Calcutta High Court (Appellete Side)
Tapan Kumar Das vs 9.05.16 The State Of West Bengal & Ors on 19 May, 2016
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
W. P. No.30041 (W) of 2015
Tapan Kumar Das
v.
19.05.16 The State of West Bengal & Ors.
Sl-22
(S.R.) Mr. Siddhartha Banerjee ... for the petitioner.
Ms. Tapati Samanta ... for the State.
Mr. Kamal Mishra ... for the council.
The instant writ application has been preferred
challenging, inter alia, an order of suspension dated 9th
September, 2013 issued by the respondent no.4.
Mr. Banerjee, learned advocate appearing for the petitioner submits that while the petitioner was discharging his services in the post of an assistant teacher of primary at Gokulnagar Primary School (hereinafter referred to as the said school) under the Purba Medinipur District Primary School Council (hereinafter referred to as the said council), the petitioner was issued a show-cause notice under Rule 9(2) of the West Bengal Primary Education (Conduct of Service of Teachers of Primary Schools) Rules, 2001 (hereinafter referred to as the said Rules of 2001) on 31st July, 2013. The petitioner duly replied to the same on 12th August, 2 2013. Subsequent thereto, on 9th September, 2013 the petitioner was issued an order of suspension. The petitioner thereafter made a representation on 18th October, 2013 praying for revocation of the order of suspension and for permission to resume his duties. The said representation was followed by further representations on 13th November, 2013 and 13th December, 2013 but the same were not responded to and the petitioner has been kept under suspension for a period of about three years till date.
He further submits that the respondents have also withheld the subsistence allowance and other dues to which the petitioner is entitled to as per the provisions of the relevant rules. Salaries pertaining to a period prior to suspension have also been withheld by the authorities without any reason.
He further submits that till date no charge-sheet has been issued against the petitioner and no inquiry has been conducted in terms of the provisions of the said Rules of 2001. In contemplation of a disciplinary proceeding, the petitioner has been kept under suspension for an indefinite period which severely affects his right to livelihood. In support of his contention 3 reliance has been placed upon a judgment delivered in the case of Samiran Chakraborty v. Union of India & Ors., reported in 1992 (1) CHN 398 and a judgement delivered in the case of Ajay Kumar Choudhary vs. Union of India through its Secretary & Anr., reported in AIR 2015 SC 2389.
Mr. Mishra, learned advocate appearing for the council disputes the contention of Mr. Banerjee and submits that the there is no infirmity in the decision making process.
I have heard the learned advocates appearing for the respective parties and I have considered the materials on record.
The undisputed facts are that the show-cause notice under Rule 9(2) of the said Rules of 2001 was issued on 31st July, 2013. The order of suspension was issued on 9th September, 2013. In the order of suspension itself it was stated that during the first three months of suspension, the petitioner will be entitled to a monetary subsistence allowance equal to the payment of amount of pay which the petitioner would have drawn had he been on half-pay leave and that in the event the period of suspension exceeds three months, the subsistence 4 allowance could be increased by the appointing authority for the remaining period of suspension by such amount, as the appointing authority may deem, fit and proper and that the petitioner would also be entitled to the dearness, medical and other allowances, admissible from time to time, on the basis of subsistence allowance fixed by the competent authority. Till date no charge-sheet has been issued against the petitioner.
It is well settled that suspension is essentially transitory or temporary in nature and must perforce be of a short duration. If such order of suspension is for an in- determined period or if its renewal has no reason, it would be punitive in nature and the order of suspension which has continued for a period of about three years severely affects the petitioner's livelihood. Furthermore, the respondents cannot withhold the subsistence allowance of the petitioner.
Applying the proposition of law to the facts of the case, I am of the opinion that the petitioner's representation for withdrawal and revocation of the order of suspension needs to be considered and decided by the respondent no.4, through issuance of an order based on sound reasoning contemporaneously on record. 5
Accordingly, this Court directs the respondent no.4 to disburse the arrears of subsistence allowance, as referred to in the order of suspension dated 9th September, 2013 within a period of four weeks from the date of communication of this order. This Court further directs the respondent no.4 to consider the representations made by the petitioner on 18th October, 2013, 13th November, 2013 and 13th December, 2013 annexed at pages 46 to 48 of the writ application towards resumption of duties and to take a decision in the light of the observations made in this order and in accordance with law and to communicate the same to the petitioner within a period of six weeks from the date of communication of this order along with a copy of the writ application.
With the above observations and directions, the writ application is disposed of.
There shall, however, be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be handed over to the parties on compliance of necessary formalities.
(Tapabrata Chakraborty, J.) 6