Calcutta High Court (Appellete Side)
Asutosh Mondal vs The State Of West Bengal & Ors on 3 July, 2023
Author: Biswajit Basu
Bench: Biswajit Basu
03.07.2023
(D/L-05)
Ct.-18
(Susanta)
W.P.A. 14825 of 2023
Asutosh Mondal
-Vs-
The State of West Bengal & Ors.
Mr. Sarwar Jahan,
Mr. Satyam Mukherjee,
Ms. Sayani Ahmed,
.... For the Petitioner.
Mr. Biswabrata Basu Mallick, AGP,
Mr. Biman Halder,
.... For the State.
Ms. Koyeli Bhattacharyya,
.... For the W.B.B.S.E.
Mr. Kallol Bose,
Mr. Sunit Kumar Roy,
.... For the Respondent nos.9 & 10.
Mr. Biswarup Biswas, Mr. G. S. Samanta, .... For the Respondent No.11.
The petitioner was an Assistant Teacher of Rasullapur High School (H.S.). He participated in the 1st State Level Selection Test, 2017 for Recruitment of Headmaster/Headmistress and was found eligible, consequently, the West Bengal Central School Service Commission recommended his appointment as a Headmaster and in pursuance thereof, he was appointed as the Headmaster of Basantapur Jhareshwar Bani Bhawan(Higher Secondary).
The petitioner was arrested in connection with Beldah P.S. Case No. 35/2020 dated January 30, 2020 u/s 363/376/50 of the IPC read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 and is still in custody, as a consequence, the petitioner was put under suspension, which is still continuing.
2The period of suspension since has exceeded ninety (90) days, the petitioner is praying revision of the subsistence allowance and disbursement thereof.
The wife of the petitioner, for the selfsame relief, filed a writ petition being W.P.A 4054 of 2022.
In the said writ petition, as an interim measure, release of 30% of the payable salary was directed to be disbursed towards subsistence allowance.
The respondents raised serious dispute as to the right of the wife of the petitioner to pursue the cause of action accrued to her husband due to the non-disbursement of the admissible subsistence allowance.
The wife of the petitioner, to avoid unnecessary complication, prayed withdrawal of the said writ petition. This Court vide order dated June 20, 2023 allowed the said prayer with the observation that the withdrawal of the said writ petition will not prevent her husband from seeking selfsame relief on a similar ground, hence the present writ petition.
Mr. Jahan, learned advocate for the petitioner submits that the petitioner is under suspension for more than ninety (90) days as such, in terms of Rule 7 of the West Bengal Board of Secondary Education(Appointment, Confirmation, Conduct and Discipline of Teachers and Non-Teaching Staff) Rules, 2018, is entitled to 75% of the last pay and allowances drawn by him but he is not getting the said allowance at the said rate.
Mr. Biswaroop Biswas, learned advocate for the Authority of the Rasullapur High School(H.S.), the 3 respondent no. 11 herein, submits that his client released the petitioner for a period of six months on lien to facilitate the joining of the petitioner as the Headmaster of Basantapur Jhareshwar Bani Bhawan(H.S.), as such the petitioner is in no way related with the Rasullapur High School(H.S.) so as to fix any obligation on his client in the matter of disbursement of his subsistence allowance, particularly when the period of said lien was not extended and the petitioner committed the alleged offence after the expiry of the said period of lien.
Mr. Bose, learned counsel for the Authority of the Basantapur Jhareshwar Bani Bhawan (H.S.) submits that the client of Mr. Biswas released the petitioner to join the school of his client as the Headmaster for six months, accordingly, the appointment of the petitioner as the Headmaster of the School of his client was approved for a period from July 23, 2019 to January 22, 2020. The petitioner allegedly committed the offence after the expiry of the said period, as such Mr. Biswas's client cannot shift its obligation to take steps for disbursement of the subsistence allowance upon his client.
Mr. Basu Mallick, learned Additional Government Pleader submits that in compliance with the interim order passed in the earlier writ petition, the District Inspector of Schools (S.E.), Nadia, the respondent no. 8 herein, has disbursed the admissible subsistence allowance to the petitioner. He prays that the same arrangement may be continued to avoid unnecessary complication. 4
Mr. Biswas raises objection to the said submission of Mr. Basu Mallick on the ground that if the said arrangement is allowed to be continued, it would be amounting to interfering with the jurisdiction of the District Inspector of Schools(S.E.), District-Paschim Medinipur, the respondent no. 6 herein.
Having heard the learned counsel for the parties and on perusal of the materials-on-record, it appears that if the period of suspension exceeds ninety (90) days, the rate of subsistence allowance is required to be re-assessed.
The dispute raised by Mr. Biswas and Mr. Bose regarding the liability of their respective clients to make the said re-assessment shall be decided after the exchange of affidavits by the parties. The wife and the son of the petitioner require immediate financial support, particularly when the period of suspension has exceeded ninety (90) days as such, the rate of subsistence allowance needs to be re- assessed.
In terms of Rule 7 of the aforementioned Rules of 2018, the rate of subsistence allowance is to be calculated on the basis of the pay and allowances drawn by the concerned employee immediately before his suspension.
The petitioner at the time of suspension, was receiving the salary of the Headmaster, as such the subsistence allowance to which he is now entitled, is required to be calculated on the basis of his such pay and allowances.
At present, the respondent no. 8 is disbursing the admissible subsistence allowance of the petitioner, as such the Authority of the Basantapur Jhareshwar Bani 5 Bhawan(H.S.) is directed to calculate the subsistence allowance payable to the petitioner in terms of the relevant provision of the aforementioned Rules of 2018 and within two weeks from date, shall send the same to the respondent no. 8, who in turn, shall disburse admissible subsistence allowance within one week thereafter.
Let the affidavit-in-opposition to the writ petition be affirmed by the respondents within three weeks from date; reply thereto, if any, be affirmed by the petitioner within one week from the date of receipt of the copy of such affidavit- in-opposition.
Let the matter appear in the List four weeks hence.
(Biswajit Basu, J.)