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2013 DIGILAW 705 (CAL)

Murari Mohan Maity v. STATE OF WEST BENGAL

2013-09-19

SAMBUDDHA CHAKRABARTI

body2013
JUDGMENT Sambuddha Chakrabarti, J. By this writ petition the petitioner has prayed for a writ in the nature of Mandamus commanding the respondents to pay to him as per law all retiral benefits as well as interest calculated from the date of approval of appointment and arrears of salary, to pay pension and for other reliefs. The case of the petitioner inter alia is that he was an organising teacher of a secondary school and he was appointed as its Headmaster with effect from January 2, 1970. From September 29, 1973 he was prevented by the secretary of the school from taking any class and the petitioner was not even allowed to sign the attendance register. The secretary had informed the petitioner subsequently that the managing committee was unable to take any decision in his favour but if the higher authorities or any judgment allows the petitioner to join the committee will have no objection. The petitioner filed a writ petition which was disposed of in the year 2003 with a direction upon the Director of School Education to dispose of the petitioner’s grievance by passing a reasoned order. The petitioner subsequently filed another writ petition challenging the ex parte decision passed by the Director of School Education on July 22, 2003. The said writ petition was disposed of by an order dated May 2, 2011 by a single Judge of this court wherein it was the finding of the court that the secretary of the school himself was not willing to allow the petitioner to join his duties. The court found that the allegation of the petitioner had substance. The ex parte order was set aside and the Director of School Education was directed to rehear the matter in the light of the observations made in the said order upon giving the petitioner an opportunity of hearing wherein he would be entitled to submit all the documents. The hearing was given by the Deputy Director of School Education in the absence of the District Inspector of Schools. At the hearing the petitioner had submitted a written note of submission. The Director of School Education passed the impugned order dated January 9, 2012 wherein the authority refused to give relief to the petitioner. The hearing was given by the Deputy Director of School Education in the absence of the District Inspector of Schools. At the hearing the petitioner had submitted a written note of submission. The Director of School Education passed the impugned order dated January 9, 2012 wherein the authority refused to give relief to the petitioner. The petitioner has assailed the order by asserting that while he was working as the Headmaster of the school he was prevented by the secretary of the school from discharging his duties and this continued till his date of retirement on January 31, 2008. Till the date of the retirement he could not performed his duties. Therefore, he is not the person at fault. A further point of grievance of the petitioner is that the respondents authorities had exceeded the jurisdiction by conducting an enquiry into the matter and thus tried to re-adjudicate which was not directed by this court while disposing of the petitioner’s earlier writ petition. It may be mentioned that in spite of opportunity being given to file affidavit-in- opposition the respondents have not used any affidavit and in spite of fresh service of notice upon the respondents they did not even appear to contest the case. It appears from the order impugned that it was decided to make an in situ enquiry by three officers. The report as submitted by the team revealed that they had interrogated the then secretary of the school, the ex-teacher-in-charge of the school and other teachers and they concluded that they could not get any evidence from the in situ enquiry to substantiate conclusively that the petitioner was prevented from entering the school forcefully. From this and after considering some of the Government Orders of 1977, 1978 and 1980 it was held that the school authority was rightly not in a position in the year 1995 to allow the petitioner to join in view of the leave rules. Moreover the post held by the petitioner was filled up by another incumbent in view of the prior permission accorded by then District Inspector of Schools. Moreover the post held by the petitioner was filled up by another incumbent in view of the prior permission accorded by then District Inspector of Schools. The District Inspector of Schools had also referred to a Government Order, dated August 19, 1977, which stipulated that the teachers and other employees who were actually prevented from attending schools or performing their normal duties were to be immediately allowed to join their duties and they should join it within one month from the date of the order or might at their option continue to remain in their alternative employment in any other educational institution within the state. The respondent authority held that in spite of the said orders the petitioner preferred writing only some type of common letters by post in more or less the same language to the functionaries of educational authorities even after 1980. He also observed that the petitioner did not register any General Diary or First Information Report with the police station or did not submit any application at the receiving section of any educational authority. The Director of School Education further held that there are different fora to register the complaints against a functionary and as a last resort one may take shelter of this court. The petitioner preferred to take the shelter only in the year 1995, i.e., about 15 years after the publication of the Government Order dated August 19, 1977. From this he concluded that the petitioner preferred to delay and to pass out time. On this ground relief to the petitioner was declined, because the action taken by him is not in conformity with the condition as stipulated in the Government Order dated August 19, 1977. This order passed by the Director of School Education does not bear a moment’s scrutiny. The respondent authority had failed to approach the entire problem from the proper perspective and has laid the entire blame at the doors of the petitioner in not taking steps expeditiously. All that the Director of School Education was required to do by virtue of the order of this court was to rehear the matter “in the light of the above observations” which means the observations made by a learned single Judge of this court. The respondent no. All that the Director of School Education was required to do by virtue of the order of this court was to rehear the matter “in the light of the above observations” which means the observations made by a learned single Judge of this court. The respondent no. 3, the Director of School Education did not prefer any appeal from the said order which shows that he had accepted the same and, therefore, the findings arrived at in that order had attained finality and he was required to dispose of it in the light of the observations made by this court. The report of the enquiry as quoted in the order impugned clearly shows that they also failed to approach it from the proper perspective. That their approach was erroneous would be obvious from the concluding observations. They did not get any evidence which substantiated conclusively that the petitioner was prevented from entering the school forcefully. This is a baffling conclusion. After about 38 years an alleged incident was sought to be enquired by some officials who had asked some persons who were not likely to throw any light on it or were not likely to give any evidence to any force being employed by them against the petitioner. It was still more surprising that the said committee even after holding that the letter of the ex-secretary dated November 24, 2011 was not in conformity with the resolution adopted by the managing committee on November 21, 2011 this committee had taken just a reverse view that the petitioner failed to prove that he was prevented forcefully. Based on this report as well as with reference to certain Government Orders the respondent no. 3 held that no relief could be granted to the petitioner. The process of reasoning on the basis of which the respondent had arrived at his conclusion appears to be not only unconvincing, but not supported by reasons. It appears that the principal factor weighing with the process of ratiocination was that even after the Government Orders of 1977 the petitioner went on making only “some type of common letters by post in more or less same language to the functionaries of the educational institutions even after 1980.” This is a surprising stand taken by the respondent no. 3. 3. The petitioner was a teacher and it was in fitness of the post he held that he approached the appropriate educational authorities who were superiors to him. That the authorities instead of redressing the grievances found fault in approaching them was really surprising. It also does not appeal to logic that the respondent no. 3 even found fault with the same kind of language used by the petitioner. If the grievance of the petitioner remains the same it was immaterial whether he used the same language or how he expressed it at all. At most the petitioner could be blamed for his linguistic monotony. His rights could not be denied on the basis of it. This was not worthy of being mentioned. The respondent no. 3 had gone beyond the scope of the exercise that he was required to discharge in holding that the petitioner’s case is not believable as he had not lodged any FIR or complaint with the police. Why the petitioner did not take any criminal step against the respondents cannot be a ground for denying him of his rightful claims. This becomes all the more evident from the fact that the respondent no. 3 had even found fault with the petitioner as he had approached the court belatedly. This might be a consideration for the court not to grant the reliefs sought for by him. But the court having entertained the petition and directed the respondent no. 3 to dispose of it in the light of the observations made by the court it was not competent for the respondent no. 3 and also not within his jurisdiction to refuse relief on this ground also. The letter of the secretary of the school dated November 24, 1994 clearly evinces that the then secretary of the school assured him that if higher authorities or court allowed him to join the school the committee would have no objection on their part. It was on this basis that the petitioner had filed the first writ petition and obtained an order. In such view of it the observation of the respondent no. 3 that the school authority rightly was not in a position to allow the petitioner to join his duty is a misconceived and a misplaced one. It was on this basis that the petitioner had filed the first writ petition and obtained an order. In such view of it the observation of the respondent no. 3 that the school authority rightly was not in a position to allow the petitioner to join his duty is a misconceived and a misplaced one. Moreover, the report of the investigating team having clearly found that the letter of the ex-secretary dated November 24, 1994 was not in conformity with the resolution adopted by the managing committee on November 21, 1994 the only conclusion that could be arrived at by the said respondent was that the secretary of the school by writing a letter not consistent with the resolution taken by the managing committee had in fact expressed his unwillingness to allow the petitioner to work. This was also the finding of this court in the earlier writ petition and the respondent no. 3 could not arrive at any conclusion contrary to the same. The respondent no. 3 also failed to approach it from the point of view of probable conduct of a human being. Regard being had to the common course of conduct it was unusual for the petitioner who was a permanent employee of the school and was serving as a Headmaster sit idle and writing one after another letter. The learned single Judge had concluded that there must have been something in it which was required to be looked into by the respondent no. 3 and in the process of rehearing the matter the Director of School Education found the petitioner guilty of the laches. The petitioner has already retired from his service in the year 2008. Therefore, neither does the question of his reinstatement nor does the question of allowing him to join the school can arise. The fact remains that the petitioner while working as a teacher was asked not to come to the school which has been established by this court in the earlier writ petition. After all he was not departmentally proceeded against. No disciplinary proceeding was drawn against him which rules out the possibility of some improper act on his part. He was not even placed under suspension. He was simply not allowed to join by the managing committee and that went final. After all he was not departmentally proceeded against. No disciplinary proceeding was drawn against him which rules out the possibility of some improper act on his part. He was not even placed under suspension. He was simply not allowed to join by the managing committee and that went final. In such view of it I find sufficient substance in the submissions made by the petitioner and the order impugned had failed to take into consideration the relevant factors. Thus the order impugned cannot stand and the same is hereby set aside and quashed. However, this takes us to the consideration of a related problem arising out of the quashing of the order impugned. After such a distant period of time it may well-nigh be impossible for the respondents authorities to calculate the arrear salary of the petitioner for the entire period from the date when he was asked not to come to the school till the date of his retirement. This calls for fixation of pay of the petitioner from time to time after taking into account the pay revisions, various financial benefits sanctioned from time to time, the amount of salary he would have had drawn had be been allowed to work, and a host of other factors. I think the ends of justice will be sub-served if the respondents are directed to pay to the petitioner a consolidated sum of Rs. 20 lacs as arrear of salary in lump sum within a period of six weeks from the date of the communication of the order. However, it is made clear that the petitioner should be deemed to have retired while in service and the respondents are directed to calculate his retiral dues and pensionary benefits on the basis thereof. The respondents are directed to pay the pension to the petitioner as early as possible. The writ petition is disposed of. There shall, however, be no order as to costs.