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2012 DIGILAW 25 (CAL)

Md. Salauddin Mirza v. STATE OF WEST BENGAL

2012-01-10

HARISH TANDAN

body2012
Judgment : HARISH TANDON, J. In Re: CAN 10714 of 2011 In spite of service none appears on behalf of the District Primary School Council when the matter is taken up today. This is an application for restoration of the writ petition, which was dismissed on 22nd November 2011. The cause for non-appearance on the said date when the matter was dismissed for default has been shown in paragraph 7 of the said application which I find to be sufficient. Hence, the order dated 22nd November 2011is hereby recalled. The application, being C.A.N. 10714 of 2011, is allowed. The writ application be restored to its original file and number. In Re: W.P. 12396 (W) of 2008 By consent of the parties the writ petition is taken up for hearing. The petitioner has assailed the order dated 2nd June 2008 passed by the Chairman, Murshidabad District Primary School Council whereby and where under the petitioner was removed from the post of Headmaster and demoted to the post of Assistant Teacher in the said school. W.P. 12396 (W) of 2008 The case made out by the petitioner in this writ petition is that the said order is illegal and arbitrary and has been passed without following the statutory rules governing the field. Further challenge to the said order is made on the ground of violation of principle of natural justice. Learned Advocate appearing for the State submits that it is the Council who is the competent authority to pass an order of punishment and as such the State respondents have very little role in respect of the grievance raised in this writ petition. From the affidavit-in-opposition, filed by the District Primary School Council on an earlier occasion, it appears that the order of punishment, which is assailed in this writ petition, was an outcome of mass allegation by the villagers. At page 4 of the said opposition it is categorically stated that upon receipt of the complaint from the Sub Inspector of School, the Chairman, District Primary School Council gave personal hearing to the petitioner on 13th June, 2007 at 1 p.m. where the petitioner alleged to have admitted all the allegations and consented for demotion. At page 4 of the said opposition it is categorically stated that upon receipt of the complaint from the Sub Inspector of School, the Chairman, District Primary School Council gave personal hearing to the petitioner on 13th June, 2007 at 1 p.m. where the petitioner alleged to have admitted all the allegations and consented for demotion. Such fact, however, has been disputed by the petitioner in reply where it is categorically stated that the petitioner did not admit any of the charges and the alleged letter of consenting demotion was written on instruction of the Chairman of the District Primary School Council. It appears from the respective pleadings that a show cause notice was issued at an earlier point of time alleging various irregularities in functioning of the petitioner but such show cause notice was not subsequently proceeded with and the petitioner was exonerated from any punishment which could have been inflicted on the basis of the said charges. Subsequently, the impugned order is passed for demotion, as would be evident from the statement of the W.P. 12396 (W) of 2008 District Primary School Council, which has been passed on consent of the writ petitioner. District Primary School Council is a statutory authority and is bound to act within the statutory boundaries. In exercise of the power conferred under Section 106 of the West Bengal Primary Education Act, 1973; West Bengal Primary Education (Conduct of Service of Teachers of Primary Schools) Rules 2001 is promulgated which came into effect on and from 12th July 2001. Rule 9 of the said statutory rules provides that no order imposing penalties shall be made without proper enquiry by an Enquiry Authority and no order imposing such penalty shall be made without serving show cause notice to the teacher and giving him an opportunity of being heard. Therefore, the order inflicting punishment, as envisaged under Order 8 of the said Rules could not have been passed by the competent authority without following the provisions contained in the said statutory Rules. The relationship of an employer and an employee is fiduciary as the employee is in a position to dominate the will of the employee. There are instances galore where the employees are compelled to write certain statements at the insistence of the employer, which might ultimately prove to be fatal. The relationship of an employer and an employee is fiduciary as the employee is in a position to dominate the will of the employee. There are instances galore where the employees are compelled to write certain statements at the insistence of the employer, which might ultimately prove to be fatal. That apart, when statute provides a particular mode to be adopted before inflicting punishment upon an employee, the same cannot be surpassed on the strength of the fact that the employee consented for such inflictment of punishment. In such view of the matter, this Court finds that the impugned order is illegal, arbitrary and has been passed beyond the statutory rules and is, therefore, not sustainable. This Court further finds that no opportunity of hearing was given to the petitioner to before inflicting punishment and thus, the authorities have acted in gross violation of the W.P. 12396 (W) of 2008 principles of natural justice. The writ petition is, thus, allowed. However, there will be no order as to costs. Urgent Photostat certified copy be supplied to the parties, if applied for, on priority basis.