Judgment : 1. This petition is filed challenging the refusal on the part of the respondent school authorities to permit the petitioner to resume his duties as a school teacher upon his release on bail in view of the provisions of clause 'b' of Memo No.S/Adm/17 dated 19 January, 2007 read with Rule 28(8)(8b) of the Management of Recognized Non-Government Institution Aided and Non-Aided Rules, 1969 ("the Rules"). The petitioner has also challenged his letter of suspension dated 10 February, 2017, inter alia, suspending the petitioner for enjoying illegal and unauthorized leave and long absence. 2. The case of the petitioner is that he was appointed as an Assistant Teacher in 'Bengali' in Khidirpur High School, Village and P.O.- Khidirpur, P.S.-Balurghat, District-Dakshin Dinajpur, Pin-733103. The petitioner joined the school on 29 April, 2005. It is alleged by the petitioner that since the end of October 2016 he could not regularly attend the school due to the illness of his father. By an application dated 17 December, 2016 the petitioner applied for leave from the school authorities. Thereafter, as admitted in the writ petition the petitioner was shown to have been arrested in a criminal case on 7 January, 2017 and was ultimately released on bail on 4 February, 2017. By a letter dated 10 February, 2017 the petitioner was suspended. Upon release on bail, the petitioner, by representations dated 21 February, 2017 and 24 March, 2017, prayed to the school authorities to resume his duties. It is this action on the part of the school authorities in not permitting the petitioner to resume his duties that is the crux of the dispute between the parties. 3. It is alleged on the part of the respondents that the petitioner was involved in a case of smuggling of international snake venom. On 24 October, 2016 a warrant of arrest was issued against the petitioner and he was found to be evading arrest for sometime. On 4 November, 2016, after re- opening of the school after the Puja Vacation the petitioner continued to remain absent. The school authorities tried desperately to contact him but the petitioner was untraceable. On 7 November, 2016, a special messenger was sent to the house of the petitioner but the family members of the petitioner including the father of the petitioner refused to disclose anything about the whereabouts of the petitioner. The school authorities tried desperately to contact him but the petitioner was untraceable. On 7 November, 2016, a special messenger was sent to the house of the petitioner but the family members of the petitioner including the father of the petitioner refused to disclose anything about the whereabouts of the petitioner. This fact was intimated by the school authorities to the concerned District Inspector of Schools as well as the local police station on 8 November, 2016. By a letter dated 21 November, 2016, the petitioner was directed to report immediately to school since he had been absent without any intimation of leave. In response to the said letter, the petitioner informed the school authorities that he was in Kolkata from 4 November, 2016 for the treatment of his father. He reiterated his stand by another letter dated 21 February, 2017. The petitioner was ultimately found to have been arrested on 7 January, 2017. Thereafter, as per the decision of the Managing Committee dated 10 February, 2017 the petitioner was placed under suspension in contemplation of disciplinary proceedings in accordance with Rule 28(9)(viia) of the Rules. Thereafter, the school sent all the relevant papers to the West Bengal Board of Secondary Education for approval of the suspension order issued against the petitioner. The Board issued notices to the petitioner and the School Authorities for hearing the case for approval of the suspension. After hearing the respective parties, the Board approved the order of suspension and communicated the same to the petitioner by a letter dated 4 July, 2017. 4. Thereafter, the petitioner was charge-sheeted to which the petitioner responded on 18 April, 2017. An Enquiry Officer was appointed to enquire into the charge. At that stage, the petitioner filed a writ petition being WP No.13283 of 2017 challenging appointment of the Enquiry Officer on the ground that the Managing Committee had no power to appoint any Enquiry Officer without approval of the Board. By an order dated 18 May, 2017, passed in WP 13283 of 2017, this Court set aside the notice dated 24 April, 2017 issued by the Enquiry Officer and also set aside the appointment of the Enquiry Officer. However, the Managing Committee of the school was granted liberty to proceed in the matter from the stage of consideration of the reply given by the petitioner to the charge-sheet. However, the Managing Committee of the school was granted liberty to proceed in the matter from the stage of consideration of the reply given by the petitioner to the charge-sheet. In terms of the leave granted pursuant to the order dated 18 May, 2017 the Managing Committee considered the reply of the petitioner and decided to proceed with the departmental proceedings and sent all the papers to the Board for approval of the departmental proceedings i.e. the first stage against the petitioner. 5. Thereafter, a reminder was sent to the Board on 28 November, 2017. Despite several reminders given by the school authorities to the Board on 4 December, 2017, 9 March, 2018, 1 August, 2018, 8 February, 2019, 6 April, 2019 and 19 July, 2019 for approval of departmental proceedings, no final decision has yet been taken by the Board. It is submitted on behalf of the school authorities that the school authorities are still awaiting the final decision of the Board to proceed further with the disciplinary proceedings. In the meantime it is an admitted position that by a letter dated 12 May, 2017 the Deputy Secretary (Administration), West Bengal Board of Secondary Education had forwarded an order passed by the President, West Bengal Board of Secondary Education approving the proposal for suspension forwarded by the President of the school against the petitioner. 6. Counsel on behalf of the petitioner submitted that according to the petitioner the only issue involved in this petition is whether the writ petitioner is legally entitled to resume his duties in the school on and from 5 February, 2017. It is submitted on behalf of the petitioner that in view of sub-clause 'b' contained in the Memo dated 19 January, 2007 the respondent school authorities are legally obliged to allow the writ petitioner to resume his duties forthwith. The petitioner relied on a decision reported in 2004 (1) CHN 32 (Basudev Malik vs. State of West Bengal & Ors.). The petitioner further states that the decision reported in 2009 (1) CHN 476 (Birbhum District Primary School Council & Anr. vs. Md. Mokhtar Hossain & Ors.) does not apply in the present case since Memo No.S/Adm./17 dated 19 January, 2007 was not taken into consideration. The petitioner has placed strong emphasis on the subsequent Memo dated 19 January, 2007 clarifying Rule 28(8)(b) of the Rules. vs. Md. Mokhtar Hossain & Ors.) does not apply in the present case since Memo No.S/Adm./17 dated 19 January, 2007 was not taken into consideration. The petitioner has placed strong emphasis on the subsequent Memo dated 19 January, 2007 clarifying Rule 28(8)(b) of the Rules. It is submitted on the basis of the Memo that the deeming provision of Rule 28(8)(8b) of the Memo dated 19 January, 2007 is clarificatory in nature and in terms of the said Memo the school authorities are obliged to permit the petitioner to resume his duties. The petitioner also relied on a decision reported in 2009 (2)CHN 88 (Abdul Kalam Mallik vs. State of West Bengal). 7. Counsel on behalf of the State supported by counsel on behalf of the school authorities, submitted that the order of suspension has attained finality since the West Bengal Board of Secondary Education had approved the same after hearing of the parties. It was further submitted that since the West Bengal Board of Secondary Education is not a party to the writ petitioner, no order can be passed in the absence of the West Bengal Board of Secondary Education. It was further submitted that under the Rules there are two categories of suspensions which are distinct and separate in nature. One class or type of suspension occurs under Rules 28(9)(viia) and the other class or type of suspension occurs under Rule 28(8)(8b). The respondent contends that all the guidelines enumerated under the Rules have been strictly adhered to by the respondent authorities in issuing the suspension order against the petitioner. The primary submission on behalf of the respondents rests on the fact that the initiation of the Departmental Proceedings by the respondent authorities against the petitioner has not been made the subject matter of challenge in the present writ petition. All the papers in terms of the departmental proceedings initiated against the petitioner had been forwarded to the Board and the same are awaiting approval. All the judgments cited by the petitioner are distinguishable on facts since all of them dealt with the deemed suspension under Rule 28(8)(8b) and not under Rule 28(9)(viia). It was further submitted on behalf of the respondent that the decisions reported in 2004 (1) CHN 32 (Basudev Malik vs. State of West Bengal & Ors.) had been overruled by the Division Bench in 2009 (1)CHN 476 (Birbhum District Primary School Council & Anr. It was further submitted on behalf of the respondent that the decisions reported in 2004 (1) CHN 32 (Basudev Malik vs. State of West Bengal & Ors.) had been overruled by the Division Bench in 2009 (1)CHN 476 (Birbhum District Primary School Council & Anr. vs. Md. Mokhtar Hossain & Ors. at para 24). 8. For the sake of convenience, the relevant Rules and Regulation are set out hereinbelow: 28(8)(8b):-In the case of teaching and non-teaching staff of an institution detained in custody for a period exceeding 48 hours under any law providing for preventive detention or as a result of a proceeding for preventive, detention or as a result of a proceeding either on a criminal charge or otherwise, such staff shall be deemed to have been suspended by an order of the appointing authority, with effect from the date of detention and shall remain under suspension until further orders. A teaching or non-teaching staff who is undergoing a sentence of imprisonment shall also be dealt with in the same manner, pending a decision on the disciplinary action to be taken against him. 28(9)(viia):-To suspend a teacher or an employee where such suspension is in the interest of the Institution, pending drawal of proceedings against the person concerned within ninety days from the date of suspension and during the period of suspension, the persons concerned shall be paid pay and allowances equal to fifty per cent of the pay and allowances drawn by him immediately before such suspension. Such steps shall be referred to the Board within seven days of such action for approval. The person affected by the decision of the Committee may, however, make his/her representation to the Board. Such steps shall be referred to the Board within seven days of such action for approval. The person affected by the decision of the Committee may, however, make his/her representation to the Board. The order of suspension shall automatically stand withdrawn in case proceedings are not drawn within a period of ninety days, provided that in exceptional circumstances this time-limit may be waived by the Board after due consideration of the facts of the case, but under no circumstances the time-limit shall be waived beyond the limit of one year: Provided that where the period of suspension exceeds 90 days, the amount of subsistence allowance shall be increased after the expiry of ninety days to seventy-five per cent of the pay and allowances drawn immediately before such suspension: Provided further that the person concerned shall not be entitled to any subsistence allowance if he/she accepts employment during the period of suspension elsewhere. West Bengal Board Of Secondary Education Memo No:S/Adm?17 Date:19.01.2007 To: (a) The Heads of All Recognised Schools under WBBSE. (b) The Administrators/Secondary of all Recognised Schools under WBBSE. (c) District Inspector of Schools (SE). Sub: Clarification in regard to Rule 28(8)(b) of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969. The specific legal position of Rule 28(8)(b) of the Management of Recognised Non-Govt. Institution (aided & unaided) Rules, 1969 is enumerated below: (a) In case, where a teaching or a non-teaching staff of any school of above category is detained in custody for a period exceeding 48 hours under any law as indicated therein the suspension is automatic with effect from the date of his being taken into custody or detention. The Managing Committee of the school being the appointing authority of the incumbents as mentioned above, shall issued a suspension order to the incumbent and intimate the same to the Board as per the provision alongwith the relevant documents and manner as entailed in S/606, dated 21.06.1982 alongwith the detention order issued by appropriate authorities for information within fifteen (15) days of the action taken. In this case the Managing Committee of the school is not required to take any approval of the Board but shall send the papers for intimation of suspension for information and recording to the Board. In this case the Managing Committee of the school is not required to take any approval of the Board but shall send the papers for intimation of suspension for information and recording to the Board. (b) Consequently, when the incumbent so detained is released from custody the Managing Committee of the school shall permit him/her to join the post in which he/she was serving before detention. Here also the Managing Committee of the school shall forward all the papers including the Hon'ble Court's release order to the Board for information and noting. In this case also the Managing Committee of the school is not required to take any permission from the Board for this action. However in both the cases it is imperative that the relevant papers be sent to the Board for record.(emphasis supplied) (c) In case, where a teaching or a non-teaching staff is undergoing a sentence of imprisonment, the Managing Committee will cause to suspend the incumbent as per the provisions of this rule in accordance with the manner detailed in para 'a' of this letter. In this case, however, the suspension will continue till a decision on the Disciplinary Actions/Proceedings is taken against the said incumbent. In this case also, the Managing Committee of the school is not required to take approval of the Board for suspension but shall send all relevant papers including the order of sentence passed by competent authority to the Board for their information and recording. The Managing Committee of the school, however, is required to take approval of the Board for initiation of Disciplinary Proceeding against the incumbent and inflicting of penalties to him as is required under Rule 28(8) read with S/607 dated 21.6.1982. All concerned are being informed. 9. I have considered the pleadings and the rival submissions of both the parties. Upon consideration of the pleadings and the arguments of the parties, I am of the view that there is a basic and inherent fallacy in the argument of the petitioner. The petitioner has primarily relied on 28(8)(8b) of the Rules read with Memo No.S/Admn./17 dated 19 January, 2007. Both these provisions deal with the case of "deemed suspension" where a teaching or non-teaching staff of an institution is detained in custody as a result of a proceeding either on a criminal charge or otherwise. The petitioner has primarily relied on 28(8)(8b) of the Rules read with Memo No.S/Admn./17 dated 19 January, 2007. Both these provisions deal with the case of "deemed suspension" where a teaching or non-teaching staff of an institution is detained in custody as a result of a proceeding either on a criminal charge or otherwise. All the cases cited on behalf of the petitioner deal with the interpretation of clause 28(8)(8b) of the Rules and are cases of "deemed suspension". 10. The decision cited on behalf of the petitioner Abdul Kalam Mallick vs. State of West Bengal reported in 2009 (2) CHN 88 is distinguishable on facts. In that decision, the approval sought for from the Board had been categorically rejected. Notwithstanding the rejection, the Institute in that case initiated Departmental Proceedings. The Board had specifically refused to approve the order of suspension by an order dated 15 September, 2006 which was the subject matter of challenge in that writ petition. In the aforementioned decision cited by the petitioner, the Board analyzed the charges as framed against the delinquent teacher and held that the same were not legally sustainable. Thus, I am of the view that the said decision cited by the petitioner can have no application whatsoever to the facts and circumstances of the instant case. 11. In the facts of the instant case, the petitioner had been suspended in view of the Departmental Proceedings which have been initiated against the petitioner after invoking Rule 28(9)(viia) of the Rules. 12. Although counsel on behalf of the petitioner submits that there are no specific words indicating that the "suspension of the petitioner was in the interest of the Institution" in the impugned order, I am of the view that upon a meaningful and a clear reading of the impugned order and taking into consideration the letter and the spirit of the impugned order it is evident that the same has been issued in the interests of the Institution. I am further of the view that it is evident that the two Rules i.e. Rule 28(8)(8b) and Rule 28(9)(viia) operate in two distinct and separate situations. Significantly, in the facts of the instant case, the petitioner was not suspended under the deeming provision of Rule 28(8)(8b). Hence clause ('b') of the notification dated 19 January, 2007 has no application whatsoever to the petitioner in the facts of this case. Significantly, in the facts of the instant case, the petitioner was not suspended under the deeming provision of Rule 28(8)(8b). Hence clause ('b') of the notification dated 19 January, 2007 has no application whatsoever to the petitioner in the facts of this case. By virtue of the departmental proceedings initiated against the petitioner, the school authorities had leveled charges of unauthorized absence and for providing false information and construed this to be "misconduct" on the part of the petitioner. The suspension order has been affirmed by the West Bengal Board of Secondary Education by the letter dated 4 July, 2017. There is no challenge to the departmental action initiated on the part of the respondent authorities in these proceedings. The West Bengal Board of Secondary Education has also not been made a party in this proceeding. 13. It is possible that the respondent authorities have tried to get around the provisions of "deemed suspension" by adopting departmental proceedings against the petitioner and by invoking Rule 28(9)(viia) of the Rules but there is nothing to show that they were barred or prohibited in any manner whatsoever from initiating such proceedings against the petitioner. In the absence of any attack or challenge to the departmental proceedings initiated against the petitioner there are no grounds warranting any interference with the letter of suspension dated 10 February, 2017. Accordingly, I am unable to grant any relief in favour of the petitioner. 14. However, liberty is granted to the petitioner to take appropriate action insofar as the departmental proceedings are concerned which have been initiated against him by the respondent authorities as permissible in accordance with law. 15. WP 9962 (W) of 2017 stands dismissed. 16. In the facts and circumstances of the case there will be no order as to costs. 17. Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.