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2011 DIGILAW 1461 (CAL)

Md. Abu Tahir Hossain v. State of West Bengal

2011-11-30

HARISH TANDON

body2011
The judgment of the Court was as follows:- The petitioner has challenged the dismissal order dated 13.10.2009 passed by the respondent No 4. 2. The facts which lead to an order of dismissal are that the petitioner was implicated in a criminal case on 7.4.2007 and was taken in custody till he was granted bail by this Court on 20.6.2007, Rule 7(2) of West Bengal Primary Education (Conduct of Service of Teacher of Primary Schools) Rules, 2001 provides that a teacher shall be deemed to have been suspended if he has been detained in police custody for a period of exceeding 48 hours. Subsequently, the order of suspension was issued on 22.5.2007 but the respondent authorities did not take any further step for initiating any disciplinary proceeding against the petitioner. Even after being enlarged on bail the authorities did not revoke the suspension order nor contemplated to initiate disciplinary proceeding, the petitioner moved before this Court in W.P. No. 6263 (W) of 2008, being the first round of litigation, for revocation of the suspension order. The said writ petition was disposed of on 28.4.2008 with a direction upon the respondent No. 5 to serve the copy of the charge-sheet within a period of fortnight from the date of communication of the order by fixing the date of furnishing the reply. It was further observed that in the event the charge-sheet is not issued then the order of suspension will stand revoked but the disciplinary proceeding may continue and if the charge-sheet is issued, the disciplinary proceeding should be concluded within three months, in default, the suspension order will stand automatically vacated. 3. Pursuant to the said order a charge-sheet was issued on 12.5.2008 and the charges as would be evident from the said charge-sheet runs thus:- CHARGES Negligence in duties: You, negligent to perform your statutory duties as school teacher Unauthorized absence in the school duties : You, unauthorized absent to the school duties on and from 22.5.2006 to 9.6.2006 and 12.6.2006 to 6.4.2007 without any permission or initiation Tampering of the Teacher's Attendance Register: You, forcibly put signature in the Teacher's Attendance Register erasing the "Absent" word without being actually present defying the order of the Head Teacher. Insubordination to the authority: You, directed to appear before the Chairman, Murshidabad District Primary School Council on 31.10.2006 and again on 20.11.2006 but you did not bothered to comply with the authority's order although you have received the notice in due time. Attending school in drunken condition: You, habit of attending school in drunken condition and not mend yourself after several warning. Illegal activities: You, illegally taken huge amount money from many person of the school area alluring them to give the job of Assistant Primary Teacher and misappropriated the all money. Entangled as accused in the Raninagar Police Station Case No. 61/07 dated 7.4.2007 under Sections 307/468/471/420/406 IPC the matter directly related with the Council: You, entangled as accused in the Criminal Case being No 61/07 dated 7.4.2007 under Sections 307/468/471/420/406 IPC for illegally taking Rs. 2,12,650/- from the complaint Ramjan Ali of village Sahebnagar giving him the false assurance of appointment as Assistant Primary Teacher and also gave him a forged appointment letter of the Primary School Council. 4. It is pertinent to record that it is a specific case of the petitioner that no document was supplied to the petitioner along with the said charge-sheet which forms the basis of those charges. 5. However a notice dated 24.6.2008 was issued by the enquiring authority informing that the enquiry should be held on 30.6.2008 in the office of the respondent No.5. 6. According to the petitioner, he attended and participated in the enquiry proceeding on 30.6.2008 but was denied an opportunity of leading evidence and cross-examining the other witnesses. Ultimately, the order of dismissal was issued on 14.8.2008 by the respondent No.4. This resulted into a second round of litigation. 7. Assailing the said dismissal order dated 14.8.2008 the petitioner filed another writ petition being W. P. No. 22367(W) of 2008. It is specifically contended that the said order of dismissal is passed in gross violation of the principle of natural justice as no copy of the enquiry report was ever served upon the petitioner nor he was given an opportunity to give reply to the proposed punishment in absence of any show-cause notice or an opportunity to file representation and reply against the imposition of proposed punishment. The said writ petition was allowed by quashing and setting aside the dismissal order dated 14.8.2008. The said writ petition was allowed by quashing and setting aside the dismissal order dated 14.8.2008. It would be profitable to quote the said order in verbatim:- "The petitioner is an Assistant Teacher of a primary school under the jurisdiction of the District Primary School Council, Murshidabd. He is aggrieved by the order of dismissal passed by the Council against him, dated 14.8.2008, following disciplinary proceedings initiated against him. It is not in dispute that after the Enquiry Officer submitted his report finding the petitioner guilty of the charges levelled against him, the same was not furnished to the petitioner and consequently, he did not have the occasion to represent there against. This action of the Council is in the teeth of the Constitution Bench decision of the Apex Court reported in AIR 1994 SC 1074 wherein it has been held that even if the rules governing disciplinary proceedings do not contemplate furnishing of enquiry report to the charge sheeted employee, the same must be furnished in consonance with natural justice principles. On this ground alone, the order of dismissal is liable to be set aside. There is another groaned for which this Court is satisfied that the order of dismissal cannot be sustained in law. Disciplinary proceedings against a primary school teacher are governed by the West Bengal Primary Education (Conduct of Service of Teachers of Primary Schools) Rules, 2001. Rule 9 of the said Rules provides the procedure for imposing penalty. Sub-rule (2) thereof lays down that "no order imposing any of the penalties provided in these rules shall be made without serving a 'show-cause notice' to the teacher and giving him an opportunity of being heard." In the present case, no second show-cause notice was admittedly issued by the Council against the petitioner calling upon him to show cause as to why he should not be dismissed from service. This is an infirmity which goes to the root of the matter and renders the order of dismissal vitiated. Accordingly, the order of stands set aside. The Court shall now proceed to furnish the petitioner copy of the report of the enquiry officer. The petitioner shall have fortnight's time from date of receipt of such report to represent there against. Upon consideration of the petitioner's representation together with other materials-on-record, the Council shall take an appropriate decision. Accordingly, the order of stands set aside. The Court shall now proceed to furnish the petitioner copy of the report of the enquiry officer. The petitioner shall have fortnight's time from date of receipt of such report to represent there against. Upon consideration of the petitioner's representation together with other materials-on-record, the Council shall take an appropriate decision. In the event the Council is satisfied that the petitioner was not given adequate and reasonable opportunity of defending himself in the enquiry, the council may direct de novo enquiry to be conducted against the petitioner. However, if the contentions raised by the petitioner in his representation against the enquiry report are not fund to be tenable, the Council shall have full liberty to agree with the Entry Officer and to hold that the charges against the petitioner stand established. However, in such case, some reason for agreement must be assigned. If the council proposes to inflict any punishment on the petitioner, a second show-cause notice shall be issued in terms of Rule 9(2) of the said Rules calling upon the petitioner to furnish explanation as to why the punishment proposed shall not be inflicted on him. The petitioner shall thereafter be heard and then an appropriate reasoned order shall be passed. The petitioner shall co-operate with the Council. In the event the petitioner does not file his representation or chooses not to appear in person before the Council; as and when called for, the Council shall be at liberty to proceed against him ex parte. The aforesaid exercise shall be completed by the council as early as possible but positively within six weeks from date of service of a copy of this order. Since the disciplinary proceedings have been interdicted by this Court on the ground of violation of principles of natural justice, the petitioner shall not be entitled to an order of reinstatement in service but the order of suspension shall revive and he shall be continued under suspension till such time final order is passed in connection with the disciplinary proceedings. The petitioner shall be entitled to arrear and current subsistence allowance in terms of the applicable rules. The petitioner shall be entitled to arrear and current subsistence allowance in terms of the applicable rules. Be it placed on record that this Court has not decided the other contentions raised on behalf of the petitioner to the effect that he was not furnished all the documents on which the Enquiry Officer relied on while writing his report as well as non-grant of opportunity to him to adduce evidence in his defence. It shall be open to the petitioner to raise all points that are available to him in law in his representation against the enquiry report and it is expected that the Council shall consider the same in the proper perspective. With these directions, the writ stands allowed to the extent mentioned above. There shall be no order as to costs. Let a photocopy of this order be issued to the learned Counsel for the parties, duly countersigned by the Assistant Registrar (Court) on the usual undertaking." 8. Pursuant to the said order the respondent No.4 served a copy of the report of the enquiry officer along with all documents relied by the said authority and invited the representation from the petitioner within fortnight from the date of the receipt of the said report on 4.8.2009. It is alleged that the reply to the said enquiry report, in the form of representation, was sent by the petitioner on 11.8.2009 which was first served in the office of the disciplinary authority on same day but since no receipt was furnished, the petitioner sent the said representation by registered post which was received on 19.8.2009. It is a specific case of the petitioner in the said representation that no opportunity was given to the petitioner to cross-examine the witnesses and the petitioner was not confronted with the documents relied upon by the enquiring authority. Thereafter, the petitioner was served with a second show-cause notice dated 26.8.2009 which was duly replied by the petitioner on 3.9.2009. The disciplinary authority fixed a date of hearing on 7.9.2009 and thereafter issued the impugned dismissal order which gave rise to the filing of the instant writ petition being the third round of litigation. 9. Mr. Sougata Bhattacharya, learned Advocate appearing for the petitioner submits that the dismissal order impugned in this writ petition is the replica of the earlier dismissal order which was quashed and set aside by this Court. 9. Mr. Sougata Bhattacharya, learned Advocate appearing for the petitioner submits that the dismissal order impugned in this writ petition is the replica of the earlier dismissal order which was quashed and set aside by this Court. He further submits that the authorities have proceeded with closed mind and have not made any independent finding. He strenuously argues that in an earlier order passed by this Court, the disciplinary authority was also directed to consider whether an opportunity of hearing was given to the petitioner by the enquiring authority or not which has not been considered by the disciplinary authority. He submits that the enquiry officer did not serve the relevant document and have acted in violation of the principle of natural justice as has been held by the Apex Court in case of Union of India v. Md. Ramzan Khan, reported in AIR 1991 SC 471 . He further submits that the disciplinary authority has not recorded any independent finding and/or reason for inflicting the punishment of dismissal and relies upon a Division Bench judgment of this Court in case of Arun Kumar Hait v. State of West Bengal & Ors., reported in 1999 (1) CHN 521 . 10. Mrs. Santi Das, learned Advocate appearing for the respondents submits that all the documents which have been relied upon by the enquiring authority was served upon the petitioner in pursuance of an order of this Court along with the enquiry report and as such there is no violation of principle of natural justice. She submits that there is alternate remedy by way of appeal provided under the statutory rules and this Court under Article 226 of the Constitution of India should not interfere when an efficacious alternative remedy is available. Lastly, she submits that the case made out by the petitioner does not warrant the interference of this Court in writ jurisdiction. 11. In reply the learned Advocate appearing for the petitioner submits that although a provision of appeal is incorporated in the statutory rules but the Government has not appointed any appellate authority. Thus, he submits that the delinquent cannot be remediless and the writ Court should adjudicate the matter. He submits that certain documents which is apparently relied upon by the enquiring authority has not been submitted to the petitioner at the time of furnishing the enquiry report. 12. Thus, he submits that the delinquent cannot be remediless and the writ Court should adjudicate the matter. He submits that certain documents which is apparently relied upon by the enquiring authority has not been submitted to the petitioner at the time of furnishing the enquiry report. 12. Having considered the respective submissions, the writ Court should not usurp the power of the appellate authority by peeling off the evidence as is required to be done by the fact finding authorities. It is settled law that the writ Court exercises the power of judicial review and should not transgress such power unless the decision complained of does not stand on the anvil of principle of natural justice, fundamental rights, gross violation of statutory provisions etc. 13. On the above legal parameters let me examine whether the case made out by the petitioner falls within the above categories or not. Admittedly, there is a statutory rule i.e. West Bengal Primary Education (Conduct of Service of Teacher of Primary Schools) Rules, 2001 (hereinafter referred as the Service Conduct Rules) which was framed in exercise of power conferred under Section 106 and Section 60 of the West Bengal Primary Education Act, 1973. 14. Rule 7(2) of the said Service Conduct Rules provides that where a teacher is detained in custody for period exceeding 48 hours on a criminal charges 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 suspended until further orders. 15. Rule 9 provides that the disciplinary authority shall appoint an enquiring authority who after completion of the enquiry shall prepare a report containing various documents viz. article of charges and statement of imputation of misconduct or misbehaviour, defence of a teacher in respect of each of article of charge, assessment of evidence for each article of charge and the finding of the enquiring authority on each article of charge. Rule 8 provides the penalties which can be imposed on a teacher but the same shall be subject to the compliance of Rule 10 of the said Service Conduct Rules. 16. There is no dispute that the enquiring authority submitted the report on article of charges to the disciplinary authority who without giving any opportunity passed the first order of dismissal. 16. There is no dispute that the enquiring authority submitted the report on article of charges to the disciplinary authority who without giving any opportunity passed the first order of dismissal. While quashing the said order of dismissal this Court finds that there has been a gross violation of principle of natural justice and directed the respondent No.4 to furnish the copy of the report of the enquiry officer to the petitioner who within fortnight from the date of receipt shall file the representation. The disciplinary authority was directed to consider the said representation whether an opportunity was given to the petitioner by the enquiring authority or not and if it is found no opportunity was given the disciplinary authority may direct de novo enquiry to be conducted. It is further noticed in the said order that the disciplinary authority shall also decide whether all the documents has been furnished by the enquiry officer which he relied upon at the time of preparation of his report or whether any opportunity was given to the petitioner to adduce evidence or not. 17. It is not in dispute that in pursuance of the said order the enquiry report along with some documents have been served upon the petitioner on 4.8.2009 inviting the representation within fortnight from the date of the receipt thereof. According to the petitioner the copy of the representation dated 11.8.2009 was served in the office of the disciplinary authority on the same day but in absence of any acknowledgement of the receipt being supplied, the same was sent by Registered Post which was received on 19.8.2009. The case made out in the said representation is that due to the detention in custody from 7.4.2007 till 20.6.2007, the reply to the show-cause notice dated 30th March, 2007 could not be given. Against the first charge i.e. negligence of duties it is contended that no details have been given and in absence thereof it is not possible to answer. The second charge i.e. unauthorized absence, has been replied that the absence was due to the illness of the child and to that effect medical certificate was annexed. Additionally it is further contended that because of the continuous harassment of the police authorities against the alleged complaint by the erstwhile wife and subsequently by one Ramzan Ali he could not attend. Additionally it is further contended that because of the continuous harassment of the police authorities against the alleged complaint by the erstwhile wife and subsequently by one Ramzan Ali he could not attend. Against third charge i.e. tampering of attendance register, it is a specific case of the petitioner that he never tampered the said register and the enquiring authority has proceed to hold out the petitioner guilty in absence of the attendance register which was not brought before the enquiring authority. 18. So far as the charge of collection of money on the false pretext of providing service is concerned, the petitioner has specifically contended that the alleged letter of appointment was never supplied to him nor was produced before the enquiring authority. Lastly it is contended that no opportunity was given to cross-examine the witness by the enquiring authority. 19. I n the said representation the petitioner contends that he intended before the enquiring authority to take the evidence of three other teachers of the said school and further reiterated the said prayer in the said representation. 20. In the second show-cause notice it is mechanically recorded that the enquiring authority furnished all the relied documents to him and he was allowed to make his defence adequately. The second show-cause notice was issued on 26.8.2009 and the petitioner filed his reply dated 3.9.2009 on 4.9.2009. In the said reply, the petitioner maintained the statement made in the representation against the enquiry report and prayed for an opportunity to cross-examine the witness and also to cite three assistant teachers of the said school as witnesses in the said proceeding. 21. I do not find in the impugned dismissal order that any such opportunity was given by the disciplinary authority. What has been stated by the disciplinary authority is that the enquiry officer furnished all the relied documents to him and he was allowed to make his defence. It is further observed that the enquiry officer extended the petitioner all the opportunities but the petitioner did not avail the same. My endeavour has failed to find out from the report of the enquiring authority about giving an opportunity to the petitioner to cross-examine the witnesses or the petitioner has declined to avail such opportunity. It is further observed that the enquiry officer extended the petitioner all the opportunities but the petitioner did not avail the same. My endeavour has failed to find out from the report of the enquiring authority about giving an opportunity to the petitioner to cross-examine the witnesses or the petitioner has declined to avail such opportunity. This Court also finds that there is no whisper in the report of the enquiring authority regarding the supply of the relevant document which was relied upon. There has been a categorical statement in reply to the second show-cause notice that the petitioner was not given an opportunity to cross-examine the witness or to have a glimpse of the documents which are produced by the said witnesses and a specific prayer is made to afford such opportunity. 22. A very strange answer has come in the affidavit-in-opposition filed by the respondent authorities that the said reply to the second show-cause notice was never considered by the authority as the same was filed beyond the stipulated period although the same was served prior to the date fixed for hearing by the disciplinary authority. Such a stand shows the closed mind of the authority in proceeding with the matter. 23. When this Court directed the disciplinary authority to decide whether an opportunity of hearing was given to the petitioner by the enquiring authority or not, it is a duty cast upon the said authority to decide the same in its true perspective and not to make any observation which does not find place in the enquiry report. Being a quasi judicial authority it is expected that said authority should act judicially without being tempted with any bias or closed mind. From the very statement made in the affidavit-in-opposition that the reply to a second show-cause notice was never considered by the disciplinary authority as have been filed belatedly although the date for hearing was fixed much after the receipt of the said reply, shows the conduct of the authority and the manner of deciding a disciplinary proceeding. 24. As has been held by the Supreme Court in case of State of U.P. & Ors. 24. As has been held by the Supreme Court in case of State of U.P. & Ors. v. Saroj Kumar Sinha, reported in 2010 (2) SCC 772 that the departmental enquiry should not be treated as a casual exercise and the enquiry proceeding cannot be conducted with a close mind as the same violates the principles of natural justice in these words:- "28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the un-rebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. 29. Apart from the above, by virtue of Article 311 (2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee. 30. When a departmental enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done the object of rules of natural justice is to ensure that a Government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service." 25. It is a specific case of the petitioner that the material documents have not been submitted to him which forms the basis of the report of the enquiry officer. It is settled principle of natural justice that if any material is sought to be used in an enquiry then the copies of that material should be supplied to the party against whom such enquiry is held (see Govt. It is settled principle of natural justice that if any material is sought to be used in an enquiry then the copies of that material should be supplied to the party against whom such enquiry is held (see Govt. of A.P. v. A. Venkata Raidu, 2007 (1) SCC 338 , Jiban Kumar Sarkar v. Union of India & Ors., 2011 (1) CLT 211 HC para 25 : 2011 (3) Cal LJ (Cal) 365. 26. On the same principle the judgment relied upon by the petitioner in case of Md. Ramzan Khan (supra) the Apex Court held as follows:- "13. Several pronouncements of this Court dealing with Art. 311 (2) of the Constitution have laid down the test of natural justice in the matter of meeting the charges. This Court on one occasion has stated that two phases of the inquiry contemplated under Art. 311 (2) prior to the 42nd Amendment were Judicial. That perhaps was a little stretching the position. Even if it does not become a judicial proceeding, there can be no dispute that it is a quasi-judicial one. There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the material before conclusion is reached. These facets do make the matter quasi-judicial and attract the, principles of natural justice. As this Court rightly pointed out in the Gujarat case ( AIR 1969 SC 1294 ), the disciplinary authority is very often influenced by the conclusions of the Inquiry Officer and even by the recommendations relating to the nature of punishment to be inflicted. With the Forty-Second, Amendment, the delinquent officer is not' associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the Inquiry Officer to come to his conclusions. In case his conclusions are kept away from the delinquent officer and the Inquiry Officer submits his conclusions with or without recommendation as to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. The report is an adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural justice would be affected. Prof. Wade has pointed out: "The concept of natural justice has existed for many centuries and it has crystallised into two rules: that no man should be Judge in his own cause; and that no man should suffer without first being given a fair hearing. They (the Courts) have been developing and extending the principles of natural justice so as to build up a kind of code of fair administrative procedure to be obeyed by authorities of all kinds. They have done this once again, by assuming that Parliament always intends powers to be exercised fairly." (Administrative Law) 27. As discussed above, the authorities have not only Violated the principle of natural justice but have acted in close mind and as such the impugned decision cannot be supported. 28. Before parting, it would be pertinent that the writ Court normally should not interfere if there is an efficacious alternative remedy. Though a provision for an appeal is incorporated in the said Service Conduct Rules but Mrs. Das could not assist the Court whether such appellate forum has been constituted or not. The parties cannot be left remediless. Therefore, the writ proceeding is maintainable. 29. The impugned order of dismissal is, therefore, quashed and set aside. 30. As has been held that the enquiry authority did not afford an opportunity of hearing to the petitioner nor allowed the petitioner to cross-examine the witness, the council shall direct the de novo enquiry to be conducted by the enquiring authority. The enquiry officer shall provide all the documents produced during the enquiry proceeding and shall also give an opportunity to the petitioner to cross-examine the witness. 31. The enquiry officer, thereafter, shall submit the report by giving his finding on each charges. If the disciplinary authority finds or proposes to impose any punishment on the petitioner then a second show cause notice as contemplated under Rule 9 (2) of the said rules shall be issued inviting the explanation from the petitioner. 31. The enquiry officer, thereafter, shall submit the report by giving his finding on each charges. If the disciplinary authority finds or proposes to impose any punishment on the petitioner then a second show cause notice as contemplated under Rule 9 (2) of the said rules shall be issued inviting the explanation from the petitioner. The disciplinary authority shall also give an opportunity of hearing to the petitioner and shall pass the reasoned order thereafter. 32. The entire exercise as aforesaid is expected to be completed within four months from date. 33. With this observation, the writ petition is allowed. However, there shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.