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2019 DIGILAW 582 (CAL)

Indrani Raha Sarkar v. State of West Bengal

2019-05-08

ABHIJIT GANGOPADHYAY

body2019
JUDGMENT : 1. The petitioner alleges illegal termination of her service from the School where he worked as an Assistant Teacher. The name of the School is Salt Lake School (English Medium) run by a Society namely 'Salt lake School (English Medium) Society'. 2. The petitioner states that she was appointed as a teacher of the said School on 30th March, 2010 (which is incorrect as in the appointment order of the School dated 13th March, 2010 (annexed to the writ application) her date of appointment has been shown as 1st April, 2010). Her service has been terminated with effect from 16th July, 2013 by a letter dated 15th July, 2013 issued by the School, signed by the Secretary of the School. 3. From the affidavit-in-opposition filed by the School (respondent No. 4) it is found that the petitioner was initially appointed as a contractual teacher from 29th August, 2008 to 31st March, 2009 which was renewed from 6th April, 2009 up to 31st March, 2010 and finally from 1st April, 2010 the petitioner was appointed as an Assistant Teacher (in Primary section) in the Primary scale of pay band. 4. The petitioner has stated that her service was governed by the provision of the Code of Regulations for Anglo-Indian and other listed School, 1993 which has not been denied by the School in its affidavit- in-opposition and thus it is an admitted position that the School is regulated by the Code of regulations for Anglo-Indian and other listed School, 1993 (the Code, in short, hereafter). The petitioner has submitted that she was a confirmed staff of the School and without following the procedure laid down in the Code her service has been terminated without holding any disciplinary proceeding as mentioned in the said Code for disciplinary action against confirmed staff. 5. Petitioner has also alleged that she was not given any Class in the academic year 2013-2014 and she has disclosed a letter of the teachers' representatives dated 3rd April, 2013. In the said letter of the teachers' representatives of the School to the President of the School, inter alia, the following has been written: "Mrs. Indrani Raha Sarkar, one of the most popular teachers of morning section has been allotted no Class at all which is one type of mental torture. We as Teachers' representatives strongly object to this type of humiliation to a teacher. Indrani Raha Sarkar, one of the most popular teachers of morning section has been allotted no Class at all which is one type of mental torture. We as Teachers' representatives strongly object to this type of humiliation to a teacher. We apprehend a conspiracy against her". (Emphasis theirs) 6. From the writ application I find that on 13th February, 2013 a letter was given to the petitioner by the Principal of the School in respect of not taking the Bengali recitation test of a student of Class-I C which was to be taken on 13th January, 2013, was not taken till 11th February, 2013. In the said letter explanation given by the petitioner in this respect was recorded but the Principal found some difference between the petitioner's and the student's statement. However, the Principal directed the petitioner to explain in writing justifying the position of the petitioner and why any action would not be taken against her by the School authority for the said incident. No document has been disclosed by the School in this proceeding to show that in this respect any disciplinary action was taken against the petitioner. 7. A letter of the President of the School dated 8th July, 2013 has been annexed to the writ application wherefrom it is found that a disciplinary proceeding was initiated as per resolution adopted on 24th April, 2013 in the meeting of the executive council of the School etc. and the petitioner was directed to appear before the President on 11th July, 2013 at 5.00 p.m. for presenting the petitioner's version. From another annexure of the writ application which is a letter of the Secretary of the School dated 15th July, 2013, the following is found from the first paragraph thereof: "the enquiry committee, before which you appeared on 11.07.2013 (Thursday) at 5.00 p.m., had found your reply unsatisfactory and in the E.C. meeting held today i.e. on 15.07.2013 it was unanimously decided that, your service as Assistant Teacher has been terminated with effect from 16.07.2013". 8. Thus the service of the petitioner was terminated. From the affidavit-in-opposition of the School (affirmed by the Principal) School's stand as to the confirmation of the petitioner's service comes to light. 8. Thus the service of the petitioner was terminated. From the affidavit-in-opposition of the School (affirmed by the Principal) School's stand as to the confirmation of the petitioner's service comes to light. In paragraph 9 of the said affidavit-in- opposition it has been sated, inter alia, that : "her service was not confirmed as several complaints have been received and in violation of Employee Code of Conduct. Still she was allowed to continue her service by the School authority and thereafter in view of her insubordinate attitude and false lebelling (Sic.) of allegations against School office-bearers, she was issued letters asking for explanation and disciplinary procedures were initiated. Respondent No. 4 craves Leave to produce the entire case records relating to her service tenure in the School at the time of hearing". No record of disciplinary proceeding has been annexed to the affidavit-in-opposition of the School authority nor any such record was produced before the Court at the time of hearing of the matter. The School submitted at the time of hearing that everything would be clear from the minutes of the meeting of the executive council of the School dated 20th February, 2010 and it was directed to be produced by this Court, which was produced before this Court on 18th February, 2019 but absolutely nothing becomes clear from the said minutes of the meeting. Copy of the said minutes of the meeting has been taken on record. 9. Now, two questions arise for consideration by this Court. These are : (1) whether the petitioner's service was confirmed in the School as a teacher and (2) Whether her service was terminated after holding a disciplinary proceeding against her following the said Code. For deciding the first question the appointment order dated 30th March, 2010 issued by the School to the petitioner is to be considered. Relevant part of it states that : "2. She will have to undergo probation period of 2 (Two) years from the date of her joining, i.e., 01.04.2010. In case of unsatisfactory performance during the probationary period, the authority reserves the right to terminate her service, giving her one month's salary in advance. 3. Her confirmation in the service shall depend upon her overall performance and behaviour after completion of 2 (two) years in probation. 4. In case of unsatisfactory performance during the probationary period, the authority reserves the right to terminate her service, giving her one month's salary in advance. 3. Her confirmation in the service shall depend upon her overall performance and behaviour after completion of 2 (two) years in probation. 4. Her service, after confirmation can be terminated on issuing 2 (two) months' proper notice or on payment of salary for two months in lieu thereof, on either side. Normal service rules/codes which are applicable to any teacher of Govt. recognized/affiliated/D.A. getting schools including our own Code of Conduct shall be applicable, in her service matters. Prolonged and /or frequent absence without any intimation and/ or without reasonable grounds and unsatisfactory performances may lead to termination of service without assigning any notice". From the said relevant part of the appointment order it is found that the petitioner was placed for a probation period of two years and confirmation was dependent upon her overall performance and behaviour after completion of two years in probation. No document has been disclosed by the School before this Court to show that the overall performance and the behaviour of the petitioner were not satisfactory and that those were intimated to the petitioner during the two- year probationary period. Now Clause 21 (e) of the said Code is required to be considered, which is as follows: "(e) Ordinarily, a teacher appointed against a permanent vacancy will be placed on probation for one year from the date of appointment and such probation may be extended by NO MORE than one year thereafter. In all cases of teachers appointed on probation, a letter terminating the service or extending the period of probation, as the case may be shall be served to him/her, one month before the end of the probationary period failing which, the teacher will be deemed to be confirmed in that appointment". From the above regulation 21 (e) it is found that a teacher appointed in a permanent vacancy would be placed on probation for one year from the date of appointment. The School has not said that the petitioner was not appointed against a permanent vacancy. There is even no such whisper in the School's affidavit-in-opposition. From the above regulation 21 (e) it is found that a teacher appointed in a permanent vacancy would be placed on probation for one year from the date of appointment. The School has not said that the petitioner was not appointed against a permanent vacancy. There is even no such whisper in the School's affidavit-in-opposition. Therefore, according to the said Code, probation period is for one year from the date of appointment and it is also found from the said provision of the Code that probation may by extended by NO MORE than one year thereafter. In terms of the said provision of the Code the letter terminating the service or extending the period of probation had to be served upon the teacher one month before end of the probation period failing which the teacher will be deemed to be confirmed in that appointment. 10. As the School is governed under the said Code, if there is any contradiction between the School's conditions and the Code, the Code will prevail. 11. The School has not disclosed any such letter terminating the service during the period of probation or extending the period of probation of the petitioner as a teacher in the School. As no such letter has been disclosed before this Court and as there is no whisper about this in the affidavit-in-opposition of the School I hold that the petitioner was confirmed in that appointment. Thus the first question is answered accordingly i.e. the petitioner was a confirmed teaching staff of the School. 12. Regarding the second question, regulation 24 of the said Code is to be taken note of. Regulation 24: "Procedure for disciplinary action against confirmed staff:- (a) The Head will frame charges after giving sufficient warning on the basis of the allegation against a staff and will bring it immediately to the notice of Managing Committee. No warning will, however, be necessary for gross misconduct. (b) The Chairperson of the Managing Committee will appoint a person to conduct an enquiry. (c) The employee shall be supplied with a copy of the charges together with a statement of allegation on which the charges are based. No warning will, however, be necessary for gross misconduct. (b) The Chairperson of the Managing Committee will appoint a person to conduct an enquiry. (c) The employee shall be supplied with a copy of the charges together with a statement of allegation on which the charges are based. (d) He/she will be required to submit within 10 days of the receipt of the charges and the statement of allegation a written statement to the Enquiring Officer in his/her defence and also to state whether he/she desires to be heard in person and adduce witnesses in his/her favour. He/she will have the right to have another person to defend him/her, if so desired, to adduce defence evidence. (e) The Enquiring Officer will prepare a report of the enquiry with his findings on each of the charges together with reasons thereof. (f) The enquiry report will then be sent to the Chairperson of the Managing Committee who will issue a show-cause notice with proposed penalties, if any, and the employee will be called upon to reply to the show-cause notice within a fortnight of the receipt of such notice. Thereafter, the Managing Committee will take a final decision about the penalty, if any, that should be imposed. Provided that any employee who is dismissed, removed or reduced in rank may, within a period of 90 days from the date of communication to him/her of the order of such dismissal, removal or reduction in rank, appeal against such order to the Tribunal constituted under Section 24A". 13. The petitioner has pleaded that there is no such Tribunal and this statement has not been denied by the School. 14. No documents has been disclosed by the School wherefrom it is found that disciplinary action under the said regulation was initiated or taken by the School against the petitioner. 13. The petitioner has pleaded that there is no such Tribunal and this statement has not been denied by the School. 14. No documents has been disclosed by the School wherefrom it is found that disciplinary action under the said regulation was initiated or taken by the School against the petitioner. There was neither any framing of charge after giving sufficient warning, nor appointment of a person to conduct the enquiry; no supply of copy of the charges together with the statement of allegation on which the charges were based to the petitioner and therefore there was no situation for the petitioner to give written statement to the Enquiring Officer as there was no Enquiry Officer ; there was no question of preparation of report of the enquiry by the Enquiry Officer ; there was also no question of sending the report to the Chairperson of the Managing Committee. 15. I hold that there was no disciplinary action under the said Code against the petitioner who was a confirmed staff. Instead of following the regulation 24 of the said Code the School only gave her a letter dated 8th July, 2013 as has been referred above and by a letter dated 15th July, 2013 (also referred above) her service was terminated. The School for reasons best known to it did not care to follow the provisions of the Code in this regard which the School was and is bound to follow. 16. Therefore, the second point is answered accordingly i.e. there was no disciplinary proceeding initiated by the School under the said Code against the petitioner. 17. I hold that the petitioner's service has been terminated illegally. For the reasons as aforesaid, the dismissal order passed by the School dated 15th July, 2013 dismissing the service of the petitioner with effect from 16th July, 2013 is set aside and quashed. It is evident from the pleading of the affidavit-in-opposition used by the School that there was no such serious dereliction of duty on the part of the petitioner for which disciplinary proceeding could have been initiated against the petitioner by the School. The School has not been able to show anything against the petitioner for which disciplinary action could be initiated against the petitioner by the School. 18. The School has not been able to show anything against the petitioner for which disciplinary action could be initiated against the petitioner by the School. 18. As there was no disciplinary action against the petitioner under the Code no order is and can be passed for initiating fresh disciplinary action against the petitioner for the period of her service up to the date of her termination i.e. 16th July, 2013. 19. It is a case where the petitioner is not at all at fault for not performing her duty as a teacher of the School. It is the School which most illegally debarred the petitioner from discharging her duty, as a Teacher of the School. And for this reason the petitioner has to be reinstated in service with full back wages from the date of her termination. 20. The School is directed to reinstate the petitioner as an Assistant Teacher of the School with all benefits from the date of her dismissal and to pay all the back wages to the petitioner and other benefits, monetary or otherwise, from the date of dismissal of the petitioner. 21. It is directed that the petitioner has to be reinstated in service by 30 days from the date of this order and all money that is to be paid by the School to the petitioner must be paid within a period 60 days from the date of this order. The entire amount of money to be paid to the petitioner shall carry an interest @ 6% per annum from the date of her termination to the date of payment of the entire money to the petitioner. If any payment has been made by the School to the petitioner as has been mentioned in the termination letter issued by the School dated 15th, July 2013 that amount of money is to be deducted from the entire amount of money to be paid as has been directed above to the petitioner. 22. The writ application is allowed with a cost of Rs. 5000.00 to be paid by the School authority to the West Bengal State Legal Services Authority within a period of one month from the date of this order and the receipt thereagainst has to be filed by the School to the Registrar General's office of this Court for keeping the same with the record of this case. 23. 5000.00 to be paid by the School authority to the West Bengal State Legal Services Authority within a period of one month from the date of this order and the receipt thereagainst has to be filed by the School to the Registrar General's office of this Court for keeping the same with the record of this case. 23. The writ application is allowed with the above order.