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2015 DIGILAW 772 (GAU)

Motilal Verma v. State of Assam

2015-06-18

MANOJIT BHUYAN

body2015
JUDGMENT Manojit Bhuyan, J. - Heard Mr. G.P.Bhowmik, learned senior counsel assisted by Ms. P. Chetia, learned counsel representing the petitioner as well as Mr. U. K. Goswami, learned counsel representing respondent nos. 1, 2 and 3. Also heard Mr. S.Chamaria, learned counsel representing respondent no.4. 2. At the relevant time, Sri Durga Mandir Hindi High School, Paltanbazar, Dibrugarh was an aided Educational Institution and in so far as conduct and discipline of the employees are concerned, the same was governed under the Assam Aided Educational Institutions and Higher Secondary Schools and High Madrassa (Conduct & Discipline of the Employees) Rules, 1960. 3. The petitioner was appointed as an Assistant Teacher on 15.9.92 and same received approval of the Managing Committee thereafter. The fact that the petitioner was working on regular basis is itself apparent from the order dated 14.6.2002 of the Director of Secondary Education, Assam by which the Headmaster of Sri Durga Mandir Hindi High School was asked to release teachers appointed on regular basis to undergo a course of B.Ed training. Amongst the teachers so selected, the name of the petitioner also finds mention in the list. For all intents and purposes the petitioner was an employee of the school receiving maintenance grant from the Government. 4. On 1.6.204 the petitioner was placed under suspension for his alleged indecent behaviour towards a girl student of the School. The petitioner was placed under suspension with immediate effect pending enquiry of the complaint made by the girl student as to its genuineness. It was also made clear that the petitioner will not be allowed to enter the premises of the school except on such occasion when he is required to appear before the Enquiry Committee. Until January, 2005 the petitioner was receiving subsistence allowance and stoppage of subsistence allowance thereafter prompted the petitioner to make a representation before the Director of Secondary Education, Assam on 30.11.2007. 5. The petitioner had the occasion to challenge the order of suspension in W.P.(C)No.1309/2008 and from the affidavit-in-opposition filed by the respondent no.4 he came to learn that the Managing Committee had set up an Enquiry Committee comprising of 4 (four) members on 1.6.2004 to look into the matter. Further, on 16.7.2005 a show cause notice had also been issued to the petitioner asking him to give a written reply as the said Committee had submitted adverse finding against him. Further, on 16.7.2005 a show cause notice had also been issued to the petitioner asking him to give a written reply as the said Committee had submitted adverse finding against him. Further, that on 1.8.2005 the Managing Committee had adopted a resolution to dismiss the petitioner from service w.e.f. 1.8.2008. 6. The said information along with copies of the relevant orders having come to the knowledge of the petitioner from the affidavit-in-opposition filed by the respondent no.4 in W.P.(C)No.1309/08 and the same giving rise to fresh cause of action, the present proceedings have been instituted. 7. At the outset, Mr. G.P. Bhowmik submits that the finding of the Enquiry Committee, the show cause notice dated 16.7.2005 as well as order of dismissal dated 1.8.2005 was never made known to the petitioner. Further, at no stage, the petitioner was afforded any opportunity to defend himself, far from being provided with a copy of the complaint of the girl student. Mr. Bhowmik submits that the entire process culminating in dismissal from service was done behind the back of the petitioner by ignoring all canons of law. Learned senior counsel refers to Rule 3 of the aforesaid Rules, 1960 to say that even at the time when he was placed under suspension on 1.6.2004, the appointing authority ignored compliance of the statutory provisions, in that, he was placed under suspension without prior approval of the Inspector of Schools. Referring to Section 4 of the said Rules, 1960, which provides for penalties that can be imposed upon any employee by the authority which appoints him/her, it is submitted that his dismissal from service is also contrary to the statutory provisions, in that, he was neither given any reasonable opportunity of showing cause against the action proposed to be taken nor approval of the Inspector of schools was taken. On both counts, learned senior counsel submits that the order of suspension as well as the order of dismissal is without any legal basis and, therefore, cannot stand the scrutiny of law. 8. In sum and substance, Mr. Bhowmik, learned senior counsel submits that the entire procedure culminating in the order of dismissal was done by blatantly disregarding the statutory provisions under the aforesaid Rules, 1960 and to the cardinal principles of audi alteram partem rule of natural justice. 9. Mr. 8. In sum and substance, Mr. Bhowmik, learned senior counsel submits that the entire procedure culminating in the order of dismissal was done by blatantly disregarding the statutory provisions under the aforesaid Rules, 1960 and to the cardinal principles of audi alteram partem rule of natural justice. 9. Mr. S.Chamaria, learned counsel representing respondent no.4 submits that the writ petition is not maintainable in the present form. To that end, Mr. Chamaria relies upon the order dated 10.11.2016 passed in W.P.(C)No.5501/2006 as well as in the case of Abdul Gafur Mondal v. State of Assam & ors, reported in 2015 (2) GLT 337. It is submitted that since the school in question is not under the control of the governmental authority in respect of appointment and termination of the employees of the school, as such, any order passed by the Managing Committee is not amenable under Article 226 of the Constitution of India. It is also submitted that the school in question being a purely private body, judicial intervention in the exercise of power of judicial review cannot be extended to the internal matters of the Institution, such as disputes relating to appointment, seniority, or decision of the Managing Committee etc. While on this point, it is clarified that the school in question is not a purely private body but an aided school where the conduct and discipline of the employees are governed under the aforesaid Rules, 1960. In the same breath, it would be worthwhile to mention that in the order dated 10.11.2006 passed in W.P.(C)No.5501/2004, an observation was made that the School Managing Committee in that particular school was not governed by any statutory rules nor the termination of services of the petitioner required any approval of any Government Officer. In the instant case, and in terms of Rule 3 and Rule 4 of the aforesaid Rules, 1960 the prior approval of Inspector of Schools concerned has been made mandatory. Even in the Full Bench decision reported in 2015 (2) GLT 337, it has been made clear that a remedy by way of a writ will be available when there is a violation of statutory provision or where decision of non-government Educational Institutions affect public interests. In the instant case, one of the issue is as to whether or not the statutory provisions under Rule 3 and Rule 4 of the aforesaid Rules, 1960 had been violated. 10. In the instant case, one of the issue is as to whether or not the statutory provisions under Rule 3 and Rule 4 of the aforesaid Rules, 1960 had been violated. 10. Mr. S. Chamaria, learned counsel also submits that Rule 4 of the aforesaid Rules, 1960 does not come to the aid of the petitioner, inasmuch as, the action of the respondent no.4 is saved by the proviso (ii) of Rule 4 thereof. It is contended that dismissal of the petitioner from service without giving reasonable opportunity was in view of the fact that it was not reasonably practicable to give the petitioner an opportunity of showing cause. An attempt has also been made to say that initial appointment of the petitioner was not in accordance with the provisions under the Assam Aided High and Higher Secondary Schools and High Madrassa Employees Rules, 1960. The records pertaining to the case and produced by Mr. S. Chamaria has been perused. The said records do not give out a shred of information with regard to granting any opportunity to the petitioner before he was dismissed from service. The records do not indicate supply of copy of the complaint to the petitioner nor service of the show cause notice to the petitioner nor any reason being recorded to show why it was not practicable to give the petitioner any opportunity of showing cause. The only document that is available on record is an endorsement of an office peon saying that receipt of the show cause notice was refused by the petitioner. Apart from this, there is no material to show that after the fact-finding Report of the Enquiry Committee any charges had been framed or statements of allegations served upon the petitioner. The entire process culminating in dismissing the petitioner, undoubtedly, points to the fact that no opportunity whatsoever was granted to the petitioner. 11. Rule 4 of the aforesaid Rules gains utmost relevance for just adjudication of the case and the same is extracted hereunder. "4(a) The following penalties may for good and sufficient reasons be imposed upon any employee by the authority which appoints his/her- (i) Censure; (ii) Withholding of increment; (iii) Reduction in rank; (iv) Recovery from pay; (v) Removal from service, which ordinarily disqualify from future employment; (vi) Dismissal from service, which ordinarily disqualify from future employment. "4(a) The following penalties may for good and sufficient reasons be imposed upon any employee by the authority which appoints his/her- (i) Censure; (ii) Withholding of increment; (iii) Reduction in rank; (iv) Recovery from pay; (v) Removal from service, which ordinarily disqualify from future employment; (vi) Dismissal from service, which ordinarily disqualify from future employment. (b) None of these penalties shall be imposed on an employee until he/she has been given reasonable opportunity of showing cause against the action proposed to be taken in regard to him/her, and without approval if the Inspector of schools: Provided that this clause shall not apply,- (i) Where a person is dismissed or removed or reduced in rank of the ground of conduct which had to his/her conviction on a criminal charges; (ii) Where the authority empowered to dismiss or remove an employee or to reduce him/her in rank is satisfied that for special reasons to be recorded in writing, it is not reasonably practicable to given to that person opportunity of showing cause; or (iii) When the appointing authority is satisfied that in the interest of the Institution or security of the State, it is not expedient to give the persons such an opportunity." 12. From the provisions above, it is abundantly clear that none of the penalties indicated therein is to be imposed on an employee without affording reasonable opportunity of showing cause against the action proposed to be taken and also without approval of the Inspector of Schools. In the instant case the said statutory provisions have been given a go-bye. The respondent no.4 also failed to show that least opportunity was given to the petitioner prior to dismissing him from service. 13. Having noticed the facts above as well as the provisions of law it leaves no room for doubt that the order of dismissal dated 1.8.2005 was a culmination of improper and illegal decision-making process. The same was in violation of Rule 4 of the aforesaid Rules, 1960 and that of the principles of natural justice. In that view of the matter the said order of dismissal cannot stand the scrutiny of law and is liable to be set aside, which is accordingly done. The order of dismissal having been set aside, the respondent-authority i.e. the Inspector of Schools, Dibrugarh shall ensure that the petitioner is reinstated in service. In that view of the matter the said order of dismissal cannot stand the scrutiny of law and is liable to be set aside, which is accordingly done. The order of dismissal having been set aside, the respondent-authority i.e. the Inspector of Schools, Dibrugarh shall ensure that the petitioner is reinstated in service. Also, the respondent no.4 shall take steps to take back the petitioner into service. In so far as back wages is concerned, this Court refrains from passing any order to that effect. However, it is made clear that the date from which the petitioner was placed under suspension and till his reinstatement in service shall count towards his continuation in service. 14. The exercise as indicated above shall be completed by the Inspector of Schools, Dibrugarh (Respondent No.3) and the Managing Committee (Respondent No.4) within a period of 4 (four) weeks from the date of receipt of a certified copy of this order. 15. The petitioner is permitted to produce a copy of this order before the Inspector of Schools, Dibrugarh as well as to the respondent no.4 for their doing the needful. 16. In view of the above, this writ petition stands allowed, however, without any order as to costs.