Commission and to take disciplinary actions against the members of the staff. 11. NO provision of the Act, or any rules or regulations made thereunder, empowers the managing committee of an aided institute to determine the terms and conditions of service of the members of the staff or to lay down the conduct and discipline rules for them. To be precise no provision of law empowers the managing committee of the institute in question to make a dress code for the members of the teaching staff of the institute. 12. IN exercise of power conferred on it by section 27 of the West Bengal Board of Secondary Education Act, 1963 the board made the West Bengal Board of Secondary Education (Conduct and Discipline of Teachers and Non- teaching Staff) Regulations, 2004. Regulation 10, dealing with dress code, provided as follows: "10. Dress Code- Every teacher and non-teaching staff shall abide by the dress code, if any, of the Institution and should refrain from extravagance and flamboyance in dress, or display of wealth in the Institution and shall be respectful to local sentiment in such matters." By a notification No.S/120 dated May 30, 2005 certain provisions of the regulations were amended, and reg. 10 was wholly deleted. 10 was wholly deleted. It is thus evident that the dress code concept, finding a statutory recognition in a notification dated January 14, 2005, published in the official gazette on January 20, 2005, and deleted from the regulations within around five months, did not get a life even to dress itself. 13. THE makers of the law in their wisdom, it seems, found no rationale behind the making of a dress code for the members of the staff of the recognized aided institutes. It is evident that the only authority that was statutorily empowered to make the dress code was of the view that making of a dress code would not be proper. This situation left the members of the staff of the recognized aided institutes to choose their own dress at work. 14. A class room in an institute is not such a work place or work room that should need a specified dress to get best out of the work force. It is beyond comprehension of a person of reasonable prudence how a specified dress used especially by the women teachers at work will create an ideal academic atmosphere. The concept of decency, pressed into service, is totally misplaced. As is said while beauty is in the eye of the beholder, all seems yellow to the jaundiced eye. Decency does not lie in clothes; it is in the eye of the beholder. Picasso's "Green Leaves and Bust" has recently gone under the hammer for around L 70 million. 15. WHETHER a woman teacher posing herself in any manner commits a breach of discipline and hence a misconduct is absolutely another matter. But I am unable to see how it can be said that unless following the long tradition, as claimed by the managing committee of the institute, the petitioners wear white sari at work they will be jeopardizing the ideal academic atmosphere in the institute. 16. THE managing committees' dress code has no sanction of law. Tradition cannot be a substitute for the law. The petitioners have not voluntarily taken membership of the institute. They have rather accepted employment on notified statutory terms and conditions of employment. The managing committee possesses no power to determine their terms and conditions of service or to introduce a new condition of service either unilaterally or with notice of change. Tradition cannot be a substitute for the law. The petitioners have not voluntarily taken membership of the institute. They have rather accepted employment on notified statutory terms and conditions of employment. The managing committee possesses no power to determine their terms and conditions of service or to introduce a new condition of service either unilaterally or with notice of change. The decision and the steps to enforce the dress code, taken by the managing committee, evidently based on whims and authoritarian notion of the members of the committee; are unauthorized and illegal. 17. FOR these reasons, I allow the petition and order that the managing committee of the institute shall not enforce any extra legal dress code and ask the women teachers to wear any specified dress at work. No costs. Writ petition allowed.