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2011 DIGILAW 34 (CAL)

Kalipada Ghosh v. STATE OF WEST BENGAL

2011-01-11

HARISH TANDAN

body2011
JUDGMENT 1. AFFIDAVIT-in-Opposition filed on behalf of the State be kept with the record. 2. THE petitioner submits that the matter can be disposed of on the available documents annexed to the writ application. THE petitioner has challenged the impugned order dated 24th of September, 2009 passed by the' Chairman, District Primary School Council, Burdwan whereby and whereunder the authority concerned refused to set aside and/or quash the suspension order. The petitioner was initially appointed as an assistant teacher in a primary school and subsequently was promoted to as a Head Teacher of Raghunathpur F.P. School. The petitioner was entangled in a Criminal case, being Budbud Police Station Case No. 47/08 under Sections 147/ 148/149/341/323/325/326/308/120B and 304 of the Indian Penal Code. In connection with the said case, the petitioner was arrested on 23.8.2008 and was detained in custody till 26.8.2008 when he was enlarged on bail. It is the case of the petitioner that he was allowed to resume his duty on and from 29th September, 2008. It is further stated that on 2nd of December, 2008, the petitioner was orally communicated that he had been put under suspension and should not attend school on and from the 3rd of December, 2008. Subsequently, the respondent No.4 struck off all the attendance of the petitioner from the Register. The petitioner filed a comprehensive representation against such an action. Instead of disposing of the said representation, the respondent No.4 issued a show-cause notice but thereafter did not take any action to initiate disciplinary proceeding. However, the petitioner made another representation but thereafter the authorities were not taking any step for disposing of the said representation; as a consequence whereof, the petitioner was constrained to file a writ petition, being W.P. No. 9748 (W) of 2009, before this Court. The said writ application was disposed of on the 17th of June, 2009 directing the Chairman of the Council to consider the expediency of revoking the order of suspension, within the stipulated period. Pursuant to the said order, the impugned order was passed. 3. MR. Roy, learned Counsel for the petitioner, submits that the respondent No.2, while up-holding the order of suspension, cannot pass an order to the effect that the matter shall be further reviewed after passing of the final verdict in the said Criminal case. Pursuant to the said order, the impugned order was passed. 3. MR. Roy, learned Counsel for the petitioner, submits that the respondent No.2, while up-holding the order of suspension, cannot pass an order to the effect that the matter shall be further reviewed after passing of the final verdict in the said Criminal case. It is further submitted that the authorities, being were well aware of the pendency of the criminal proceedings and detention of the writ petitioner in the custody, once having allowed the petitioner to resume duty, cannot turn back and pass an order of suspension. In support of his contention that after the release of an employee from detention or having been enlarged on bail, the deemed order of suspension cannot continue, he has relied on the judgment, passed by this Court, reported in 2005 (1) CLJ 362 (Sk. Ayub Ali v. The State of West Bengal Ors.). 4. MR. Jayanta Mitra, learned Council for the School Council, submits that the petitioner, suppressing the fact of his detention in the custody had joined the school without any authority. It is further submitted that a disciplinary proceeding having been started, the suspension order cannot be quashed and/or set aside at this stage. Having considered the submission made by the respective Counsels, it appears that the petitioner was taken into custody on the 23rd of August, 2008 in a Criminal case where his name figured as one of the accused. Rule 7 sub-rule (2) of the West Bengal Primary Education (Service Conduct of Teachers of Primary Schools) Rules, 2001 postulates:- "7. (2) Where a teacher is detained in custody for a period 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. 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. RULE 7 sub-rule (2) of the West Bengal Primary Education (Service Conduct of Teachers of Primary Schools) Rules, 2001 lays down where a teacher was detained in custody for a period exceeding 48 hours on criminal charge or otherwise shall be deemed to have been suspended by an order of appointing authority with effect from the date of detention and shall remain under suspension until further orders. RULE 8 of the said Rules provides the penalties to be imposed. RULE, 9 of the said Rules provides an obligatory- clause not to impose the aforesaid penalties without proper enquiry by an enquiring, authority to be appointed by the disciplinary authority or without serving show-cause notice to the teacher and giving him an opportunity of being heard. It is further stipulated therein that upon completion of the enquiry, the disciplinary authority shall consider the report and shall take action in terms of RULE 10 of the said RULEs. 6. THUS, the order of suspension, which is a deemed order, operates from the date of detention. In the event the teacher is in custody for more than 48 hours, such deemed order of suspension shall remain operative until further orders passed by a competent authority. The respondent No. 2 considered the case of the writ petitioner and has refused to quash and/or set aside the order of suspension on the ground that the disciplinary proceedings had already started and final verdict in the Criminal case has not yet been passed. The respondent No. 2 further opined that the case of the petitioner would be reviewed further after the final verdict of the Criminal case is passed. 7. LATER part of the order by which the authorities concerned have suspended the consideration for setting aside the suspension order till the final verdict of the Criminal case is concerned, cannot be supported. The disciplinary proceedings and the proceedings initiated before the Criminal Court are distinct and separate and stands on a different footing altogether. 8. THE judgment in case of Sk. Ayub Ali, relied upon by the learned Counsel for the petitioner, does not apply in the facts and circumstances of the instant case. The disciplinary proceedings and the proceedings initiated before the Criminal Court are distinct and separate and stands on a different footing altogether. 8. THE judgment in case of Sk. Ayub Ali, relied upon by the learned Counsel for the petitioner, does not apply in the facts and circumstances of the instant case. In the said case His Lordship observed that in spite of a deemed order of suspension, disciplinary proceedings had not been started. Paragraphs 10, 11, 12, 13 and 14 of the said judgment, which are relevant, are quoted hereunder:- "10. However, it is difficult to understand in the present case as to why and how the authority concerned namely, Chairman, Ad-hoc Committee or the District Primary School Council, Midnapore, found it necessary to put the headmaster, the writ petitioner herein, was released by the learned Magistrate on 1st September, 1998. After the said order of the learned Magistrate on 1st September, 1998, no disciplinary proceedings, it appears, was not even in or under contemplation against the petitioner when the said order of suspension was issued or made against the. petitioner. When there was no disciplinary proceeding pending or even in contemplation against the writ petitioner, it is difficult to appreciate how the authority concerned namely, the Chairman of the-Ad-hoc Committee of the Midnapore District Primary Council could exercise his power under the provisions of the said Rule or in terms thereof and the said order of suspension could or can be termed as a legal order against the writ petitioner herein. 11. As a simple law of precedent, the judgment cited by Mr. Deb Barman in support of his case is to be followed particularly when I see no reason to differ from the views expressed in the said judgment by the Hon'ble Judge. I am, as aforesaid, concerned with the identical or almost similar provisions in the present as were involved in the above case. 12. Since, in my opinion, the concerned respondent exercised the power under the said provisions of the said Rule wrongly the said order of suspension against the petitioner cannot be allowed to remain or continue against him indefinitely. THE school authority or the authority concerned has the power of taking disciplinary proceeding against any teacher or employee under the relevant provisions of the Rules in question. THE school authority or the authority concerned has the power of taking disciplinary proceeding against any teacher or employee under the relevant provisions of the Rules in question. But if an order is passed which on examination is found has not been passed in accordance with the provisions of a Rule in question, or when it is found that the authority in exercise its power under a provision of law has exceeded its authority or jurisdiction conferred upon the authority by such provision then that order cannot be sustained in the eye of law. 13.Having found that the Chairman of the said Council exercised his power under the said Rule wrongly, the said order cannot be allowed to continue against the writ petitioner. Before I part with the subject, I must say, perhaps at the cost of re-petition that it is very difficult to appreciate for a reasonable man with a reasonable approach as to why the petitioner was put under suspension much after his release by the learned Sub-Divisional Magistrate when the learned Judicial Magistrate did not even find the name of the accused in the concerned F.I.R. 14.No. disciplinary proceedings have so has been initiated against the petitioner nor the same had or has so far been in contemplation of the authority concerned. I have, however, my doubts whether the authority concerned could at all initiate any disciplinary proceeding against the petitioner on the day it passed order of suspension or even thereafter, nothing has however, been done as yet. My doubts perhaps will remain with me even after I have disposed of this writ petition. In my considered opinion the said case is distinguishable as, in the instant case, the disciplinary proceedings has already been started and as such there is no point in revoking the suspension order at this stage. Thus, that part of the order, by which the respondent No. 2 rejected the contention of the writ petitioner in revoking the order of suspension, shall remain. I do not support the view taken by the respondent No. 2 so far as that part of the order by which the respondent No. 2 has observed that matter shall be reviewed for revocation of the suspension order only after the final verdict of the Criminal case is passed. That part of the order is, thus, hereby set aside and/or quashed. 9. That part of the order is, thus, hereby set aside and/or quashed. 9. THE disciplinary proceedings has already started and it is expected that the same should reach to its logical conclusion within a certain period. THE authorities concerned are directed to complete the disciplinary proceedings within four months from the date of communication of this order after affording an opportunity of hearing to the writ petitioner by passing a reasoned order, in accordance with law, and the same be communicated to the writ petitioner within a week thereafter. 10. THE writ application, thus, stands disposed of. There will be no order as to costs.