Calcutta High Court (Appellete Side)
Ms. Soumya Gargash vs The State West Bengal & Ors on 3 March, 2016
Author: Subrata Talukdar
Bench: Subrata Talukdar
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03.03.2016
314
b.r
W.P. No. 3930(W) of 2016
Ms. Soumya Gargash
-vs-
The State West Bengal & Ors.
Mr. Uday Chandra Jha,
Mrs. Maheswari Sharma
....... For the petitioner.
Mr. Jahar Lal De,
Mr. Mirja Kamruddin,
....... For the State.
Mr. Soumya Majumdar,
Mr. Sanjay Kumar Baid,
Mrs. Arunima Lala Sengupta,
....... Resp. nos. 5 to 8.
In this writ petition, the writ petitioner, who is a teacher
of the School in issue being the St. Teresa's Secondary School
complains of utter arbitrariness in the conduct of the
disciplinary proceeding against her.
Sri Uday Chandra Jha, learned Counsel, appearing for
the petitioner at the very outset takes this Court to the
communication dated 24th February, 2016 issued by the
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Secretary of the St. Teresa's Secondary School, Diamond
Harbour Road, Kidderpore (for short the School). By the said
communication dated 24th February, 2016, the petitioner was
furnished with a copy of a Domestic Enquiry Report or, the
Enquiry Report (for short E.R.). From the report it transpires
that the Managing Committee (for short M.C.) of the School
proposed to impose upon the writ petitioner a penalty of
"dismissal" from service. Therefore, the petitioner was directed
to show-cause within ten days of receipt of the said
communication dated 24th February, 2016 replying to the
quantum of the proposed penalty.
Sri Jha, further submits that the communication dated
24th February, 2016 is de hors the provisions of Clause-24 of
the Regulations called the Code of Regulations for Anglo-
Indian and other Listed Schools, 1993 notified vide No. 877-
EDN(S) dated 24th December, 1993 (for short the Code). Taking
this Court to Clause 24(f) of the Code Sri Jha submits that the
communication dated 24th February, 2016 does not
demonstrate that the Chairman of the M.C. has taken a
decision on the quantum of penalty proposed to be imposed on
the petitioner. On the contrary, the Secretary has
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communicated the collective view of the M.C. which, according
to Sri Jha, is not in sync with Clause 24(f) of the Code.
Sri Jha argues that in view of the Code (supra), the
present writ petition is maintainable since the Code is a
notified Code of the Education Department, Secondary Branch,
Government of West Bengal regulating the functioning of
Anglo-Indian Schools, including the procedure for disciplinary
action.
The next point urged by Sri Jha is that pursuant to the
first enquiry, the School directed that a second enquiry be
conducted and appointed the present Enquiry Officer (for short
E.O.). The present E.O. concluded the proceedings on a single
date, viz. 16th of February, 2016 and the Domestic Enquiry
Report was forwarded within a few days thereafter on 24th
February, 2016.The petitioner and several other teachers were
dealt with in the common enquiry on a single date.
Sri Jha therefore strongly submits that from the haste in
which the second enquiry was completed, it is evident that the
principles of natural justice were not complied. The petitioner
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has not extended the opportunity to cross-examine witnesses.
Neither were the documents exhibited and Sri Jha
emphatically seeks to demonstrate the abovenoted legal
inadequacies which touch at the root of the enquiry. Sri Jha,
therefore, submits that since jurisdictional issues with regard
to conduct of the enquiry in consonance with the Regulations
and the principles of natural justice are involved, the present
writ petition is maintainable.
Sri Sanjoy Kumar Baid, learned Counsel led by Sri
Soumya Majumdar, learned Counsel appearing for the
Respondents-School Authority points out that by several
earlier orders of Hon'ble Single Benches of this Court the validity of conducting the enquiry against the delinquent teachers was upheld. Taking this Court to the order dated 31st March, 2015 in W.P. 7423(W) of 2015, Sri Baid argues that the respondent-School was allowed to raise the point of maintainability of the writ petition in a future proceeding, if any.
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Next, Sri Baid draws the attention of this Court to the order dated 25th of February, 2015 in WP No. 25233(W) of 2015 with CAN 10091 of 2015. An Hon'ble Single Bench by the order dated 27th November, 2015 was pleased to, inter alia, direct the School Authority to proceed with the enquiry from the stage at which such enquiry was left by the erstwhile E.O. The Hon'ble Single Bench was further pleased to direct as follows :-
" The newly appointed Enquiry Officer is directed to give a full fledged hearing to the petitioner in accordance with law and conclude the same by the end of February, 2016."
Therefore, Sri Baid argues that the enquiry by the new E.O. was adjudicated within February 2016 in terms of the order of the Hon'ble Single Bench dated 27th November, 2015 and there arises no infirmity thereof. Next, Sri Jha relies on the Service Rules of teachers attached to the School in issue and takes this Court to Rule 21 thereof which is a procedure for imposing major penalties. Sri Jha submits that the M.C. of the School has been entrusted with the authority to take a complete decision on the quantum of penalty to be imposed on the delinquent teacher.
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Therefore, Sri Baid argues that the communication dated 24th February, 2016 is addressed by the Secretary of the M.C. acting on behalf of the M.C. and points to the ultimate findings of the M.C. on the penalty imposed proposed on the delinquent teacher subject to appeal under Clause 22 of the said Service Rules.
Sri Baid points out that there has been no infraction of the Service Rules and, in the facts of this case, the second enquiry has been conducted in terms of the order of the Hon'ble Single Bench dated 27th November, 2015.
Sri Jahar Lal De, learned Senior Government Advocate appears for the State-Respondents and raises the point of maintainability of the writ petition on the ground that the inter se employer-employee relationship in a private teaching institution which is not under State Aid, cannot be said to be amenable to the writ jurisdiction of this Court. 7
The next point taken by Sri De is that the petitioner has been only directed to reply to the show-cause notice dated 24th February, 2016. In view of such fact the present writ petition is pre-mature and, in the event a final decision is taken in the enquiry, the same shall be subject to appeal videClause-22 of the Service Rules.
Having heard the parties and considering the materials on record, this Court at the first blush is not inclined to agree with Sri Jha's submission that the communication of the proposed quantum of punishment could not be made to the petitioner by the Secretary of the M.C. on behalf of the M.C. vide the letter dated 24th February, 2016 having regard to the provisions of Clause 21 of the Service Rules.
However, on the second point, this Court finds that although by the order dated 27th November 2015, the Hon'ble Single Bench was pleased to direct the second E.O. to complete the enquiry within the end of February, 2016 such direction did not dispense with the obligation on the second E.O. to 8 conduct the enquiry in compliance with the accepted principles of natural justice and service jurisprudence.
This Court notices that the second enquiry was commenced on the 16th of February, 2016 and the Enquiry Report was communicated by a period of seven days in respect of four delinquent teachers. Therefore, this Court finds substance in the argument of Sri Jha that the second enquiry did not proceed in the manner settled by the rules of service jurisprudence and the principles of natural justice since the documents were not exhibited and, neither the petitioner given the opportunity to cross-examine prosecution witnesses. Further, in view of the fact that the School in issue being an Anglo-Indian School is required to be guided under the Code which includes provisions for conducting the disciplinary action against confirmed staff, the exercise of the writ jurisdiction of this Court is not lost qua the grievances ventilated by the petitioner.
Accordingly, the petitioner is directed to answer the show-cause notice dated 24th February, 2016. However, the Respondent-School Authority shall not pass any final order in the proceeding without the leave of this Court. 9
Let Affidavit-in-Opposition be filed within a period of five weeks from date; reply within three weeks thereafter.
Time to file reply to the show-cause notice dated 24th February, 2016 is extended by a further period of a week from date.
Liberty to mention after the period granted to exchange affidavits is complete.
(Subrata Talukdar, J)