Calcutta High Court
Biswanath Seth vs State Of West Bengal And Ors. on 29 June, 2004
Equivalent citations: (2005)1CALLT541(HC), 2005(3)ESC1785
Author: Soumitra Pal
Bench: Soumitra Pal
JUDGMENT Soumitra Pal, J.
1. The petitioner was a Headmaster of a school. Charges of financial irregularities were levelled against him. Complaint was made to the authorities. The petitioner made an application for bail. Bail was not granted on 1.2.2001. The Secretary of the Managing Committee (for short 'the Secretary of the school') by a Memo dated 8.2.2001 placed the petitioner under suspension with effect from 1.2.2001 until further orders. The Secretary of the school by letter dated 26.4.2001 intimated the petitioner that as per the resolution of the Managing Committee dated 19.4.2001, he was found prima facie liable to the charges and the petitioner was requested to give the reply to the charge within a period of 15 days from the date of receipt of the Article of Charges. The copy of the article of charges with all documents and the resolution passed by the Managing Committee was enclosed along with the letter dated 26.4.2001. The petitioner replied to the said charges denying each and every charge as mentioned in the article of charges. The said reply was received by the school authorities on 18.5.2001.
2. The school authorities on 19.10.2001 forwarded the necessary papers to the West Bengal Board of Secondary Education (for short 'the Board') for approval of the proposal of the school for initiating disciplinary proceedings against the petitioner. The petitioner retired on 30.11.2001. The Board did not send its approval. According to the petitioner the departmental proceedings cannot continue after the retirement.
3. The petitioner prior to the framing of the charges as well as the suspension order, submitted the Service Book before the District Inspector of Schools (Secondary Education), Howrah [for short D.I.(S.E.)] on 27.7:99 for counter-signature of the D.I.(S.E.). As it was not done the petitioner sent number of reminders and representations but without success. The D.I.(S.E.), Howrah by a letter dated 6.7.2001 addressed to the Secretary of the school, requested to reconstruct the service book of the petitioner, from the available records of the school as the original of the same was not readily available in the office of the D.I.(S.E.), Howrah. It was further mentioned in the said letter that there was a duplicate service book, reconstructed by the petitioner in the said office and the Secretary of the school was requested to take help of that service book at the time of reconstruction of the same for verification. It was pointed out that the matter was extremely urgent as the petitioner would retire on 30.11.2001. The petitioner while under suspension retired from the service. The petitioner being aggrieved by the purported disciplinary proceedings and for non-payment of the retrial benefits has moved the instant writ application.
4. I find that the petitioner moved the writ petition with notice to the parties. Affidavit of service is on record. However, none appeared on behalf of the Board when the matter was taken up for hearing.
5. Mr. Arabinda Chatterjee, learned advocate appearing along with Ms. K. Dutta for the writ petitioner made two fold submissions - whether the disciplinary proceedings can continue even after retirement of the petitioner and whether the authority can withhold the pension of the petitioner on the alleged plea of disciplinary proceedings. It was submitted that the petitioner replied to the articles of charges on 18.5.2001. Though it appears from the records that the Secretary of the school by letter dated 19.10.2001 requested the Board to grant permission to initiate disciplinary proceedings against the petitioner, yet such approval was not forthcoming. The petitioner retired on 30.11.2001. After retirement disciplinary proceedings cannot continue as there are no rules permitting such continuance. Mr. Chatterjee submitted that Rule 28(8) of the Institutions (Aided and unaided) Rules, 1969 (for short 1969 Rules) applies to permanent or temporary teacher and not to any retired teacher. Reference was made to the notification No. S/607 dated 21.6.82 (for short 'notification') framed under 1969 Rules. Said notification speaks of two stages. The School management shall initiate disciplinary proceedings against any member of the teaching/non-teaching staff of the school in two stages. First stage refers to the stage from passing of a resolution up to submission of papers to the Board and if no communication is received within one month of such submission of the proposed punishment to the teacher employee, the school shall meet the Secretary of the Board for expeditious disposal. In the instant case resolution was passed by the Managing Committee, formal charge was issued, reply was received from the petitioner, consideration was made by the Managing Committee and the papers were sent to the Board for approval to the proposal of the school for initiating disciplinary proceedings against the petitioner. According to Mr. Chatterjee, there is nothing on record to show that the Board accorded its approval within one month of receiving such papers and as no approval was received the school should have made a request for expeditious disposal. Not having done so and petitioner having retired on 30.11.2001, the school cannot take the plea that the departmental proceedings are continuing as made out in letter dated 19.3.2002. Submission was made that departmental proceedings lapsed with the retirement of the petitioner and directions should be issued quashing the said proceedings. Regarding non-continuance of departmental proceedings after retirement in the absence of the specific Rule, reliance was placed on the judgment of the Supreme Court - Bhagirathi Jena v. Board of Directors, O.S.F.C. and Ors. wherein it has been held that in the absence of any provision for conducting a disciplinary enquiry after retirement of the appellant therein there was no authority for continuing departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant therein. Mr. Chatterjee also cited a judgment of the Division Bench of this High Court - Hindusthan Copper Ltd. v. Krishnendu Narayan Ghosh and Ors. reported in 2001(3) CHN 122 in support of his contention. In short Mr. Chatterjee submitted that as the Board did not grant its approval and as the petitioner retired, the departmental proceedings cannot continue in the absence of any specific rule and the same should be quashed.
6. Turning to the payment of pension and other retiral benefits, Mr. Chatterjee submitted that the petitioner has filled up all the papers for the purpose of grant of pension under the West Bengal Recognised Non-Government Educational Institution Employee (Death-cum-Retirement Benfit) Scheme, 1981 (for short 'the Scheme'). The subsistence allowance which was paid during the suspension of the petitioner has been stopped as soon as the petitioner retired on 30.11.2001. As no approval was received from the Board for continuing the departmental proceedings and as there was no rule for continuation of departmental proceedings after retirement, there are no departmental proceedings as contemplated under paragraph 19(5) of the annexure 1 to the Scheme. However, it was submitted that the petitioner is not claiming full pension at present as two criminal cases are pending against the petitioner which are "judicial proceedings" under the Scheme. The Scheme envisages that the petitioner is entitled to a provisional pension during the pendency of such judicial proceedings but the same has been denied. Submission was made that from a perusal of the letter dated 19.3.2002 addressed to the petitioner by the Secretary it appears that as records are not available in the school it was not possible for the school authority to construct the duplicate service book on the basis of assumption and hence, the payment of pension and provident fund has been held up. It was submitted that as there is a duplicate service book in the office of the D.I.(S.E.), the service book should be reconstructed and the provisional payment should be paid in accordance with such reconstructed service book.
7. Mr. G.S. Dey learned advocate appearing along with Mr. L. Dey for the school authorities opposing the writ application submitted that since there were grave charges, disciplinary proceedings were initiated - charge sheet was issued and after receiving the reply the school authorities had duly sent all the papers as contemplated under Rule 28(8) of the 1969 Rules and the notification framed thereunder to the Board for its approval. The authorities are waiting for the approval of the Board. Submission was made that departmental proceedings are continuing against the petitioner pursuant to the order dated 12.10.2001 passed by the Division Bench of this High Court. Mr. Dey also submitted that since the departmental proceedings are continuing and two criminal cases are pending against the petitioner, the petitioner is not entitled to any pension whatsoever. Pension shall be paid after the petitioner is exonerated from the charges. Mr. Dey relied upon the judgments of State of Uttar Pradesh v. Shri Brahm Datt Sharma and Anr., , State of Maharashtra v. M.H. Majumdar , D.V. Kapoor v. Union of India and Ors., , Union of India and Ors. v. B. Dev and Chandra Singh and Ors. v. State of Rajasthan and Anr., and the judgment of the Division Bench of this Court, State of West Bengal and Ors. v. Govinda Chandra Mukherjee reported in 2001 (3) CHN 740 in support of his contentions.
8. Mr. Sk. Oil Mohammad appearing along with Mrs. B. Mitra for the respondent Nos. 1, 2, 5 and 8 submitted that in view of grave financial irregularities committed by the petitioner the Board should be directed to take a decision relating to the disciplinary proceedings. Referring to the memorandum dated 26th May, 1998 relating to the "Scheme for payment of pension and gratuity on the date of superannuation to the Employees of the West Bengal recognised Non-Government Educational Institutions and introduction of comprehensive form in connection with sanction of pension cases" it was submitted that since the disciplinary proceedings are continuing the pensionary benefit should be stopped so long as the retiring employee is not honourably acquitted of the charges.
9. Mr. Arabinda Chatterjee in reply submitted that the order dated 12.10.2001 passed by the High Court has been wrongly interpreted. Even after the order dated 12.10.2001, the school authorities on 19.10.2001 had sent the papers to the Board and even after one month as contemplated under the notification, the Board did not send its approval. The authorities kept silent and the petitioner retired. Thus, the suspension came to an end the disciplinary proceedings lapsed. Mr. Chatterjee submitted that the Pension Scheme of 1998 for payment of pension and gratuity referred to by Mr. Oli Mohammad has not been introduced. Even assuming the said Scheme had been introduced, disciplinary proceedings as contemplated in 1998 Scheme cannot continue without the approval of the Board, otherwise Rule 28(8) of the 1969 Rules shall be redundant.
10. After hearing the learned advocates for the parties I find there is no dispute that in accordance with Rule 28(8) of the 1969 Rules and the notification dated 21.6.82 the school management initiated disciplinary proceedings against the writ petitioner. Resolution was adopted by the Managing Committee, charge-sheet was issued on 26.4.2001. The petitioner replied to the charge-sheet on 18.5.2001. The Managing Committee of the school though belatedly on 19.10.2001 sent the papers to the Board for its approval. The school authorities did what should have been done on their part till that date. After receiving the papers there was no communication from the Board. The petitioner who was already under suspension retired on 30.11.2001.
11. Now, the question arises whether the departmental proceedings can continue after retirement. Rule 28(8) of the 1969 Rules gives power to the Committee in an aided and unaided institutions subject to the prior approval of the Board to "remove or dismiss permanent or temporary teachers and other employees" - that is teachers who are in service. It does not refer to retired teacher. Once a teacher retires, Rule 28(8) of 1969 Rules and the notification dated 21.6.82 have no manner of application at all. The learned advocate for the respondents could not repel the argument of Mr. Chatterjee and show any provision which goes to show that disciplinary proceedings can continue against a retired teacher. The petitioner in the instant case a permanent teacher - against whom disciplinary proceedings were initiated by the school authorities who had retired on 30.11.2001. Having retired he does not come within the ambit of the term permanent teacher. Thus, Rule 28(8) of 1969 Rules does not apply. The law laid down by the Supreme Court in Bhagirathi Jena (supra) and the judgment of this Court in Hindusthan Copper Ltd. and another (supra) cover the issue. In the absence of any specific rule, disciplinary proceedings cannot continue against an employee. In the instant case as there is no Rule permitting continuance of disciplinary proceedings after the date of retirement, the school authorities cannot continue the disciplinary proceedings against the petitioner. Since there is no Rule permitting continuance of disciplinary proceedings after retirement, any letter or communication in that regard after retirement is improper and illegal. In the absence of Rules and Regulations the continuance of disciplinary proceedings after superannuation is illegal. Therefore, disciplinary proceedings are set aside and quashed.
12. Since the disciplinary proceedings are set aside and quashed, the Secretary of the school shall raise the bill for the payment of salary and other allowances within a period of eight weeks for the period of suspension , of the petitioner minus the amount paid as subsistence allowance and shall send the bill to the D.I.(S.E.), Howrah being the respondent No. 5, who shall, thereafter, pay the said sum within a period of four weeks after scrutiny of the records.
13. During the hearing it has been mentioned that two criminal cases are pending against the petitioner, it goes without saying that such proceedings are 'judicial proceedings' as contemplated under the Scheme. Since such judicial proceedings are continuing the petitioner is not entitled to any pension but is entitled to a provisional pension under the Scheme. However, the petitioner has not been provided with the provisional pension though it is due. The reason for such non-payment of provisional pension is that the Service Book is not available neither in the school nor in the office of the D.I.(S.E.), Howrah. However, from the report dated 18.5.2004 submitted by the D.I.(S.E.), Howrah I find from a memo No. 469/1(3)/M dated 6.7.2001 addressed the D.I.(S.E.), Howrah to the Secretary of the School that "there is a duplicate Service Book, reconstructed by Sri Biswanath Seth, in this office...." Since there is a duplicate Service Book in the office of D.I.(S.E.), Howrah, the said D.I.(S.E.) shall reconstruct the Service Book of the petitioner in consultation with the Secretary of the school concerned within a period of four weeks from the date of communication of this order and shall send the said Service Book to the authorities concerned including the respondent No. 8 for grant of provisional pension. In case of necessity the D.I.(S.E.), Howrah is at liberty to take the assistance of the petitioner. The authorities including the respondent No. 8 shall grant provisional pension to the petitioner within four weeks of the receipt of such reconstructed Service Book.
Regarding the dues of the petitioner relating to Provident Fund, the respondent No. 8 shall release the same within eight weeks from the date of communication of this order to the extent it has been deposited in the Treasury concerned.
The writ petition is allowed to the extent as above. No order as to costs.
Urgent xerox certified copy of the judgment and order be given to the parties, if applied for, on priority basis.