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2016 DIGILAW 727 (CAL)

Anita Nigam v. State of West Bengal

2016-09-16

SIDDHARTHA CHATTOPADHYAY

body2016
JUDGMENT : Siddhartha Chattopadhyay, J.: The petitioners herein have filed this writ application in the nature of mandamus and called in question the legality and validity of the Memo No. OLP/50/2016 dated June 23, 2016, OLP/47/2016, OLP/48/2016 both dated 23rd May, 2016 and also Rule 19 and Rule 20(iii) of the service rules regarding ‘Terms of employment of service conditions of teaching and non-teaching staff’ and prayed for a direction upon the respondent authorities not to give an effect to those memo numbers and the said service rules as mentioned hereinabove. 2. According to the writ petitioner, the said memo numbers were issued to them arbitrarily and violated the principles of natural justice as well as the stipulation of Rule 19 and Rule 20(iii) of their terms and conditions are unconstitutional. 3. As against this, the respondent attacked the grounds of relief, and has submitted that no writ application lies before this Court since the institution is not run by the state or there was ever any funding from the state and it is absolutely a non-aided school. He had also supported the contention of the Memo Nos. OLP/50/2016, OLP/47/2016 and OLP/48/2016 and contended that those memo numbers were issued by the school authority in terms of their rules and regulations and there is no illegality in it. Supporting the said memo numbers, he contended that an advocate has been appointed as enquiry officer does not mean that the said advocate will act on behalf of the disciplinary authority. He categorically submitted that an advocate is supposed to be an unbiased person and he shall adjudicate the departmental proceedings with the assistance of the presenting officer and also in presence of the delinquent writ petitioner. So there is no scope of apprehension of any violation of principles of natural justice. He wondered by saying that how the present writ petitioner apprehends that the said advocate would be biased. By virtue of the said Memo Nos. OLP/50/2016, OLP/47/2016 and OLP/48/2016 two advocates have been appointed by the disciplinary authority for domestic enquiry in regard to several charges against the writ petitioners. He contended that Rule 19 and Rule 20(iii) are in the ‘Terms of employment of service conditions of teaching and non-teaching staff’ of the said institution and before accepting the job of assistant teacher, they have accepted the said rules and regulations. He contended that Rule 19 and Rule 20(iii) are in the ‘Terms of employment of service conditions of teaching and non-teaching staff’ of the said institution and before accepting the job of assistant teacher, they have accepted the said rules and regulations. According to him, in such circumstances, such challenges do not lie in their mouths. Since they have accepted the rules and regulations of the authority concerned and, as thereafter they were appointed, so they cannot challenge the said circulars at this stage. In fine he has prayed for dismissal of the writ application with cost. 4. Learned Counsel appearing on behalf of the writ petitioner contended that they should be represented by their advocates to defend their rights. Assistance of a law knowing person cannot be taken away. He categorically submitted that when the enquiry officer is a law knowing person, in such cases they should be represented by a lawyer also. Their such prayer was turned down by the disciplinary authority most arbitrarily. After hearing rival submission of the parties of this Court, this Court is called upon to answer: (a) If any writ application lies against an unaided school? (b) Whether appointment of advocate shall be made by the delinquent to defend their cases, when particularly the enquiry officer is an advocate in view of Rule 19? (c) If Rule 20(iii) are violative of fundamental rights or not? “Point No.(a)” 5. Learned Counsel appearing on behalf of the respondent’s school vehemently opposed the application on the ground that it is not maintainable. According to him, the said respondent school is an unaided institution and is in no way connected with the state or affairs of state. He categorically submitted that Article 12 is not applicable here and naturally question of writ does not lie. Apparently there is some substance in his such submission, but if we dip beneath the surface we would find something else. It is accepted principles of law that if the rights and duties are purely of a private character no mandamus lies and when management of the present school is purely a private body. But if such private body discharges a ‘public duty’ in that case mandamus shall lie. This apart, when the party has no other efficacious remedy in that case a mandamus cannot be denied. There is thin but distinct difference between Article 32 and Article 226 of the Constitution. But if such private body discharges a ‘public duty’ in that case mandamus shall lie. This apart, when the party has no other efficacious remedy in that case a mandamus cannot be denied. There is thin but distinct difference between Article 32 and Article 226 of the Constitution. The term ‘authority’ is used in Article 226 must receive a liberal meaning. It cannot be equated with the term used in Article 12. It is trite law that Article 12 is of a great importance only for the purpose of enforcement of fundamental rights under Article 32 but Article 226 bears the words ‘any person and authority’, which can be explained in such way that it should not be limited to statutory authorities and instrumentalities of the state. It may cover any other person or a statutory body or a private body, who are entrusted with or who are by nature of their institution are discharging ‘public duty’. So a writ court should examine the nature of the duty imposed on the body. The said duty must be considered in the light of positive obligation. If a positive obligation is there, refusal of mandamus certainly hit the tenets and the basic fabric of the society. When an aggrieved party may not have a relief under Article 32 that does not give an undue advantage to the other. In our jurisprudence when there is a right, there is a remedy. It is perhaps needless to say that the scope of Article 226 is much wider than that of Article 32 of our constitution. If a private body discharges ‘public function’, in that case High Court assumes its jurisdiction under Article 226 of the Constitution. The respondent’s school is imparting education to many students and that too for a considerable years. Naturally they discharge such functions which are more akin to ‘public functions’. Therefore, in my considered view, writ petition is very much maintainable. “Point No.(b)” 6. There can be no reason to hold at this stage that the enquiry officer and advocate shall be biased and shall show his biasness towards the disciplinary authority and be cynical to the defence of the charged employees i.e. the writ petitioners. Actually this is not expected of a lawyer that when he is appointed he shall take a ‘biased stand’ to his appointing authority. He is expected to be independent and unbiased. Actually this is not expected of a lawyer that when he is appointed he shall take a ‘biased stand’ to his appointing authority. He is expected to be independent and unbiased. If any biasness is shown by the advocate/enquiry officer either impliedly or explicitly, during the domestic enquiry in that case they could argue about biasness after showing sufficient cause and proved instances of biasness. But that stage has not yet come before this writ Court. But one thing should not be lost sight of, whether the said Rule 19 be applicable here or not. This is to be discussed in c/w Point No. ‘c’. “Point No.(c)” 7. In the interest of effective adjudication Rule 19 is reproduced below: ‘No legal practitioner shall be allowed to represent the member of the staff or the managing committee of the school in proceedings under Clause 16(c). However, if a member of the staff or a managing committee is a legal practitioner she/he entitled to represent the staff, Managing committee of the school as the case may be in such proceedings, on condition that both parties can be represented by a legal practitioner. Grade IV employee shall be at liberty to choose to be represented by another member of the staff of her/his choice to conduct her/his defense in her/his place.’ 8. On a plain reading of the said rule, it is crystal clear that no legal practitioner should be allowed to represent the delinquent or the managing committee in connection with proceeding under Clause 16(c). Now, Clause 16(c) has to be considered also here for giving an effect to Rule 19. The said Rule is reproduced below: 16. Procedure for imposing Minor Penalties. 9. ‘Orders imposing any of the penalties specified in clauses 14(i) b-c and 14(ii) a. The member of the staff has been informed in writing by the head of the institution, of the proposed action to be taken against her/him and the allegation on which it is proposed to be taken, and given an opportunity to make a representation. b. The head of the school has considered the representation, of any of the staff concerned. c. The managing committee has considered the report of the head of the school and the representation of the staff concerned and has concurred in regard to the penalty proposed to be inflicted by the head. b. The head of the school has considered the representation, of any of the staff concerned. c. The managing committee has considered the report of the head of the school and the representation of the staff concerned and has concurred in regard to the penalty proposed to be inflicted by the head. The staff member is however free to appeal to the Founder body, whose decision shall be final.’ Therefore, it relates to imposition of minor penalties and Rule 16(c) speaks the managing committee, after considering the report of the head of the school and the representation of the staff concerned, if concurred in the penalty proposed to be inflicted by the head, in that case legal practitioner is debarred. Therefore, if any minor penalty is given and is recommended by the head, in that case managing committee has to consider the report of the head of the school and the representation of the staff concerned. Now, I am to consider what are the minor penalties. Rule 14 is reproduced herein below: 14. Penalties. 10. ‘Minor penalties. (a) A warning either oral or written (b) Recovery of damage or loss incurred by the school (c) Suspension of duty without pay for one week (7 days)’ 11. Therefore, if we read Rule 14, Rule 16(c) along with Rule 19, it is crystal clear that no legal practitioner shall be allowed if a minor penalty has been recommended in terms of Rule 16(c). That minor penalty, if proposed by the head of the institution and concurred by the managing committee in that case legal practitioner shall not be allowed to represent. Therefore, if the minor penalties such as a ‘warning either oral or written’, ‘recovery of damage or loss incurred by the school’ and ‘suspension of duty without pay for one week’ is imposed and if the head of the institution proposed such penalty and if the managing committee accepts that recommendation, in that case legal practitioner should not be allowed to participate to represent the staff concerned. Therefore, in terms of the rule of the said institution, it cannot be said that assistance of legal practitioner cannot be utilized by the delinquent employees, except in case of minor penalties. But in respect of major penalties, the delinquent teacher and non-teaching staff can very well avail it. 12. Therefore, in terms of the rule of the said institution, it cannot be said that assistance of legal practitioner cannot be utilized by the delinquent employees, except in case of minor penalties. But in respect of major penalties, the delinquent teacher and non-teaching staff can very well avail it. 12. In course of hearing learned Counsel appearing on behalf of the writ petitioner contended that he has not been given subsistence allowance in terms of a draconian Rule 20(iii). According to the learned Counsel appearing on behalf of the writ petitioner in terms of Rule 20 (which relates to suspension) first two months on the period of suspension the employee concerned is entitled to get 50% of the total emoluments to be paid by the school. It is also there, that if there is a delay on the part of the managing committee beyond two months in arriving at a decision the subsistence allowance will continue to be paid at the rate of 75% of the total emoluments until the managing committee communicates its decision to the employee concerned. In Rule 20(iii) ‘the subsistence allowance is not payable beyond the period of two months, if the delay in arriving at a decision is due to no fault of the managing committee, as for example, by a delay caused by the staff member concerned or a Court case instituted by the staff member under suspension.’ By insertion of the words ‘or a Court case instituted by the staff member under suspension’ meaning thereby that if an employee goes to the Court for establishing his right in that case subsistence allowance will not be payable beyond a period of two months. This is absolutely opposed to the public policy on the ground that no institution can prevent its employees to go before the Court for establishing his right. Nobody can predict when the litigation will come to an end. Therefore, in my considered view, by insertion of these words ‘or a Court case instituted by the staff member under suspension’ is absolutely unconstitutional and it virtually takes away the fundamental right of a citizen of India. If the delay was caused by the act of the employee concerned (other than litigation) in that case the authority concerned could have invoked such rule. If the delay was caused by the act of the employee concerned (other than litigation) in that case the authority concerned could have invoked such rule. But if a litigation is pending and that too for establishing a legal right by an employee, the authority concerned cannot deny the subsistence allowance on the ground that the subsistence allowance is being paid, so that the employee concerned can earn minimum bread and butter to maintain himself as well as his family members, if any. Therefore, I have no option left with except to give a direction to the authority concerned (present respondent) to delete the following words ‘or a Court case instituted by the staff member under suspension’ from their Rule 20(iii) and this has to be done within two months from the date of this order. Therefore, this point is answered in the affirmative that Rule 20(iii) are violative of fundamental rights. 13. In the result, the writ petition is allowed and accordingly Memo Nos. OLP/50/2016, OLP/47/2016 and OLP/48/2016 are hereby set aside. The authority concerned is at liberty to proceed with the disciplinary proceeding in terms of the observation and direction made in the body of the judgment. They are also hereby directed to release the subsistence allowance to the tune of 75% including arrear from the date, when it has been stopped, within two months from this date. Accordingly, this writ application is allowed. 14. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.