Calcutta High Court (Appellete Side)
Joydev Das Adhikari vs The State Of West Bengal & Ors on 1 February, 2018
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1
10 1.2.
BR 2018 W.P. 20611(W) of 2013
Joydev Das Adhikari
-vs-
The State of West Bengal & Ors.
Mr. Kamalesh Bhattacharya,
Mr. Saugata Bhattacharya,
Mr. Kamal Mishra,
Mr. Tamal Taru Panda .... For the Petitioner
Mr. Partha Sarathi Basu,
Mr. Satyajit Talukdar, ... for the respondent no. 12
Mr. Soumen Dutta ... for the Secretary
Mr. Santanu Mitra .... For the WBBSE
Affidavit -in-opposition submitted by the respondent no. 10 be kept with the record. Hearing is concluded after attending learned counsels representing respectively the writ petitioner, respondent no. 10, respondent no. 1 and 3 and respondent no. 3 to 6.
Before going to the crux of the matter, let the fact be set out in a gist as the Court is apprised of. The writ petitioner Joydeb Adhikary through selection process was appointed in the subject school on 15th July, 2000. The said school being Government aided recognised high school is covered by the school Code and 2 all other rules and regulations published time to time by the Education Department, Higher Secondary, Government of West Bengal. Before 4th April, 2007 the writ petitioner did not face any problem in continuing his service as Group-C staff in the subject school. As canvassed by the writ petitioner, on account of medical ground he was absent in school, firstly from 4th April, 2007 to 19th April 2007 which was extended on his approach by the then Managing Committee upto 13.5.2007, The allegation is that while he intended to resume his duty on and from 15th May, 2007 he was not allowed by the school authority vis-a -vis the managing committee to join on the plea of several allegations.
This being the crux, the fact has been further advanced as a consequence of initiation of a disciplinary proceeding against the writ petitioner for which the then Headmaster on 20th October, 2008 issued a letter reiterating that the school authority had already taken steps against him by initiating a disciplinary proceeding of which charge sheet already was issued and said charge sheet along with other relevant papers were already sent to the Board for approval regarding disciplinary proceeding . The writ petitioner was further 3 intimated that pursuant to the order of this Court dated 16th May, 2008 since the petitioner did not appear before the subject school for joining, on the contrary, the Headmaster having intimated him that on the fake plea of medical grounds the writ petitioner who was absenting himself, he was further given liberty to come forward to the school on 20th October, 2008 to resume his duties subject to the final result of the disciplinary proceeding.
Learned counsel for the writ petitioner inviting attention of the Court to the annexure P-33, the proposal for approval of dismissal of the writ petitioner, submitted that so called disciplinary proceeding was initiated in the name of alleged secretary Madhu Sudan Bera who was not the secretary of the managing committee which, according to learned counsel would be appearing from the order of the Court as would be dealt with appropriately. Therefore submitted, that when said Madhu Sudan Bera had no authority to act as the secretary of the managing committee the initiation of the disciplinary proceeding since thereby became without jurisdiction, the writ petitioner refrained himself in participating to that illegal proceeding . Eventually, whatever would have been the result of the said illegal disciplinary proceeding the same 4 according to learned counsel for the petitioner would not be binding, therefore it should be set aside. To substantiate above submission learned counsel invited attention of the Court to several annexures which would be dealt with appropriately.
Amongst the respondents learned counsel representing the respondent no. 10, the Secretary of the managing committee, supporting the impugned dismissal order per contra submitted that selection of Madhu Sudan Bera as the secretary of the managing committee was decided by the majority members of the committee and on completion of that formality since the disciplinary proceeding was started and concluded after recording evidence of as many as 6 witnesses upon giving opportunity of hearing and the disciplinary committee having found him guilty in consideration of the evidence, and said decision also having been assailed before the appeal committee again challenging the authority of said Madhu Sudan Bera, and, the appeal committee after consideration and upon hearing chose not to interfere with, rather, having confirmed the decision of the disciplinary proceeding, the writ Court within the ambit of Article 226 would not re-assess the evidence assessed 5 by the disciplinary committee and reconsidered by the appeal committee during testing the decision in question. To substantiate such submission learned counsel representing the respondent no. 10 relied upon cases reported in 2011(8) SCC page 695 (Oriental Bank of Commerce and anr. -vs- R.K.Uppal (para 29 and 30) and 2008 (15) SCC page 657 (State Bank of Hyderabard & anr.. vs- P.Kata Rao, para 18 and 19.
Learned counsel representing respondent no. 12 as well as respondent nos. 3 to 6 adopted the submission made by the learned counsel representing the respondent no. 10.
Perused the decisions cited above and materials on record . Admitted position is that the writ petitioner was a group-C employee of the subject school and without any trouble had rendered services till the end of March 2007. The dispute arose as a consequence of his alleged long absence apart from levelling some criminal and other charges mounting to alleged defalcation of money, extraction of money in other way so on and so forth which of course are not the subject matter of this writ petition. Defence as against said long absence of the writ petitioner was that he was ill. That also would remain for 6 consideration by the school authority subject to their satisfaction in regularising his long absence Be that as it may, the subject matter for consideration before this writ Court is as to whether the disciplinary proceeding which was initiated as against the writ petitioner was legal and proper, and, if it was drawn properly, then whether it was completed following the rule and all such formalities without making any departure therefrom.
So far as the entire proceeding there is no challenge as against any procedural departure save and except hitting at the root that it was without jurisdiction, since in whose name the said disciplinary proceeding was drawn up i.e. the secretary , namely, Madhu Sudan Bera he had no authority as because he was not the secretary of the managing committee at that relevant time .
The school authority vis-à-vis the secretary on the strength of a memo dated 17th September, 2007 (annexure P-10 to the writ petition) submitted that the managing committee since had moved "no confidence motion" against the erstwhile secretary Shakti Pada Shaw 7 and Madhu Sudan Bera claimed himself as the secretary of the managing committee, as per Rule 18 of the Management of Recognised Non-government Institutions (Aided and Unaided ) Rules , 1969 as amended, the Board took a decision as follows :-
"Hence the Board resolved unanimously that the meeting in connection with "No Confidence " convened by the Headmaster on 1.6.07 in Nazir Bazar Harendra High School , Purba Medinipore be cancelled and the Statusquo be maintained ante Managing Committee meeting held on 27.6.07."
Taking the words towards direction as to maintain status quo ante 27.6.2007, learned counsel for the writ petitioner tried to justify his submission that the disciplinary proceeding as was initiated in the name of Madhu Sudan Bera he had no authority pursuant to the aforesaid status quo order. This order however, was assailed in writ petition No. 21714(W) of 2007 (MAT 342 of 2008) at the instance of Madhu Sudan Bera, and, the Court on 12th October, 2007 granted stay of the operation of said resolution of the board till November 30, 2007 or until further order. Aforesaid Shakti Pada Shaw, respondent no. 8 moved a separate writ petition also 8 challenging the resolution of the managing committee of the school since he as removed from the post of secretary of the Managing Committee of the school and appointed Madhu Sudan Bera as the new Secretary of the Managing Committee of the school vide W.P. No. 25909(W) of 2007 and opted for an interim order . But the Court by order dated January 8,2008 though entertained the writ petition, declined to pass any interim order.
To cut short the intervening facts let me straight way go to the result of the appeal delivered by the Division Bench of this Court in MAT 342 of 2008 where said Madhu Sudan Bera and the school were the appellants and Shakti Pada Shaw was private respondent No. 8, and, others like Headmaster, Secretary and the school authorities were the respondents. In scrutinising the propriety of the resolution of the meeting held on 1st June, 2007 the appellate Court prima facie was of the view that before convening that special meeting 7 days notice was not given. Their Lordships observed as follows :
" We are, therefore, of the opinion that the Hon'ble 9 Single Judge was right in not extending the interim order. At the same time, we are not oblivious of the facts that there are serious allegations of financial irregularities from both sides against each other concerning the affairs of the said institution. We, therefore, restrain the members of the Managing Committee of the said school from taking any policy decision and from making any capital expenditure till the disposal of the writ petitions. Similarly, they , till the disposal of the writ petitions, shall not take any step to fill up any group C and group D post."
In view of above text it can be legibly mentioned that taking prima facie observation of the nature of disputes and activities going on over the subject school Their Lordships felt necessity to put an injunction rather upon the Managing Committee preventing from taking any policy decision or making any capital expenditure till disposal of the writ petition including taking steps of appointment of any group C or group D employees. However, in the said judgment Their Lordships kept all points open regarding the disputes so that the final conclusion may be expedited. Similarly, so far as taking resolution concerning the members of the managing committee the appellate Court clarified as follows : 10
"We clarify that pendency of the writ petitions shall not prevent the majority members of the managing committee to adopt appropriate resolutions concerning any member of the managing committee in accordance with law."
Now pursuant to the above clarification can it be now said or questioned that if the managing committee would take any decision not de hors any rule or law concerning any member would it be illegal ? My answer pursuant to the aforesaid clarification made in the judgment of MAT 342 of 2008 is no and no! Argument was made by learned counsel for the writ petitioner on the basis of the letter dated 31st March, 2009 (annexure P-29) by the Deputy Secretary (Administration ) to the Secretary /Administrator that despite direction not to give effect to the order of Section 24 Committee of the Board of the managing committee so called Secretary proceeded with the disciplinary proceeding. To my view in this regard the text of third paragraph from said annexure P-29 issued by the Deputy Secretary (Administration ) to the Secretary/Administrator should be set out:-
"The D.I. of Schools (SE), Purba Medinipur and the 11 Secretary of the Managing Committee of the school may be directed to cancel or set aside the decision of the committee constituted under Section 24 bearing No. 24/107/C/3 dated 18/11/2008. They may also be directed not to give any effect to the said order of Section 24 Committee of the Board and execute the order of the Appeal Committee of the Board and the order of the Hon'ourable High Court forthwith."
Perhaps annexure P-30 has gone out of notice of learned counsel where it appears that the Deputy Secretary (Administration ) by letter dated 19th January, 2010 informed later on to the same Secretary/Administrator directing " to follow the order passed by the High Court in toto with regard to the case of Joydev Das Adhikary." Therefore aforesaid direction, as appearing in annexure P-29 (supra) being de hors the direction of appellate Court, as was pointed by annexure P-30 (supra) the direction conveyed under annexure P-29 (supra) would be infructuous and would not be binding.
Apart from the order of the appeal Court as above another order dated 16th May, 2008 may be referred to which was passed in the writ petition initiated at the 12 instance the present writ petitioner Joydeb Das Adhikari taking AST No. 386 of 2008. From the observation of the Court it also appears that despite issuance of charge sheet upon the writ petitioner he did not reply to the charge sheet. However, declining to pass any interim order this Court made it clear passing the order as follows :
" However, this order in no way will interference with the pending disciplinary proceeding , if any, and the disciplinary authority will be entitled to proceed against the petitioner strictly in accordance with the provisions of Management Rules , 1969."
Admittedly , disciplinary committee at the instance of Madhu Sudan Bera completed the disciplinary proceeding ex parte , since the writ petitioner did not participate in that proceeding despite notice since he was challenging only the authority of the Secretary. In view of above no where it would be transpired and I also failed to find any material that authority of Madhu Sudan Bera was ever made otherwise by the order of the Court. On the contrary, the managing committee was given to proceed with their work concerning any member in accordance with law. Learned counsel 13 representing the respondent no. 10 invites my attention to the resolution adopted in the meeting dated 12th August, 2008 of which of course learned counsel for the writ petitioner criticised the text of the resolution, since, Madhu Sudan Bera was described therein already as the Secretary of that committee. From the copy of the resolution it appears that 9 members including Madhu Sudan Bera were present in the meeting on that date where acting President was one Laxmi Chandra Bera, and, Madhu Sudan Bera as its Secretary along with majority members participate in said meeting. In said meeting the decision of initiation of disciplinary proceeding as against the writ petitioner was adopted. Admittedly, altogether there were 11 members of the committee of whom Madhu Sudan Bera also was one of them. Therefore, Madhu Sudan Bera was not an outsider. The decision of initiation of the disciplinary proceeding was adopted on 12th August, 2008.
It is obvious that Rule 17 of the Management Rules has given clear indication that the special meeting convened by the Secretary for the purpose notice of said meeting is required for a period of "not less than seven days". Although the allegations as against the writ 14 petitioner were both of criminal and civil nature and of very serious allegations, this Court has already indicated above that the same is not the subject matter of this writ petition. It is to be looked into by overviewing as to whether the disciplinary proceeding for which the resolution was adopted by the committee whether there was any procedural departure. To my mind in Rule 17 the word 'shall' is relevantly clarifying to the word 'notice' meaning thereby without notice of not less than 7 days any special meeting cannot be convened. Purpose of introduction of the words that 'not less than seven days notice' of such meeting obviously also have some bearing , so that the members of the committee in the matter of attending the meeting find themselves convenient. Alternatively, in hot haste without giving reasonable opportunity to all the members of the committee any such special meeting may not be convened. Admittedly, the instant decision for initiation of disciplinary proceeding was as against the writ petitioner who was a staff of the school. Question comes in as to whether the decision for disciplinary proceeding for a staff of the school will have to be taken only in a special meeting specified under Rule 17? Learned counsel for the writ 15 petitioner though criticized alleging that the decision for disciplinary proceeding was adopted in the meeting without giving clear 7 days' notice. However , Rule 17 is meant for "Special Meeting" . Rule 16 of Management Rules also specified about "Meeting" (not special meeting) which may be called on by the Secretary giving ordinarily (emphasis supplied) 7 days' notice. Therefore, in between the Rule 16 and 17 the difference lies due to putting in the word 'ordinarily' in Rule 16. Though the argument is advanced before this Court that the rule either 17 or 18 was not followed but to the estimation of this Court the meeting like the impugned one on record could not be detected as a special meeting to be designated within Rule 17 or 18 of Management Rules, failing thereby, obviously said meeting was like any other meeting which falls within the ambit of Rule 16 of Management Rules . Therefore, the word "ordinarily" lying in the last sentence in the text of Rule 16 gives the impression that seven days notice would not be mandatory in the case on hand. Notice in that case was issued on 28th May,2007. Either of the members of the managing committee did never come forward to question about the legality or propriety of the resolution as was adopted on any ground 16 including the ground of service of notice for a period of less than 7 days. On the contrary, to my view the writ petitioner being the then delinquent, an not a member of the managing committee had or has no locus standi to challenge the decision of the committee taken by the majority members at the instance of its secretary Madhu Sudan Bera.
In appeal the Division Bench took note of the interim order passed by this Court in W.P. No. 21714(W) of 2007 which is also set out as follows :
" The present writ petitioners moved yet another writ petition , which has been registered as W.P. No. 21714(W) of 2007, and the Hon'ble Single Judge by order dated October 12, 2007 granted stay of the operation of the said resolution of the Board up till November 30,2007 or until further orders."
Now taking the dismissal order of MAT 342 of 2008 from which the relevant text have been collected and from the clarification it was made clear that pendency of the writ petition would not prevent the majority members of the Managing Committee to adopt appropriate resolution concerning any member of the Managing Committee in accordance with law, and, therefore, impugned resolution 17 dated 12th August, 2008 is held to have become covered by the interim order passed by this Court in W.P. No. 21714(W) of 2007 and the order of the Division Bench under reference. Thus, in the resolution appearance of the name of Madhu Sudan Bera in the capacity of Secretary in presence of majority members present on the day cannot be questioned by the writ petitioner. Had there be any deficiency or has anybody the locus standi to challenge the same at best it would be within the domain of either of the members of the Managing Committee. The writ petitioner who had the opportunity to participate in the disciplinary proceeding he ought to have sustained courage and boldness to face the proceeding had he been innocent. Challenging only the authority of the Secretary which was not in his domain he had allowed on his own whims being influenced, may be by his improvised brain in allowing the disciplinary proceeding to go ex parte it was his business. Of course, the writ petitioner had become clever after getting final resolution of the disciplinary proceeding ended with the finding of his guilt for which he had preferred appeal before the appropriate forum where the resolution of the disciplinary proceeding was unaltered, but by the 18 intervention of this Court on approach of the writ petitioner the matter was sent back again before the appeal committee to revisit the appeal and in turn it was re-visited on remand. However, the appellate authority again dismissed the appeal holding that the appeal had no merit for which of course examining the materials on record and upon hearing.
Perused also the copy of the police paper in criminal case, and after perusin all the documents including the report of the committee constituted under Section 24 of the Act approving proposal for dismissal of the appellant from his service and dismissal of the appeal. It is obvious that mode of disposal of an application or appeal is dependent upon the authority for which the authority is to scrutinise the materials on record. Though the text under the heading "decision with reasons" assigned by the appellate authority remained only in one page but it should be accepted as to his satisfaction, specially when the entire proceeding against the writ petitioner ended into finding of his guilt after examination of as many as six witnesses. In view of the cases cited by learned counsel for the respondent no. 10 that to overview the matter the High Court should not re- 19 assess the evidence already assessed at the root and then by the first appellate authority. Therefore, the authority of the Secretary was challenged by the writ petitioner all along and in view of above discussion I failed to accept the proposition submitted by learned counsel representing the writ petitioner pursuant to the effect of the order of the Court and for other reasons assigned above. The writ petitioner on his own will had allowed the proceeding to go ex parte. Nonetheless of proceeding the matter ex parte by the disciplinary authority for non participation of the writ petitioner and taking note of evidence on record the authority having found the writ petitioner guilty of the charges and, I having failed to find out any procedural illegality, the impugned order sustained and there being no reasonable cause of interference the writ petition stands dismissed.
However, no order as to costs.
At this stage learned counsel representing the writ petitioner prays for stay against which the learned counsel representing the respective respondents opposed. Though the writ petitioner has right of appeal but taking note of the serious nature of charges for which the disciplinary proceeding was concluded and the writ 20 petition is dismissed taking note of total non-cooperation of the writ petitioner till conclusion of the disciplinary proceeding, the prayer of stay is declined.
Urgent photostat certified copy of this order , if applied for, be given to the learned advocate for the parties on usual undertaking. .
( Mir Dara Sheko, J. )