Jharkhand High Court
Sangeeta Ray (Bhattacharjee) vs State Of Jharkhand & Ors on 24 August, 2016
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (S) No. 2055 of 2009
...
Sangeeta Ray (Bhattacharjee) wife of Shri Subrato Bhattacharyajee; Assistant
Teacher, Shyama Prasad High School, Khas Mahal, District - East Singhbhum
Jamshedpur-2; Resident of 11/A, Sheuli Road, Parmatha Nagar, P.S. Parsudih,
District-East Singhbhum, Jamshedpur-2. ... ... Petitioner
-V e r s u s-
1. The State of Jharkhand ;
2. The Secretary, Human Resources Department, Government of Jharkhand,
Ranchi, P.O. & P.S. Dhurwa, District - Ranchi.
3. The Director, Secondary Education, Government of Jharkhand, Project
Building, P.O. & P.S.-Dhurwa, District-Ranchi.
4. The District Education Officer, East Singhbhum, Jamshedpur, P.O. & P.S.
Jamshedpur, District - East Singhbhum, Jamshedpur.
5. The Secretary, Shyama Prasad High School, Khas Mahal, Jamshedpur,
District-East Singhbhum.
6. The Head Master, Shyama Prasad High School, Khas Mahal, Jamshedpur
... Respondents
...
CORAM: - HON'BLE MR. JUSTICE PRAMATH PATNAIK.
...
For the Petitioner : - Mr. Bhanu Kumar, Advocate.
For the Respondent-State : - Mr. Rajiv Ranjan Mishra,
For the Respondent Nos. 5 & 6 : - Mr. Kishore Kumar Singh, Advocate.
...
C.A.V. On : - 03/05/2016 Delivered On : 24/08/2016
...
Per Pramath Patnaik, J.
In the accompanied writ application, the petitioner has inter alia,
prayed for issuance of a writ of Certiorari for quashing the order, as
contained in letter dated 31.03.2009, vide Annexure-9 to the writ petition
pertaining to dismissal from services, as Assistant Teacher in Shyama
Prasad High School, Khasmahal, Jamshedpur-2, on the basis of charges
levelled against her by chargesheet dated 18.11.2008 (Annexure-3), based
on the Complaint Petition dated 26.09.2008 (Annexure-3/1) signed by the
13 staff members of the said High School addressed to the Head Master
(Respondent No. 6).
2. Bereft of unnecessary details, the facts as disclosed in the writ
application, in a nutshell, is that the petitioner was a Assistant Teacher in
Shyama Prasad High School, Khas Mahal, Jamshedpur-2 and the School in
question is a Linguistic (Bengali) Minority High School declared as such
by the Bihar Secondary Education Board, Patna vide Letter dated
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31.07.2007and the said School being declared as Minority School, is governed by Articles 29 and 30 of the Constitution of India. Earlier, the service of the petitioner was terminated vide order dated 05.05.2004 and the petitioner approached this Court being aggrieved by the order of termination in W.P. (S) No. 2726 of 2004 and the said writ petition was disposed of vide order dated 06.09.2006 and the order of termination of the petitioner was quashed and she was re-instated in her service with 50 per cent back wages and liberty was given to the respondents to initiate appropriate proceeding, if they so desired, as evident from Annexure-1 to the writ petition. In pursuance to the order of this Court, the petitioner was reinstated in service, and since the arrears of salary was not paid, the petitioner filed a contempt case bearing Contempt Case (C) No. 527 of 2007. It has been averred that after receipt of the contempt notice, the Head Master of the School in question, became vindictive and on the basis of the alleged complaint filed by 13 staff members of the School, the Head Master issued a show cause notice dated 30.09.2008 and 03.10.2008. On receipt of the show cause notice, the petitioner has sought for the copy of the complaint Petition, as evident from Annexure-2 series. Thereafter, the respondent no. 6, the Head Master of the School after receipt of the show cause reply requested respondent no. 5 to take action against the petitioner and thereafter, the respondent no. 5 has issued Charge-sheet dated 18.11.2008, based on the complaint petition dated 26.09.2008 to the petitioner, annexing the copy of the complaint petition dated 26.09.2008, as per Annexure-3 series. On receipt of the charge, the petitioner submitted her explanation vide letter dated 21.11.2008 and 24.11.2008 before the respondent no. 5. Being dissatisfied with the show cause replies, the respondent no. 5 issued letter dated 03.01.2009, directing the Enquiry Officer to conduct a Domestic Enquiry in respect of the charges. The Enquiry Officer conducted the enquiry without affording reasonable opportunity to the petitioner and concluded the enquiry in a hot haste and the Enquiry Officer opined that the charges against the petitioner have been proved beyond all doubts and the petitioner has been guilty of the said charges. It is also averred in the writ application that the request of the petitioner to engage an Advocate was not acceded by the Enquiry Officer 3 and the enquiry report was based on complain of 27 staffs, whereas, the Charge Sheet was based on the complain of 13 persons and the copy of the Enquiry Report dated 20.02.2009, was supplied to the petitioner to afford her opportunity to make representation. Thereafter, the Disciplinary Authority on the basis of the Enquiry Report dismissed the petitioner from services vide order dated 31.03.2009, issued by the Secretary Shyama Prasad High School, Khasmahal, Jamshedpur-2, as contained in the said letter vide Annexure-9 to the writ petition.
During pendency of the writ petition, a supplementary affidavit has been filed by the petitioner, wherein, it has been submitted that in the meeting held on 30.03.2009, the Managing Committee of the Shyama Prasad High School, Khasmahal, Jamshedpur-2 unanimously decided to dismiss the petitioner from her services. Accordingly, the petitioner has been dismissed with effect from 31.03.2009 by the Secretary of the Managing Committee of the Shyama Prasad High School, Khas Mahal, Jamshedpur-2 and the proceeding of the meeting of the Managing Committee has been annexed as Annexure-10. The Secretary of the School vide letter dated 20.11.2013 furnished information to the Dist. Education Officer cum Public Information Officer, East Singhbhum, Jamshedpur regarding appointment of the members of the Managing Committee of the Shyama Prasad High School, Khasmahal, Jamshedpur-2, who participated in the meeting dated 30.03.2009, as per Annexure-11 to the supplementary affidavit and on perusal of Annexure-11, it shows that the date of appointment of 7 members, who participated in the Managing Committee's meeting held on 30.03.2009 is 22.12.2004 and on the date of appointment of two other members, who participated in the meeting on 30.03.2009, is April, 2006 and it has been submitted that the legality and validity of appointment of the aforesaid two members appears to be concocted and fabricated and it has been contended also that the letter dated 24.09.2014, issued by the Respondent No. 5 shows that no new member has been elected/nominated between 2004 and 2009 and the Managing Committee's decision dated 30.03.2009 cannot be a legal and valid one.
3. Per contra, a counter affidavit has been filed on behalf of the respondent no. 4, wherein, it has been submitted that the order of 4 termination has not got the approval from the Vidyalaya Seva Board. The service condition of the minority schools teaching and non-teaching staffs have been dealt with by the management of the concerned school but the cause of action as per the prescribed law must be approved by the Vidyalaya Seva Board which has not been done by the school committee, as such, the said order of termination is not maintainable in law.
4. Counter affidavit has been filed by the respondent nos. 5 and 6 controverting the averments made in the writ application. In the counter affidavit, it has been submitted that the dismissal of the petitioner from her service as an Assistant Teacher is fully justified on account of her gross misconduct, habitual quarrelling with the colleagues, using of abusive language as well as willful disobedience of the orders of superior authority. The departmental proceeding has been conducted after affording full opportunity to the petitioner. Basing on the findings of the Enquiry Officer, the petitioner was given opportunity to submit her representation, if any, against the report and the findings of the Enquiry Officer. The Management after considering the report and the findings of the Enquiry Officer also gave a notice of punishment to the petitioner as per Annexure- A to the counter. It has further been submitted that Section 18 (3) of the Bihar Secondary Schools Taken over Act, 1981, inter alia, stipulates that in case of appointment and termination/dismissal, the Managing Committee of a recognized Minority Secondary School is adequately empowered but in actual practice, no prior approval for appointment and termination in Minority Secondary School is taken, but, intimation is given to the appropriate authority about such appointment and termination/dismissal and the copy of the termination has been forwarded to the Director, Secondary Education, Government of Jharkhand, Ranchi. It has further been submitted that the writ petition is not maintainable in view of the Jharkhand Educational Tribunal Act, 2005. Clause 2 (m) states about service matter in relation to a person/persons relating to the conditions of his service in question with the affairs of the educational institution other than government institution. Clause 2 (n) of the Educational Institution means any educational institution managed and administered by private management located within the State of Jharkhand as per the Jharkhand 5 Education Tribunal Act, 2005. Therefore, Chapter III-jurisdiction, power and authority of Tribunal, Section 8, clause (b) says about matters concerning the service condition of the employees of Educational Institution (Civil) grievances of the employees against the Management of the Educational Institution and as per Section 15, appeal lies against the order/direction/judgments passed by the Tribunal will be before the Jharkhand High Court as per Annexure-J to the counter affidavit.
5. Learned counsel for the petitioner has strenuously urged that the order of dismissal of the petitioner from services by the respondent no. 5, as contained in Annexure-9 is without any basis and has been passed with an ulterior and vindictive attitude of the management and the Headmaster of the Shyama Prasad High School, Khasmahal, Jamshedpur-2 as the impugned order of dismissal has been passed without serving the second show cause notice to the petitioner. The Disciplinary Authority has not taken into consideration the representation of the petitioner to the enquiry report. The learned counsel for the petitioner further submits that the impugned order of dismissal is vitiated in law due to non-observance of the Rule/Principle of natural justice and the same has been passed in a pre- meditated notion. Learned counsel for the petitioner further submits that the extreme penalty of dismissal from services on the charges of so-called misconduct is grossly disproportionate to the proved charges and the punishment is extremely harsh, shockingly disproportionate to the conscience being violative of Articles 14, 16, 19 and 21 of the Constitution of India. Learned counsel for the petitioner, during course of hearing, has referred to the decision of the Hon'ble Apex Court reported in (1988) 1 SCC 206, All Bihar Christian Schools Association And Another-versus- State of Bihar and others, wherein, the Hon'ble Apex Court in paragraph 14 has been pleased to inter alia hold that clause (d) of Section 18 (3) of the Bihar Non-Government Secondary Schools (Taking over of Management and Control), Act, 1981 expressly provides that while considering the question of granting approval to the disciplinary action taken by the management of a Minority institution of the School Service Board shall scrutinize whether disciplinary proceedings had been taken in accordance with the rules and no more. This is regulatory in nature and no unguided, 6 uncanelized and blanket power has been conferred upon the School Service Board. Learned counsel for the petitioner submits that the aforesaid act has been adopted by the State of Jharkhand by virtue to the Bihar Re- organization Act, but, in the instant case, the impugned order of punishment of the Managing Committee has not been approved by the School Service Board, which renders the impugned order nugatory.
6. As against the submissions of the learned counsel for the petitioner, learned counsel for the Respondent-State has raised objection to the maintainability of the writ application by referring to decision of the Hon'ble Supreme Court reported in (2015) 6 SCC 773, U.O.I. & Ors.-Vs.- Major General Sri Kant Sharma & Anr.
7. Learned counsel for the respondent nos. 5 and 6 has also vehemently submitted that there has been no irregularity from the initiation of proceedings till its culmination and basing on the enquiry report, the disciplinary authority has passed the order of punishment, which is commensurate to the alleged misconduct. Apart from justifying the impugned order of punishment, learned counsel for the respondent nos. 5 and 6 submits that as per the Jharkhand Educational Tribunal Act, 2005, the petitioner should have approached the Educational tribunal and under Section 15 of the said Act, Appeal lies against the orders/directions/judgments passed by the Tribunal would be before the Jharkhand High Court. Therefore, on that score, the writ petition is not maintainable.
8. Having heard the learned counsel for the respective parties and upon bestowing my anxious consideration to the documents on records, I am of the considered view that the petitioner has been able to make out a case for interference, basing on the foundational facts, as stated hereinbelow: -
(i) In the instant case, the impugned order of punishment has been passed without issuance of second show cause, which has caused gross prejudice to the petitioner. Moreover, the impugned order of punishment has been passed in a pre-
conceived notion, which has caused untold suffering due to the imposition of extreme penalty of dismissal from services.
(ii) Assuming that the petitioner has committed gross 7 misconduct, but considering the charges proved, the punishment awarded appears to be harsh and shockingly disproportionate being violative of Articles 14, 16, 19 and 21 of the Constitution of India.
The Hon'ble Apex Court in the case of Lucknow Kshetriya Gramin Bank & Anr. Vs. Rajendra Singh as reported in (2013) 12 SCC 372 in the placitum held as under:
"However, the judicial review of the quantum of punishment is available with a very limited scope. The court would frown upon only when the penalty imposed appears to be so disproportionate to the nature of misconduct that it is shocking to the conscience of the court. Even in such a case when the punishment is set aside as shockingly disproportionate, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case."
(iii) Another infirmity in the impugned order is that the order of punishment of dismissal has been passed by the Managing committee, which has not been approved by the School Service Board, thereby rendering the impugned order neugatory.
9. On cumulative effect of the facts, reasons and judicial pronouncements and as a logical sequitor, the impugned order of punishment dated 31.03.2009 vide Annexure-9 to the writ petition, passed by Respondent no. 4 pertaining to dismissal from services, being not legally sustainable, is hereby quashed and set aside and the matter is remitted to the concerned respondents to pass appropriate order taking into consideration the gravity of the charges on the quantum of punishment in accordance with law within a period of eight weeks from the date of receipt/communication of the order.
10. With the aforesaid observations and directions, the writ petition stands disposed of.
(Pramath Patnaik, J.) APK