Calcutta High Court
Rajesh Dubey vs The State Of West Bengal & Ors on 25 March, 2010
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
Present:
The Hon'ble Justice Debasish Kar Gupta
W. P. No.1376 of 2008
Rajesh Dubey
versus
The State of West Bengal & Ors.,
For Petitioner : Mr. M. M. Verma,
Mr. Sougata Bhattacharya.
Fir Respondent : Mr. Satarup Banerjee,
Mr. Ayan Chakraborty.
Order On: 25-3-2010.
This writ application is filed challenging the order of termination dated July 23, 2008 passed by the respondent no.5. By virtue of the impugned order the petitioner was dismissed from the services of an Assistant Teacher of Gangas Gurukul.
The petitioner was appointed as Assistant Teacher by the authority of Daulatram Nopani Vidyalaya, by the letter of appointment dated July 19, 1996. By an order dated November 30, 2006 he was transferred to Gangas Gurukul with effect from December 1, 2006. On November 15, 2007 the respondent no.5 issued a charge-sheet against the petitioner. The petitioner submitted his reply dated November, 22, 2007 to the same. By an order dated November 23, 2007 2 the petitioner was suspended pending the above disciplinary proceeding against him. The respondent no.6 was appointed his enquiry officer to conduct a departmental enquiry against the petitioner. After the enquiry had been concluded, the respondent no.5 sent the enquiry report to the petitioner on May 26, of 2008 to enable the petitioner to submit his representation. The petitioner submitted his representation dated June 10, 2008. The respondent no5 sent a notice dated June 28, 2008 to the petitioner for showing cause as to why the petitioner should not be dismissed from the services under reference with immediate effect. The petitioner submitted his representation dated July 4, 2007 to the above show-cause notice. Finally the respondent no.5 passed the impugned order under a communication dated July 23, 2008 dismissing the petitioner from the services with immediate effect. Hence this writ application.
According to the petitioner Daulatram Nopani Vidyalaya, was a recognized non-government unaided school and as such the authority of the above school was under obligation to follow the Management of Recognized Non-government Institutions (aided and unaided) Rules, 1969. The provisions of the above rules were not followed. According to the petitioner the respondent no.5 was not the authority to initiate a disciplinary proceeding against teaching or non-teaching staff of Daulatram Nopani Vidyalaya. Therefore, the disciplinary proceeding under reference was liable to be set aside. According to the petitioner, he was transferred to Gangas Gurukul with effect from December 1, 2006 on deputation but the period as mentioned in the charge-sheet related to the tenure of his 3 services in Daulatram Nopani Vidyalaya. According to the petitioner the principles of natural justice were violated in conducting the enquiry proceeding against the petitioner. According to the him the petitioner was a permanent teaching staff in accordance with the provisions of Rule 28(7) of the Management of Recognized Non-government Institutions (aided and unaided) Rules, 1969 and as such the disciplinary proceeding was conducted in violation of the provisions of Rules (8) and (8a) of the above Rules.
The petitioner relied upon the decisions of Praga Tools Corpn. Vs. C. V. Imanual, reported in 1969 SC 1306, Board of Trustees, Port of Bombay Vs. Dilipkumar, reported in AIR 1983 SC 109, Unni Krishnan, J. P. Vs. State of A. P., reported in 1993 SC 2178, State of Haryana Vs. Rajpal Sharma, reported in AIR 1997 SC 449, AIR India Statutory Corpn. Vs. United Labour Union, reported in AIR 1997 SC 645, K. Krishnamacharyulu Vs. Sri Venkateswara Hindu College of Engineering, reported in (1997) 3 SCc 571, unreported decision dated January 30, 2009, of Asha Srivastava Vs. The State of W. B. & Ors., (A.P.O. 273 of 2001) and unreported decision dated September 1, 2003 in the matter of Mr. Debdas Bhattacharyya Vs. Mrs. Sonia John & Ors.( in re. W.P.959 of 1999) in support of his above submissions.
The above submissions are vehemently opposed by the learned advocate appearing on behalf of the respondent nos. 4,5,6 and 7. According to him the point of maintainability of this writ application was kept open by an order dated 4 August 28, 2008 passed in this matter. According to him the petitioner was on probation as an Assistant Teacher of Gangas Gurukul. Gangas Gurukul was not an institution recognized under the West Bengal Board of Secondary Education. He was never appointed against any permanent vacancy of an Assistant Teacher in Daulatram Nopani Vidyalaya with the prior approval of the respondent no.3. According to him annexure P-1 at page 41 to the writ application was not the letter of appointment of the petitioner. According to him the petitioner was appointed in Gangas Gurukul under the provisions of Staff Rules and Regulation of the Nopani Group of Schools. He was on probation in accordance with the provisions of the above rules and regulation. The respondent no.5 was the disciplinary authority of the petitioner in accordance with the provisions of Clause 1(e) of the above Staff Rules and Regulations and as such there was no illegality or impropriety in passing the impugned order.
During the hearing of this case the Director of School Education, Government of West Bengal was directed by an order dated....... To submit a report containing the following information:-
a) "The name of the appointing authority of teachers in the institution which was a government aided school.
b) Whether the petitioner was appointed in the aforesaid institution by the competent authority for appointment of a teacher in the aforesaid Government aided institution.
c) Whether the aforesaid Government aided institution received any amount for payment of D. A. or any other allowance payable to the petitioner as a teacher of the aforesaid Government aided institution.
d) Any other document which is relevant to prove the status of the petitioner as to whether the was the teacher of the Government 5 aided institution namely, Shri Doulatram Nopani Vidayalaya or otherwise."
In compliance of the above order, the Director of School Education, Government of West Bengal submitted his report by way of an affidavit affirmed on January 11, 2010 containing the following information:
I) "That the school involved in this case namely Sri Nopany Vidyalaya, 2D Nano Mallick Lane, Kolkata-
700066 is a school recognized by the West Bengal Board of Secondary Education. The School drew Government Dearness Allowance component only for the approved staff upon the month of July, 2007 in the status of a Dearness Allowance getting school.
II) That Afterwards i.e. after 31.7.2007 the school did not furnish any claim/requisition for getting Government Dearness Allowance, in absence of any approved staff who are eligible to get Government Dearness Allowance component. As a result, the release of Government Dearness Allowance component did not arise from this end from 01.08.07 onwards.
III) That the Government of West Bengal/concerned District Inspector of Schools release Government Dearness Allowance component only for the approved teaching and non-teaching staff as per provisions laid down in 641-SE(Law) dated 29.05.2002 on the basis of the requisition furnished by the school authority. In respect of other unapproved staff, if any, as well as also for the other component viz. Provident Fund, Gratuity etc. in favour of the approved staff also this officer has no concern. It is learnt that the petitioner is/was not approved staff for getting Government Dearness Allowance component. I further say that the matte relating to any disciplinary proceedings of any staff of the school recognized by the Wet Bengal Board of Secondary Education is a bi-polar process between the school and the West Bengal Board of Secondary Education. This office as well as the office of the District Inspector of Schools(SE), Kolkata has no role in this regard.
6IV) That it may be mentioned that after retirement of Sri Ramkripal Shah (with effect from 01-08-2007), approved staff of the school, after attaining the age of 60 years as it appears from the Memo no.578/M dated 10-05-1990, the date of birth of Sri Shah being 02-07- 1947, no approved staff who were eligible to enjoy Government Dearness Allowance component is/ was in existence and as such the bonding with the school was automatically ceased as regard payment of Government Dearness Allowance component and others.
V) That in fine, I beg to furnish the following information on the poins in seriatim as mentioned in the solemn order dated 03-12-2009 passed by the Hon'ble Justice. A) The name of the appointing authority of the staff in the school in question namely Sri Doulatram Nopany Vidyalaya is the Managing Committee/Administrator of the concerned school which was as Dearness Allowance getting school and getting Dearness Allowance upto 31-07-2007.
B) This office release Government Dearness Allowance component on the basis of requisition submitted by the school authority against approved staff only and no approval in respect of the drawl and disbursement of Government Dearness Allowance in favour of the petitioner was ever accorded by this office. The matter regarding appointment, if any, is best known to the school authority.
C) In absence of any approval accorded by the competent authority the question of payment of Dearness Allowance in favour of the petitioner does/did not arise. The school received Government Dearness Allowance for the approved staff of the school upto 31-07-2007 when the only approved staff namely Sri Ramkripal Shah enjoyed Government Dearness Allowance till his retirement on 31-07-2007 after attaining the age of 60 years.
D) The school enjoyed the status of a D. A. getting school claiming Govt. D.A. upto 31-07-2007 and not as a normal Non-Govt. Aided School recognized by the West Bengal Board of Secondary Education".
7I have heard the learned counsels appearing for the respective parties and also taken into consideration the facts and circumstances of this case. Admittedly the letter of appointment of the petitioner in the school under reference has not been annexed to this writ application. A specimen copy of the letter of appointment is annexed to this writ application. From the report of the Director of School Education, West Bengal it is revealed that the petitioner was an approved Assistant Teacher of Daulatram Nopani Vidyalaya. It is further revealed from the above report that the Daulatram Nopani Vidyalaya received dearness allowance component for the approved teaching or non-teaching staff up to the month of July 2007. It is also revealed from the above report that the petitioner was neither an approved teaching staff of Daulatram Nopani Vidyalaya nor the Government dearness allowance was drawn by the above school in him. Therefore, the respondents were not under obligation to follow the provisions of Rule 7 or 8(a) of the Management of Recognized Non-Government Institutions (aided and unaided) Rules, 1969 in the matter of conducting disciplinary proceeding against the petitioner. No writ of mandamus can be issued against the authority of the school for adhering to the aforesaid rules in the matter of disciplinary proceeding under reference. Therefore, the rights as claimed by the petitioner were purely of private character and no mandamus can be issued. Reference may be made to the decision of Abdur Rahaman Vs. Deputy Director of School Education, reported in 1991(1) CLJ 80.
8
The decisions relied upon by the petitioner do not have any manner of application in the instant case for the following reasons. The point for consideration before the Hon'ble Supreme Court in Praga Tools Corpn(supra) was that whether the Praga Tools Corpn. was a Government Corporation or an industry run by or under the authority of the Union Government on the basis of the facts and circumstances of that case. It was decided in the Sri Anadi Mukta Sadguri S.M.V.S.J.M.S. Trust Vs. V. R. Rudani, reported in 1989 SC 1607 that if the management of the college was purely private body with no public duty mandamus would not lie. In the matter of Unnikrishnan(supra) it was decided by the Hon'ble Supreme Court that the right to education, understood in the context of articles 45 and 41 of the constitution of India means (a) every children/citizen of this country had a right to free education until he completed the age 14 years and after a child/citizen completed 14 years his right to education is circumscribed by the ills of economic capacity of the State and its development. It was decided in the matter of Rajpal Sharma(supra) that teachers in a private management aided school in the State of Haryana were entitled to same salary and dearness allowance as is paid to the teachers in the Government Schools. In the matter AIR India Statutory Corpn.(supra) the right of the contact labour for regularization in service under the contract labour (regulation and abolition) Act was determined. In the matter of K. Krishnamacharyulu(supra) the right of an employee of non-aided private educational institution to claim pay parity in pay scales with the employees of the 9 Government institutions was decided on the basis of the facts and circumstances involved in that case. In the unreported decision Asha Srishasbastava it was decided that the Primary Education was within the domain of the fundamental rights of the students and the teachers imparting primary education would come under the domain of public law. In the unreported decision of Mr. Debdas Bhattacharya the right of the petitioner to get the revised salary on the basis of the facts and circumstances of that case was decided.
In view of the discussions and observation this writ application fails. There will be, however, no order as to costs.
Urgent Photostat plain copy of this order, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard ( Debasish Kar Gupta, J. ) Later:
10
Date- 25.03.2010 A prayer is made on behalf of the petitioner for staying operation of this order. Such prayer is rejected.
( Debasish Kar Gupta, J. )