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2012 DIGILAW 546 (CAL)

Sabyasachi Sengupta v. STATE OF WEST BENGAL

2012-06-22

JYOTIRMAY BHATTACHARYA

body2012
JUDGMENT 1. On the recommendation of the School Service Commission vide letter dated 30th March, 2010, the petitioner was appointed as Headmaster in Birendranagar High School on 4th May, 2010. Admittedly, at the time of his appointment he could not submit certain documents, namely,-- (i) release order, (ii) last pay certificate and (iii) acceptance of his letter of resignation by the former school viz. Patharmora High School (H.S.) where he was employed earlier. The petitioner was repeatedly called upon by his present employer for submission of those documents as those documents were necessary for regularizing the appointment of the petitioner in the said school. 2. As a matter of fact, those documents could not be produced by the petitioner as the school authority of Patharmora High School (H.S.), Bankura, did not supply those papers to the petitioner, despite order was passed by a learned Single Judge of this Court on 22nd March, 2010 in W.P. No. 6359(W) of 2010 for issuance of those papers to the petitioner. 3. Since the petitioner failed to produce those documents to his present employer within a reasonable time, the Managing Committee of the school, where he was appointed as Headmaster, revokes the letter of his appointment and his name was stuck off from the school register. The said revocation order passed by the school authority on 27th February, 2007, contained in annexure P/14, is under challenge in this writ petition at the instance of the said Headmaster. 4. Let me now consider the merit of this writ petition in the facts of the instant case. Mr. Chatterjee, learned Advocate, appearing for the school authority of Patharmore High School where the petitioner was earlier employed, submitted that those papers could not be issued by his client earlier because of the pendency of the criminal proceeding which was initiated against the petitioner at the instance of his client. He further submits that subsequently his client decided to abandon the said criminal proceeding by adopting a resolution wherein his client also resolved to supply those papers to the petitioner. Accordingly his client supplied those papers namely,-- (i) release order, (ii) last pay certificate and (iii) resolution of the Managing Committee of the school accepting his resignation letter to the petitioner. This Court is informed by Mr. Chatterjee that no charge-sheet has yet been submitted in the said criminal proceeding. Mr. Accordingly his client supplied those papers namely,-- (i) release order, (ii) last pay certificate and (iii) resolution of the Managing Committee of the school accepting his resignation letter to the petitioner. This Court is informed by Mr. Chatterjee that no charge-sheet has yet been submitted in the said criminal proceeding. Mr. Chatterjee, further submitted before this Court that his client has no objection, if the petitioner's service in the present school is regularized. 5. Mr. Sen, learned Advocate, appearing for the respondent nos. 7 and 8, refuted such submission of Mr. Chatterjee by submitting that a person against whom a criminal case is pending, cannot be considered for appointment as Headmaster in this school. In support of his submission he relied upon a decision of the Hon'ble Supreme Court in the case of State of West Bengal and Ors. vs. Sk. Nazrul Islam; reported in AIR (2012) SC 160. He further submitted that since the offence for which the said criminal case was initiated against the petitioner is non-compoundable offence, the said criminal case even cannot be withdrawn by the former employer of the petitioner. Thus, by relying upon the aforesaid decision of the Hon'ble Supreme Court he submitted that no interference is necessary with the order of the revocation of the petitioner's appointment in the facts as stated above. 6. Mr. Basu, learned Senior Counsel, appearing for the petitioner, submitted that the appointment of the petitioner was revoked by the school authority, namely the present employer of the petitioner only on the ground of non-production of the above mentioned three documents. He further submitted that his client's appointment was not revoked on the ground of pendency of a criminal case against him. Thus, he submitted that when the pendency of the criminal case against his client was not shown as a ground of revocation of his appointment in the impugned order, the said respondents cannot now justify their action by supplying additional ground which was never whispered in the impugned order. Mr. Basu further submitted that even the criminal case was initiated against his client long after he tendered his resignation before the school authority of the former school where he served earlier. As such, subsequent institution of criminal case cannot stand in the way of regularizing the service of the petitioner, particularly when the lacking documents are now made available to the petitioner by his former employer. 7. As such, subsequent institution of criminal case cannot stand in the way of regularizing the service of the petitioner, particularly when the lacking documents are now made available to the petitioner by his former employer. 7. This Court finds some substance in such contention of Mr. Basu as it is well-settled law that the authority cannot supply any additional ground to justify its action when the action was not founded on such ground. This Court agrees with the submission of Mr. Basu to the effect that since the pendency of the criminal case against the petitioner was not shown as a ground of revocation of the petitioner's appointment, the said respondents cannot justify their action by taking such additional grounds. 8. I have already indicated above that the appointment of the petitioner was revoked only on the ground of non-production of above mentioned three documents by the petitioner. The reasons for non-production of those three documents have already been recorded above. Fact remains that the former employer of the petitioner has now decided to abandon the said criminal case against the petitioner and pursuant to a resolution adopted by the Managing Committee of the said school, the school authority, in fact, has issued all those above mentioned three documents. As such, if those documents are produced before the concerned authority then the appointment of the petitioner can now be regularized. But before passing the said direction this Court feels it necessary to consider the effect of the order of the Hon'ble Supreme Court in the case of State of West Bengal and Ors. vs. Sk. Nazrul Islam (Supra) which was relied upon by Mr. Sen, the learned Advocate for the respondent nos. 7 and 8. On perusal of the said decision this Court finds that the facts of the said case before the Hon'ble Supreme Court do not match with the facts of the present case. The Hon'ble Supreme Court observed in the said decision that apart from the pendency of the criminal case against the petitioner there, the petitioner therein was guilty of suppression of material facts relating to the pendency of the said criminal proceeding in his application form submitted by him by which he offered his candidature for the post concerned. Charge sheet was also submitted in the said criminal proceeding. Charge sheet was also submitted in the said criminal proceeding. But in the present case, the criminal case was initiated by the former employer of the petitioner long after he joined the post of Headmaster in the present school. No charge sheet has yet been submitted in the criminal preceding. The former employer of the petitioner subsequently decided to abandon the said criminal proceeding and in fact, supplied all the relevant documents to the petitioner after accepting his resignation. Mr. Chatterjee, learned Advocate, appearing for the former employer of the petitioner, has submitted before this Court that his client has no objection, if the petitioner's service in the present school is regularized. 9. The petitioner herein has also not suppressed any material facts either before the School Service Commission or before his present employer relating to his antecedents . Thus, by considering the differences of the facts between the case dealt with by the Hon'ble Supreme Court and the case before this Court, this Court has no hesitation to state that the principles laid down by the Hon'ble Supreme Court in the said case, cannot be applied in the present proceeding. That apart, had these documents been released by the petitioner's former employer immediately after he resigned from his service in the said school, when there was no criminal proceeding against him, his service in the present school could have been regularized, prior to initiation of the said criminal proceeding against the petitioner and in that event his appointment could not have been revoked until he was found guilty and convicted of the charges in the said criminal proceeding. 10. This Court, thus, disposes of this writ petition by directing the school authority of the present school to recall its impugned decision for revocation of the appointment letter of the petitioner on acceptance of these documents viz. Release order; (ii) last pay certificate and (ii) order of acceptance of the resignation of the petitioner by his former employer, and submit the proposal for regularization of his service before the concerned District Inspector of School (S.E.) who is also directed to take the ultimate decision on the school's such proposal in accordance with law, within twelve weeks from the date of receipt of such proposal from the school authority. The school authority is also directed to submit such proposal to the concerned District Inspector of School (S.E.) within four weeks from the date of receipt of these three documents from the petitioner. The writ petition is, thus, allowed. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.