Calcutta High Court (Appellete Side)
Subhas Chandra Das vs The State Of W.B. & Ors on 23 February, 2010
Author: Indira Banerjee
Bench: Indira Banerjee
1
1.
23.02.2010.
d.d. W. P. No.2786 (W) of 2005
Subhas Chandra Das
Vs.
The State of W.B. & Ors.
Mr. Joydeep Sen
....... For the Petitioner.
Mr. S. C. Bose, Sr. Adv.,
Mr. Nirmalya Biswas
........ For school authority.
Mr. Goutam Roy
........ For the Board.
Mr. B. R. Roychowdhury
........ For the State.
In this writ application, the petitioner has sought orders
restraining the respondents from proceeding with the inquiry
initiated against him. The petitioner has further sought orders on the respondents to release Provident Fund dues and other retiral benefits including Gratuity in favour of the petitioner.
The petitioner was Headmaster of Krishna Kumar Santosh Kumar Smriti Vidyapith, a school duly recognized by the West Bengal Board of Secondary Education.
According to the petitioner, the petitioner worked in the school as Headmaster for 26 years. According to the petitioner, the 2 petitioner had an unblemished service career. An order of suspension appears to have been issued to the petitioner on 27th April, 2004, a few months before his scheduled date of retirement. A charge-sheet dated 28th June, 2004 was also issued to the petitioner. It is not for this Court exercising jurisdiction under Article 226 of the Constitution of India to adjudicate the correctness of the charges levelled against the petitioner. The charges, therefore, need not be reproduced in this order.
Suffice it to mention that the petitioner duly submitted a detailed reply to the charge-sheet which has been annexed to the writ petition as Annexure 'P-4'. The petitioner was apparently kept under suspension with effect from 27th April, 2004 in contemplation of disciplinary proceedings. The petitioner, however, appealed to the Appeal Committee of the West Bengal Board of Secondary Education. The petitioner also filed a writ application being W.P. No.13761 (W) of 2004 in this Court whereupon His Lordship, the Hon'ble Justice Ashim Kumar Banerjee passed an order on 28th September, 2004, the operative part whereof is extracted hereinbelow for convenience: -
" In that view of the matter the Board is directed to complete the proceeding pending before it as early as possible and communicate the result to the school authority as well as to the writ petitioner.
Let Affidavit-in-Opposition to the writ petition be filed by 16th November, 2004, reply thereto, if any, by 22nd November, 2004.
Let the writ petition be listed for hearing before the appropriate regular Bench in the monthly list of December, 2004. "
In this writ petition, it is contended that the petitioner attained age of retirement on 30th November, 2004. On attaining age of retirement, the order of suspension automatically stood revoked. Mr. Joydeep Sen, appearing on behalf of the petitioner, argued that the 3 disciplinary proceedings not having been completed before retirement of the petitioner, the respondent authorities cannot withhold retiral benefits on the plea that disciplinary proceedings were still pending. The disciplinary proceedings purported to be initiated against the petitioner lapsed when the petitioner attained the age of retirement. According to the petitioner, the petitioner has been making representations, one after the other, for release of retiral dues as also release of arrears dues, but to no effect.
At the time of hearing of the writ application, Mr. S. C. Bose, appearing on behalf of the Managing Committee of the school, submitted that the petitioner had not handed over the keys of the almirah. Mr. Bose further submitted that since the petitioner had withheld documents and papers, the Managing Committee was not in a position to process the retiral benefits. This Court thus passed interim orders directing that the locked almirah might be opened in presence of the District Inspector of Schools, if necessary by getting duplicate keys and an inventory should be made of the papers and documents found therein. The almirah has apparently been opened in the presence of the petitioner and an inventory has been made of the documents found therein.
It is submitted that some documents have still not been traced. It is not possible for this Court to fix the responsibility for loss of the missing documents or, for that matter, the disappearance of the keys of the almirah. On this writ application being moved, interim orders were, from time to time, passed restraining the respondent authorities from further proceeding against the petitioner. The interim order, which was time-bound, has, however, lapsed with efflux of time, the same not having been extended.
4In the Affidavit-in-Opposition filed on behalf of the Managing Committee, it is stated that disciplinary proceedings initiated against the petitioner were still pending. The benefits of commuted pension and other retiral dues are not admissible tot he petitioner till the petitioner is acquitted of the charges framed against him.
Mr. Sen, appearing on behalf of the petitioner, emphatically argued that upon the petitioner attaining the age of his retirement on 10th November, 2004, the master-servant relationship between school and the petitioner came to an end. The disciplinary proceedings which had not been completed, automatically lapsed. Mr. Sen argued that disciplinary actin in respect of teaching and non-teaching staff of Government aided high school was governed by the provisions of the Management of Recognized Non-government Institutions (Aided and Unaided) Rules, 1969, hereinafter referred to as 'the 1969 Rules'. Mr. Sen further submitted that as per Rule 28(8) of the 1969 Rules, there were two stages of disciplinary proceedings. The first stage was the issuance of charge-sheet, giving the chargesheeted employee at least 15 days time to submit reply thereto. Thereafter, the proposal for initiating disciplinary proceedings against the chargesheetd employee was required to be forwarded to the Board for approval along with the requisite papers and documents. In case the chargesheeted employee was also suspended, the suspension was required to be approved by the West Bengal Board of Secondary Education in terms of Rule 28(9)(vii)(a) of the Management Rules. Mr. Sen submitted that the Circular No.S/607 dated 21st June, 1982, issued by the Board in terms of the provisions of Rule 28(8) of the 1969 Rules, laid down the procedure for submission to the Board of proposals seeking approval for initiation of disciplinary proceedings. Mr. Sen referred to clause (a) of the said Circular which provides as under:-
5" If the Board considers there are sufficient grounds for taking disciplinary action against the person concerned on the basis of papers submitted by the school and also papers that may be subsequently called for, if necessary, the Board will accord first approval to the school's proposal for initiating disciplinary proceeding against him/her. "
Mr. Sen submitted that on a conjoint reading of Rule 28(8) of the aforesaid Circular, disciplinary proceedings could not be said to have been initiated until the disciplinary proceeding was approved by the Board. Mr. Sen submitted that the proposal for initiating disciplinary proceeding had not been approved by the Board. It was only after the petitioner approached this Court by filing Writ Petition No.13761 (W) of 2004 praying for expeditious disposal of his case and that His Lordship, the Hon'ble Justice Ashim Kumar Banerjee directed the Board to dispose of the case of the petitioner as early as possible in view of the fact that the petitioner would be superannuated on 30th November, 2004. In support of his submission, Mr. Sen cited the following judgments - i) Biswanath Seth Vs. State of West Bengal & Ors., reported in (2005) 1 Cal LT 541 (HC) and Bhagirathi Jena Vs. Board of Director, O.S.F.C, reported in (1993) 3 Supreme Court Cases 666.
The admitted position is that the Board has not yet approved initiation of disciplinary action against the petitioner. Mr. Roy appearing on behalf of the Board submits that the Board could not take further action by reason of interim orders passed by this Court. It is true that the interim orders initially passed by His Lordship, the Hon'ble Justice Arun Kumar Mitra (as His Lordship then was) have long expired. However, Mr. Roy submits that since the writ petition is pending and the matter is subjudice, the Board did not take further action. As per the rules, there is a time limit for submission to the Board of the proposal to initiate disciplinary action against a member of the teaching or non-teaching staff. There is, however, no 6 time limit within which the Board has to communicate its decision to the school concerned.
Having forwarded the requisite papers and documents to the Board, the school authorities did what was required of them. If there was any delay on the part of the Board, the school authorities are not to blame.
It is true that even though there may not be any stipulated time limit, the decision of the Board would have to be taken within a reasonable time. However, in this case, there were writ proceedings and interim orders as a result of which, no further action was taken by the respondent Board.
It is true, as argued by Mr. Sen, that Rule 28 does not authorize continuation of disciplinary proceedings after attainment of age of retirement. However, the procedure for settlement of pension claims of employees of West Bengal Recognized Non-government Educational Institutions as framed by Government Order No.88/SE(B), Dated Calcutta the 26th May, 1998 provides that any disciplinary proceedings initiated before the retirement of the petitioner might be continued As initially argued by Mr. Sen, disciplinary proceedings are in two stages. The first part being the issuance of charge-sheet with time to give reply and submission of the relevant papers to the Board for approval and the second stage is the inquiry after approval of the Board.
Disciplinary proceedings commenced with the issuance of the charge-sheet. This is evident from the statutory rules, being the 1969 Rules. Approval was required for further action and/or, in other words, for further proceeding with the 7 disciplinary proceedings. This Court is of the view that there is no bar in law to continuance of the disciplinary proceedings against the petitioner. Just because the petitioner has attained the age of retirement from service, the disciplinary proceedings have not automatically lapsed and/or come to an end. The Board would have to take an expeditious decision. The decision would have to be taken within a period of four weeks from the date of communication of this order, having regard to the fact that the writ proceedings have been pending for a long time. In the event, the Board approves disciplinary action, the school authorities shall ensure that the disciplinary proceedings are concluded at their end within sixty days from the date of receipt of the approval. Pending conclusion of disciplinary proceedings, the petitioner shall be entitled to provisional pension in accordance with rules. The concerned respondent shall fix provisional pension of the petitioner immediately. Provisional pension shall positively be paid to the petitioner from month to month from April, 2010 onwards. Arrears of provisional pension shall also be released to the petitioner within 7th May, 2010. The District Inspector of Schools shall also ensure that necessary steps are taken for release of the Provident Fund dues of the petitioner.
In the event, any ledgers and documents are not traceable, the same may be reconstructed.
The writ petition is thus disposed of.
Certified photostat copy of this order, if applied for, be supplied to the parties immediately subject to compliance of all requisite formalities.
8( Indira Banerjee, J ) 23.02.2010 W.P. No.13761 (W) of 2004 Subhas Chandra Das Vs. The State of W.B. & Ors.
Mr. Joydeep Sen ....... For the Petitioner.
Mr. S. C. Bose, Sr. Adv., Mr. Nirmalya Biswas ........ For school authority.
9Mr. Goutam Roy ........ For the Board.
Mr. B. R. Roychowdhury ........ For the State.
This writ application was virtually disposed of by the interim order dated 28th September, 2004 passed by His Lordship, the Hon'ble Justice Ashim Kumar Banerjee. In any case, in view of the judgment and order passed today in W.P. No.2786 (W) of 2005, this writ petition has become infructuous and the same is disposed of without any further order.
( Indira Banerjee, J )