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2012 DIGILAW 94 (CAL)

Anita Chakraborty v. University of Gour Banga

2012-01-25

TAPEN SEN

body2012
JUDGMENT Tapen Sen, J.: The Petitioner, Dr. Anita Chakraborty has, inter alia, prayed for setting aside and quashing the Notice dated 14.11.2011 issued by the Administrator of the Chanchal College, Malda (Respondent No. 5), informing the Petitioner that in order to conduct an impartial enquiry, she would no longer be the Teacher-in-charge with effect from 16.11.2011 and that she should submit all necessary documents of the College (Cheque Book, Bank Pass Book, keys of the Almirahs and other necessary relevant papers) to one Gahul Amin, Assistant Professor in Physics (Respondent No. 6) on or before 16.11.2011. The Petitioner has further prayed for an Order reinstating her on the post of Teacher-in-charge of the said Chanchal College after removing the Respondent No. 6. Other consequential prayers have been made including an interim Order restraining the Respondents from giving effect to the said Notice dated 14.11.2011 as contained in Annexure-P/13 to the Writ Petition. 2. The short facts, as pleaded, are that on 1.3.2009, the Petitioner was appointed as Teacher-in-charge of the said College vide letter dated 28.2.2009 as contained in Annexure-P/1. She has stated that since the date of her appointment as Teacher-in-charge, she found out that the accounts of the College were not being maintained by the Accountant in the Books of Accounts and as such, on 22.3.2009 and 13.9.2009, she sent letters to the Accounts Department asking for the Books of Accounts so that the accounts of the College could be maintained. She also requested the Accountant to give details of the Bank Accounts to her. These letters have been enclosed as Annexure –P/2 in the Writ Petition. 3. It appears that one non-teaching staff of the College, namely Montulal Oraon, filed a Writ Petition being W.P. No. 17342 (W) of 2009 praying, inter alia, for a direction upon the College authorities to allow him to resume his duties. It appears, as has been stated in para-5, that an Order was passed on 9.4.2010 by which the authorities were directed to allow Mantulal Oraon to resume his duties as Generator Attendant of the College. The said Order, according to the Petitioner, was complied with by the Petitioner as, at that time, she happened to be a Teacher-in-charge of the College. The said Order, according to the Petitioner, was complied with by the Petitioner as, at that time, she happened to be a Teacher-in-charge of the College. Thereafter, Mantulal Oraon filed another Writ Petition being W.P. No. 23953 (W) of 2011 wherein he prayed for a direction upon the College authorities for release of his arrears and current salaries. That Writ Petition was also disposed of by this Court directing the Director of Public Instructions to take a decision on the Petitioner’s representation after giving him an opportunity of hearing. Subsequently an Order was passed on 12.4.2011 (Annexure-P/3) by the Director of Public Instructions directing regularization of his unauthorized absence (of the said Mantulal Oraon) by sanctioning extraordinary leave without pay as per provisions of the Statutes of the University. 4. It has been stated that thereafter, on 1.10.2010, the non-teaching and teaching staff had started agitating and ventilated their grievances for non-receipt of their remunerations by resorting to strike and non-cooperation movement. This was also intimated to the Teacher-in-charge by their letter dated 30.9.2010. However, on 27.11.2010, those teaching and non-teaching staff sent a letter withdrawing their strike vide Annexure-P/6 and also expressed their remorse in having resorted to a non-cooperation movement. 5. However, in spite of withdrawal of the said strike, they again started a non-cooperation movement against the Petitioner. According to the Petitioner, the grounds for such non-cooperation against her was unknown to her and the entire situation was created to generate pressure upon her but she, without succumbing to such pressure, continued to run the College with the help of part-time teachers and non-teaching staff. 6. She has further stated that due to such an unwarranted situation, an Administrator was appointed by the University w.e.f. February 2011. On 23rd April, 2011, two letters were issued by the said Administrator to the Petitioner (Annexure-P/7) seeking clarification with regard to the dispute pertaining to disbursement of salary. According to her, although these letters were dated 24.3.2011 but they actually reached the Petitioner after 23.11.2011. 7. Being aggrieved by indiscipline and violations in the College, the Petitioner wrote a letter to the Minister-in-charge on 30.6.2011 wherein she attempted to give details with regard to the situation prevailing in the College and sought for an intervention. According to her, although these letters were dated 24.3.2011 but they actually reached the Petitioner after 23.11.2011. 7. Being aggrieved by indiscipline and violations in the College, the Petitioner wrote a letter to the Minister-in-charge on 30.6.2011 wherein she attempted to give details with regard to the situation prevailing in the College and sought for an intervention. However, the situation deteriorated to such an extent that the Petitioner was directed, even by the staff, to take consent of Group –D employees before taking any decision or framing any policy. Thereafter on 29.9.2011, the Petitioner again wrote to the Administrator in relation to the letter dated 23.4.2011 answering the queries raised by him and also informed him that there was a tense situation which was prevailing in the College. This letter is Annexure-P/9. 8. On 20th October, 2011, the Administrator issued a letter (Annexure-P/10) wherein he stated that she was not complying with his instructions in relation to his letters dated 23.9.2011, 29.9.2011 and 13.10.2011 which, according to him, was insubordination. He further stated that she was also not maintaining financial discipline and that the accounts of the College had not been audited since 2008 although the Department of Higher Education, by their letter dated 6.9.2011, had issued instructions to complete audits of the College by 31.12.2011. He also alleged that the Petitioner was not maintaining Books of Accounts and therefore, asked her to give reply within 7 days as to why disciplinary action should not be taken against her. It is stated that on receipt of the said letter, the Petitioner replied vide letter dated 22.10.2011 (Annexure-P/11) wherein she stated that “due to being in mental disturbance for illness of my son it is not possible for me to comply with your instruction as desired right now.” 9. In the said letter, the Petitioner also stated that since her son had to undergo a critical tumor operation on the throat and since she was going to Lucknow for his Iodine Radio-Therapy, she be given time till after her return for purposes of complying with his directions and also for giving suggestions for the proper functioning of the College. The Petitioner has stated that thereafter on 24.10.2011, she wrote to the Vice-chancellor informing that they had not received their salary from August till date and therefore requested intervention in the matter. 10. The Petitioner has stated that thereafter on 24.10.2011, she wrote to the Vice-chancellor informing that they had not received their salary from August till date and therefore requested intervention in the matter. 10. The Petitioner has stated that without providing any opportunity of being heard and without granting her any leave, the Administrator issued the impugned letter dated 14.11.2011 removing her from the post of Teacher-in-charge. The said letter was handed over to her in the College premises itself on 16th November, 2011 and since then, she had not been allowed to perform her duties. It is on the basis of the aforementioned facts and circumstances and on the ground that she was not even given a chance of hearing before her removal that the Petitioner has filed this Writ Petition. 11. On 25.11.2011, this Court passed an order staying the operation of the impugned Order dated 14.11.2011 till further orders. However, opportunity was given to the Respondents to apply for modification of the Order. Thereafter, an Application for vacating the interim order was filed on behalf of the Administrator being CAN 10825 of 2011 which was Ordered to be considered along with main Writ Petition, by Order dated 9.12.2011. In the said CAN Application, the Administrator has stated that the Petitioner was never removed from her service and that she is still continuing. He has stated that the Petitioner was only removed from the post of Teacher-in-charge but not from service. He has also stated that the post of Teacher-in-charge is a stop-gap arrangement and it can be changed at any time for the smooth running of the College. He has also stated that several complaints had been received against the Petitioner and that the Division Bench had already held that the post of a Teacher-in-charge was not a substantive post and that a person working on the post of a Teacher-in-charge did not have an indefeasible right to continue on the said post. He has further stated that on 11.11.2011 (that is prior to the passing of the interim order dated 25.11.2011) a Notice had been circulated amongst the senior teachers to give their willingness to act as Teacher-in-charge and all except the Respondent No. 6 had expressed their unwillingness and therefore, the Respondent No. 6 was offered the post of Teacher-in-charge. 12. An Affidavit-in-opposition has been filed on behalf of the Respondent Nos. 1, 2, and 3. 12. An Affidavit-in-opposition has been filed on behalf of the Respondent Nos. 1, 2, and 3. It has been sworn by the Registrar of the Respondent No. 1. He has stated that by a letter dated 9.9.2011, the Respondent No. 2 (Vice-chancellor) had directed the Petitioner to initiate the process for the formation of a Governing Body of the College but she failed to do so and instead, she informed the Respondent No. 2 that it was impossible to process the formation of the Governing Body. She also requested the Vice-Chancellor that as the Puja Vacation and Festival of Id was approaching and since salaries had not been paid, the Vice-chancellor should take appropriate steps to overcome such an administrative crisis till the new Governing Body was formed. She also informed that she would be away on leave from 12.9.2011. He has also stated that on the request of the Petitioner and to overcome the crisis and specially to ensure that the staff members got their salary, the Vice-chancellor (Respondent No. 2) directed the private Respondent (Respondent No. 5) to act as the Administrator with immediate effect and it was under these circumstances that he was appointed as the Administrator. The statements made in paras 3 (b) and (c) of the Affidavit-in-opposition are quoted below:- 3. b) At the request of the petitioner and to overcome the crisis, especially to ensure that the teaching and non-teaching staffs of the college got their salary the respondent No. 2 directed that the private respondent would act as the administrator with immediate effect. The said decision was approved by the University Council. c) Under such circumstances the private respondent was appointed as the administrator and at the request of the petitioner the respondent No. 2 was compelled to make such an arrangement. (Quoted) 13. It has further been stated that the Petitioner has failed to perform her duties as Teacher-in-charge and there has been constant agitation in the College and that the Petitioner put the University in a very difficult situation when she suddenly took leave from 12.9.2010 without paying salary and bonus to the Staff and Teachers during Durga Puja and Id and therefore, finding no other alternative, the University was forced to appoint an Administrator. It has also been stated that the Petitioner neglected to start the process of formation of the Governing Body and instead of complying with the order of the Director of Public instructions which was passed on 12.4.2011, she deliberately delayed the matter and wrote irrelevant letters to the University. 14. In the Contempt Application being CPAN 1607 of 2011 filed by the Petitioner, she has prayed for taking action against the alleged Contemnors/Opposite Parties (Dr. Prantosh Sen, Administrator and Gahul Amin, Assistant Professor in Physics) for willfully disobeying the Order dated 25.11.2011 and 5.12.2011 by not allowing her to perform her duties as Teacher-in-charge of the College and also, by not allowing her to enter the office of the Chanchal College. 15. The Petitioner has stated that the Order dated 25.11.2011 was served upon the alleged contemnors through an advocate of the Petitioner vide letter dated 29.11.2011 and on refusal to accept, the same was received by one Abdul Malek, Guard of Chanchal College by putting seal and signature. The Petitioner had also sent the letter along with a copy of the order by speed post. Thereafter, on 29.11.2011, the Petitioner filed an Application before the IC Chanchal Police Station wherein she said that by letter dated 14.11.2011, the Administrator had terminated her from the post and therefore she had filed the Writ Petition on the basis whereof the Order of Stay had been passed on 25.11.2011. She further complained that when she went to the College on 29.11.2011, one Dr. Pankaj Kundu, Professor of Economics refused to receive the Court’s order and therefore, an attempt was made to serve the same on one Sri Subrata Bhowmik , Accountant but he was not found on his chair and therefore, the letter was finally received by Abdul Malek, Guard as stated above. She had also complained that the said Dr. Kundu and the Accountant locked the chamber of the Teacher-in-charge and prevented her to enter. On the basis of the aforementioned grievances, she prayed before the IC Chanchal Police Station that he should take appropriate action. The petitioner has further stated that on 1.12.2011 some notices had been pasted on the Notice Board under the seal and signature of alleged Contemnor/Opposite Party No. 2 describing himself as the Teacher-in-charge. On the basis of the aforementioned grievances, she prayed before the IC Chanchal Police Station that he should take appropriate action. The petitioner has further stated that on 1.12.2011 some notices had been pasted on the Notice Board under the seal and signature of alleged Contemnor/Opposite Party No. 2 describing himself as the Teacher-in-charge. She has further stated that in complete violation of the order dated 25.11.2011, the alleged Contemnor/Opposite Party No. 2 has been operating the Bank Account in the capacity of Teacher-in-charge. 16. Having considered the aforementioned facts and circumstances, this Court is of the view that the submissions of the learned Counsel for the Administrator as well as for the University to the effect that under compelling circumstances, the Administrator had to be appointed and that the Petitioner cannot claim an indefeasible right on the post of a Teacher-in-charge, does not appeal to this Court. The fact remains that the Petitioner had been requested on the basis of a direction made by the governing body that she should take over charge of the College as Teacher-in-charge. The fact also remains that such an Order was passed by the President of the Governing Body on 28.2.2009 and therefore, even if the Petitioner was functioning on a stop-gap arrangement, even then the Administrator should not have passed the impugned Order without giving her an opportunity of hearing and that too, when he had allegations to make against her as would be evident from Annexure-P/13. Under the circumstances, and for the aforementioned reason to the effect that no opportunity of hearing was given, the impugned Order cannot be sustained. It is accordingly set aside and quashed. The Writ Petition is allowed. Re: CPAN 1607 of 2011 So far as the contempt application is concerned, this Court is of the view that when the impugned Order had been stayed till further Orders of this Court by its Order dated 25.11.2011, Gahul Amin, the Respondent No. 6 to the Writ Petition and Contemnor/Opposite party No. 2 to the Contempt Application could not have taken the law in his own hands and could not also therefore have proceeded to paste Notices on 1.12.2011 signing in the capacity of the Teacher-in-charge as he did by those Notices which have been brought on record vide Annexure-E at pages 31 to 33 of the Writ Petition. The impugned Order having been stayed by this Court and the Order having been served upon the Guard of the College, it is not expected that either the Administrator or the alleged contemnor/opposite party No. 2 did not have knowledge of the same. Consequently, the statements made in the Writ Petition to the effect that she was prevented from entering into the College cannot be disbelieved and considering her statements made before the concerned Police Station as well as before this Court, this Court is of the view that the alleged Contemnor/opposite Parties are guilty of having violated the Order of this Court. This Court therefore directs the issuance of Rule against the alleged Contemnor/Opposite Party Nos. 1 and 2. Rule is made returnable on 29.2.2012. Re: CAN No. 10825 of 2011 As a consequence of the Writ Petition having been allowed, this CAN application wherein prayers have been made for vacating the interim order, is dismissed. The Petitioner is now directed to take all steps so that a Governing Body can be constituted within the shortest period of time but not later than a period of 3 months from today. As a consequence of this judgment, the Respondent No. 6 (Gahul Amin) will be deemed to have been restrained from functioning as the Teacher-in-charge. Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.