Calcutta High Court (Appellete Side)
Smt. Sutapa Chowdhury (Dasgupta) vs State Of West Bengal & Ors on 15 July, 2016
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Subrata Talukdar
W.P. 15005 (W) of 2015
Smt. Sutapa Chowdhury (Dasgupta)
-Vs.-
State of West Bengal & Ors.
For the Petitioner : Mr. Mrinmoy Bhattacharyya
For the State : Mr. Hirnamoy Bhattacharya
Heard on : 04/03/2016
Judgment on : 15/07/2016
Subrata Talukdar, J.: In this writ petition, the writ petitioner
challenges the inaction on the part of the competent respondent
authorities to release both her arrear salaries and the retirement dues in her favour, inspite of the fact that from 2011 she is no more in the service of the School in issue.
The brief facts of the case are that the petitioner was appointed on voluntary basis to the School in issue which caters to the mentally handicapped under the Directorate of Mass Education Extension, Government of West Bengal (for short DMEE). The petitioner was appointed on 7th November, 1994 and, upon the School receiving recognition from the DMEE w.e.f. 1st April, 1997 the petitioner was posted as Hostel Superintendent w.e.f. the said date. On approval of her appointment the petitioner became eligible to receive pay and allowances as per GO dated 28th July, 1997.
The approval of the petitioner along with other staff of the School in issue was communicated by the DMEE on the 4th of October, 2004. It is relevant to record that the petitioner prayed for a long leave from the School in issue in September 2011 for visiting her two daughters who are residing abroad. Since no reply was received from the School Authority in support of her prayer for leave, the petitioner submitted her resignation w.e.f. 1st January, 2012.
It appears from a Memo dated 8th August, 2014 from the DMEE to the Secretary of the School in issue on the subject of the purported resignation of the petitioner that the Managing Committee (for short MC) of the School in issue vide its meeting dated 9th September, 2013 adopted a resolution which tantamounts to termination of the service of the petitioner w.e.f. 16th November, 2011. It also transpires from the said Memo dated 8th August, 2014 that prior to termination the procedural aspects connected to such termination which are required to be followed and documents in support of such procedural aspects were called for by the DMEE. It was also made clear by the DMEE that in the event the resolution terminating the service of the petitioner is found to be procedurally flawed, then the MC would have to act on the resignation submitted by the petitioner w.e.f. 1st January, 2012 (supra).
From the records it further transpires that the petitioner again highlighted her grievances before the DMEE and, by an order dated 24th September, 2014 bearing the Memo No. 272/G-6-1(7) the DMEE was sanctioned her GPF contribution treating the petitioner to have resigned from service. Copies of the said Memo dated 24th September, 2014 were forwarded both to the petitioner and to the Secretary/Principal of the School in issue.
Sri Mrinmoy Bhattacharyya, Ld. Counsel appearing for the petitioner submits that the resignation of the petitioner w.e.f. 1st January, 2012 ought to have been acted upon by the School authority in concert with the competent State Authority being the DMEE. Taking this Court to the Service Rules governing the petitioner, Sri Bhattacharyya points out that Rule 23(a) of such Service Rules vide memo of the DMEE dated 28th July, 1997 makes it clear that the service of a permanent employee may be terminated upon notice of three months or, alternatively a permanent employee may resign with a notice period of three months. Rule 23(b) provides that it is the duty of the School in issue to ensure that an employee submitting resignation is not detained unnecessarily in the service of the School unless there is any specific reason for doing so and, in such event such reasons should be communicated to the employee in writing. In the absence of applying the notice period, Rules 23(c) and (d) provide payment of salary in lieu of notice period.
It is the specific contention of Sri Mrinmoy Bhattacharyya that the provisions of Rule 23 of the Service Rules (supra) have not been followed in the case of the petitioner. Sri Bhattacharyya submits that the petitioner was arbitrarily treated as terminated by the MC of the School in issue vide its resolution dated 9th of September, 2013 although, it is apparent that the procedural aspects of following such resolution were not supplied to the DMEE as evident from the latter's communication dated 8th of August, 2014.
It is the further argument of Sri Mrinmoy Bhattacharyya that no Disciplinary Proceedings (for short DP) were initiated against the petitioner and, there can be no termination without a valid DP. In the absence of a DP any unilateral resolution terminating the service of the petitioner is bound to fail on the ground of absence of due process as well as failure to comply with the principles of natural justice. In support of his submissions Sri Bhattacharyya relies upon the decision of the Hon'ble Apex Court reported in AIR 1996 SC 2757 in the matter of Chief Engineer & Anr. vs. K. Raman (at Paragraphs 6 and 15). Sri Bhattacharyya further argues that the petitioner has put in regular service of nearly 14 years prior to submitting her resignation w.e.f. 1st January, 2012. Therefore, she is entitled to enjoy retirement benefits qua her regular service.
Arguing for the State-respondents Sri Hiranmoy Bhattacharya, Ld. Counsel submits that no challenge has been thrown by the petitioner to the resolution of termination adopted by the MC dated 9th September, 2013. The writ petition was filed only in June, 2015 and, the termination order cannot be faulted on the ground of dealy.
Sri Hiranmoy Bhattacharya further argues that the petitioner has, at best, a monetary claim and, such monetary claim is not maintainable beyond its period of limitation. In view of the petitioner receiving her GPF contribution vide the order of DMEE dated 24th of September, 2014, there is no further room for the petitioner to mount any other challenge in respect of her service.
Replying to Sri Hiranmoy Bhattacharya, Sri Mrinmoy Bhattacharyya submits that the resolution of termination dated 9th of September, 2013 was disclosed to the petitioner only in 2014 thereby necessitating the present writ petition which was filed in 2015. Moreover, the MC of the School in issue did not send any information to the writ petitioner but only to the DMEE. Therefore, Sri Mrinmoy Bhattacharya argues that there is no delay in filing the present writ petition.
Having heard the parties and considering the materials on record, this Court finds that by the Memo dated 8th of August, 2014 the DMEE called upon the School in issue to furnish procedural support in aid of the MC' resolution of termination dated 9th of September, 2013. None has appeared in spite of notice directed by this Court to represent the School Authority and, the requirement of the letter dated 8th of August, 2014 of the DMEE (supra) remains unanswered before this Court at the conclusion of hearing.
This Court must thus necessarily presume that in the absence of production of the procedural evidence by the MC of the School in issue in support of its resolution dated 9th September, 2013 even before the DMEE, who is represented by Sri Hirnamoy Bhattacharya, the DMEE proceeded to treat the petitioner as having resigned from service and, accordingly directed release of her GPF contribution. The satisfaction of the DMEE that the petitioner was paid her GPF contribution in the light of her resignation has not been questioned by the School Authority. Additionally, this Court is required to notice the provisions of Rule 23 of the Service Rules (supra) which, inter alia, provide for a notice period for a resignation to become effective.
Accordingly, to the mind of this Court the MC of the School in issue was required to take steps in terms of the resignation letter of the writ petitioner and, in lieu thereof the purported resolution to terminate the service w.e.f. 9th of September, 2013 cannot be sustained.
This Court must also notice that the petitioner was treated to be confirmed in service w.e.f. April, 1997 and continued to be in service at least till 2011 when she applied for leave to visit her daughters, the same constituting a regular service of 14 years which has not been disputed by the School Authority. Thereafter, the petitioner purported to resign from her post effective 1st January, 2012. It was therefore incumbent upon the MC of the School in issue to take a decision on her resignation which precedes by a substantial length of time the purported resolution terminating her service taken by the MC on the 9th of September, 2013.
In the backdrop of the above discussion the resolution of the MC dated 9th September, 2013 terminating the service of the petitioner from the School in issue is set aside. The matter is remanded to the Director, DMEE to take a decision on the accrued service benefits legally receivable by the petitioner in accordance with law and, in the light of the observations made above in this order by affording an opportunity of hearing to the petitioner or her authorized representative and to the School Authority within a period of 12 weeks from the date of communication of this order.
The reasoned order of the DMEE shall be then communicated to the parties within a further period of two weeks thereafter and, the DMEE shall be also entitled to pass consequential orders in support of his reasoned order.
WP 15005(W) of 2015 stands accordingly disposed of. There will be, however, no order as to costs.
Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Subrata Talukdar, J.)