Maharaj Sinha, J.
1. An order of dismissal dated 29th September, 2001 of the petitioner as a class-IV employee of DumDum Vidya Mandir Coeducation High School, at 4 Mordecai Lane, Calcutta - 700 074, is essentially under challenge in this writ application. The said order of dismissal, needless to mention, was approved by the Board under the provisions of Sub-rule 8 of Rule 28 of the Rules for Management of recognised Non-Government Institutions (Aided and Unaided), 1969. The word 'Board', needless to mention again, means the West Bengal Board of Secondary Education established and/or constituted under the provisions of the West Bengal Board of Secondary Education Act, 1963. A writ in the nature of mandamus has also been sought for by the petitioner for compelling the school authority to allow the petitioner to join as a regular class-IV employee a metron of the said school and for payment of her salary 'month by month'.
2. The present petition is, in fact, the 4th writ petition by which the above order of dismissal of the petitioner has been challenged and before moving this writ petition the petitioner had to invoke the writ jurisdiction of this Court on three more occasions and chronologically, therefore, the present is the 4th writ petition moved by the petitioner.
3. The first of such writ application, CO. No. 2826(W) of 1991 was disposed of by the Hon'ble Single Judge (late Justice Mohitosh Mazumdar) on 14.2.1991 whereby, (as detailed later} the concerned respondent was directed to pass a final order after due compliance of Sub-rule 8 of Rule 28 of 1969 Rules. The petitioner was also given liberty to challenge such order 'before the Appellate authority under the relevant provisions'. The second writ application CO. No. 5199(W) of 1992 however, it appears, was dismissed summarily on 27 May 1992 by the Hon'ble single Judge (late Justice K.M. Yusuf). The third writ application was moved by the writ petitioner challenging an earlier order of termination of the petitioner as metran of the said school and seeking other reliefs. The petitioner, in fact, succeeded in the said third writ application both before the learned single Judge and also before the Appeal Court to which I shall refer in a little detail as the said third writ proceeding and the orders passed therein have the most material bearing upon the merits of the present writ application and as such those are of vital importance.
4. Thus, in order to consider the merits of the present writ petition and to decide the issue or issues raised herein, both the past and the present facts leading to the present proceeding need, I think, be mentioned in brief.
5. The writ petitioner was appointed as metron (which has the status of/class-IV staff) of the said Dum Dum Vidya Mandir Co-education High school and such appointment of the petitioner was approved by the concerned district inspector of Schools of Secondary Education of North 24-paraganas with effect from 2 January 1971. At the time of her above appointment the petitioner only completed school final examination successfully but thereafter she succeeded in preuniversity examination in the year 1974, obtained B.A. degree in the year 1979 and also became a Master's degree holder in Bengali in the year 1988. The petitioner also became a member of the Managing Committee of the said school for two terms before 1988 as the representative of the non-teaching staff of the said school. As a member of the said Managing Committee of the said school she made a complaint to the Secretary of the said committee about certain irregularities regarding the functioning of the said committee.
6. Having received the said complaint dated 19 September 1988 the Managing Committee of the said school by its letter sought for some clarification from the petitioner regarding the above complaint with evidence and proof in support thereof and the petitioner in her turn replied to the said letter of the Managing Committee by which such clarification was sought for, it appears, the Managing Committee was not quite happy with the reply of the petitioner to the said letter, however, the committee did not proceed thereafter though it is alleged in the writ petition that the Managing Committee in its turn made some false allegations against the petitioner but the petitioner had to keep quite as she felt helpless being alone against the mighty school authority.
7. However, although the said chapter was closed with the letter of the Managing Committee addressed to the petitioner on 22nd April 1987, the petitioner was served with an order of suspension on 2nd September, 1987 by the Secretary of the Managing Committee with effect from 3rd September, 1987 but no reason in support of such order of suspension against the petitioner was however, disclosed by the Managing Committee or rather the Secretary of the Managing Committee. The petitioner in her turn requested the school authority namely the Managing Committee to withdraw the said order of suspension and allow her to join the school. The secretary of the Managing Committee of the said school after issuing the said order of suspension informed the petitioner that her case was held up as the said complaint made by her was still to be finalised.
8. By another letter dated 30th October, 1987 the petitioner was asked by the Secretary of the Managing Committee of the said school to appear before on Managing Committee on 2nd November, 1987 together with her evidence in support of her said complaint. When the petitioner appeared before the Managing Committee as asked for by it, the petitioner was asked to give the undertaking in writing that she had no proof in support of her complaint and that she would never make any such complaint in future.
9. The petitioner, however, refused to give such undertaking in writing and in consequence of such refusal on the part of the petitioner, the school authority, it is alleged, became 'furious' and in order to remove her from service issued a chargesheet against her on 19th November, 1987. In the said chargesheet some false and baseless allegations and/or charges were made against the petitioner. The petitioner in her turn duly replied to the said chargesheet by her letter dated 24.11.1987 and also preferred an appeal to the Appeal Committee of the Board (namely the West Bengal Board of Secondary Education constituted under the said 1963 Act, as aforesaid), against the said order of suspension and the said appeal was heard by the Appeal Committee on 9th December, 1988 in the presence of the Secretary and the Headmaster of the said school. By an order dated 29th March, 1989 the said Appall Committee allowed the said order of suspension to continue till the final hearing of the appeal recording at the same time that the appeal itself was disposed of by the said order dated 29th March, 1989 of the Board. By the said order, however, the Managing Committee of the school was directed to send all the papers as required under Sub-rule 8 or Rule 28 of the said 1969 Rules for Board's approval for initiating the disciplinary proceedings against the petitioner.
10. On 16th August, 1989 by a 'show cause' notice the petitioner was asked by the Secretary of the Managing Committee to show cause as to why she should not be removed from her employment within the time mentioned in the said notice. Needless to mention that the said show cause was replied to by the petitioner by her letter dated 29th August, 1989 but since her case was kept pending for long the petitioner had to remove the said first writ application (as mentioned hereinabove) and the said first writ application, as aforesaid, was disposed of on 14 February, 1991 by His Lordship Justice Mohitosh Mazumdar by directing the concerned authority to pass a final order after due compliance of Sub-rule 8 of Rule 28 of the said 1969 Rules and by giving the petitioner liberty to challege the order of the concerned respondent to the Appeal Committee, meaning thereby, if the order of the concerned respondent/respondents, the Board, had gone against the petitioner. The writ petitioner also made a representation to the Board against the said order of suspension which had been made against the petitioner way back on 2nd September, 1987 and the Board in its turn by its letter dated 3rd June, 1991 asked the Secretary as of the said school to inform the Board as to whether the Order of the Hon'ble High Court and the said Appeal Committee had been complied with by the Managing Committee of the said school. But as the things came to a standstill after the said letter dated 3rd June, 1991 of the Board the petitioner had to move the said second writ petition, C.O. No. 5199(W) of 1992 but the same, as aforesaid, was dismissed summarily on 27th May, 1992 by the learned single Judge (Justice K.M. Yusuf).
11. After the dismissal of the said third writ petition, the petitioner received a letter from the Secretary of the Managing Committee of the said school dated 30th June, 1992 whereby the petitioner was informed that her service was terminated with effect from 1st July, 1992 by a resolution of the Managing Committee of the said school dated 29th June, 1992. The petitioner was requested to receive her dearness allowance and other payments till 30th June, 1992.
12. In the writ petition it is alleged in paragraph 20 that after the said order of termination of employment of the petitioner as metron of the said school the petitioner made necessary enquiry in the office of the Board as to how the said order of termination of the petitioner's employment could be made when the matter was pending before the Appeal Committee etc. and the board in its turn also wrote to the school authority as to how the said order of termination could still be made without following the relevant provisions of the said Management Rules, 1969, the Board also, it is alleged, wrote on 22nd September, 1992 to the Secretary of the school to comply with the Board's direction sent from time lo time. But in reality, it seems, the Board did not do much or did practically nothing after the said order of termination was made against the petitioner by the school authority on 30th June, 1992. The petitioner, thereafter, had to move the said third writ petition challenging the said order of termination of her employment as metron of the said school. Firstly, on 17th December, 1992 an interim order was made by the learned single Judge restraining the respondents from giving any further effect to the said letter of termination dated 30th June, 1992 until any further order. The District Inspector of Schools, Secondary Education, was also directed to submit a report as to whether the petitioner was getting the subsistence allowance during the pendency of the disciplinary proceedings.
13. The said third writ petition, however, was, after the exchange of affidavits, heard by his Lordship Justice Altamas Kabir and after considering the entire case of the petitioner and the relevant provisions namely Sub-rule 8 of Rule 28 of the said 1969 Rules, His Lordship by the Judgment and Order dated 23rd May. 1996 was pleased to quash the said order of termination of the petitioner's employment as metron of the said school. Upon consideration of the entire facts and circumstances of the case and the relevant provisions of said 1969 Rules His Lordship found that the petitioner was not given a personal hearing at any stage of the proceeding either by the school authority, or the Board, and as such the order or the decision of termination of the petitioner's employment was liable to be and was, in fact, quashed, the school authority was further directed to proceed 'de novo from the stage of the disciplinary proceedings when the chargesheet was issued to the petitioner'. The school authority was directed to give the petitioner personal hearing before proceeding with the other stages contemplated under Sub-rule 8 of Rule 28 of the said 1969 Rules including the initial reference to the Board for consideration of the matter by the Section 24 Committee'. Most importantly, however, the school authority was directed to reinstate the petitioner in service and to pay her subsistence allowance which was being paid to her after her order of suspension that was from 10th July, 1992. The respondents were also directed to pay the petitioner the current subsistence allowance immediately and the arrears were to be paid to her within four months from the date of the Judgment.
14. Needless to mention, the school authority or the Managing Committee of the said school was not quite happy with the said Judgment and Order of the Hon'ble single Judge dated 23rd May, 1996 and as such the committee preferred an appeal, but the said appeal of the Managing Committee was, however, as expected, was also dismissed by the Appeal Court presided over by his Lordship Justice Satya Brata Sinha and his Lordship Justice Satya Narayan Chakraborty on 18th July, 1996. The Appeal Court in its turn after having considered the facts and circumstances of the case, the Judgment and Order under appeal and the merits of the appeal was pleased to hold that the case of the petitioner was practically covered by the decision of the Appeal Court in the case of Sujit Das v. The State of West Bengal Board of Secondary Education in Appeal No. 225 of 1995 reported in 1997(2) CLJ 497 wherein the Appeal Court extensively dealt with the provisions contained in the said Sub-rule 8 of Rule 28 of the said 1969 Rules and the effect and ambit of the said provisions of the said Rules. The Appeal Court also stated in clear terms as to how the Managing Committee or the administrator of a school governed by the said Rules, namely Sub-rule 8 of Rule 28 of the said 1969 Rules should proceed in conducting a disciplinary proceeding against a teacher or a non-teaching staff of an aided or unaided institution.
15. For the sake of convenience and understanding the 'words used by the Appeal Court in disposing of the said appeal of the Managing Committee of the said school, the last two paragraphs of the Judgment of the Appeal Court are mentioned below:
In view of the fact that the case at hand is covered by Judgment of the Division Bench, the impugned Judgment and Order must be sustained.
For the reasons aforementioned the appeal is dismissed.
16. Subject to the observation that it would be open to the to act strictly in terms of Section 28(8) of 1969 Rules keeping in view the Judgment of this Court in Sujit Das's case (supra).
17. By the words writ petitioner/respondent No. 1 the Appeal Court definitely meant that the Managing Committee of the said school would be entitled to proceed in the matter but in so doing the Managing Committee should act strictly in terms' of the said provisions in Sub rule 8 of Rule 28 of the said 1969 Rules and also the said Judgment of the Division Bench in Sujit Das's case (supra).
18. The above are the past facts of the said third writ proceeding by which the said order of termination of employment of the petitioner as the metron of the said school, dated 30th June, 1992 was challenged.
19. Before proceeding further two things must be pointed out firstly, the Division Bench in disposing of the above appeal of the Managing Committee against the Judgment and Order of the Hon'ble single Judge made it clear that the Judgment and Order under appeal 'must be sustained' and secondly, the Managing Committee of the school could proceed against the writ petitioner herein, only upon strict compliance of the provisions of the said Sub-rule 8 of Rule 28 of the said 1969 Rules read with the Judgment of the Appeal Court in the said Sujit Das's case (supra).
20. By virtue of the said orders both of the learned single Judge and that of the Appeal Court, the Managing Committee of the said school decided to proceed against the writ petitioner by issuing a fresh chargesheet, in fact, in the language of the Secretary of the said school 'in compliance with the order of the Hon'ble Mr. Justice Altamas Kabir and that of Hon'ble Justice Satya Brata Sinha and Hon'ble Justice Satya Narayan Chakraborty, J.J, the Managing Committee unanimously decided to start de nova the case against her'. She is further requested to take note of the charges once again levelled against her. She is requested to give reply to the charges within fortnight from date of receipt of the letter.
21. The above is text of the letter of the Secretary addressed to the writ petitioner on 29th July. 1997.
22. Then comes the most important document of this proceeding, namely the chargesheet dated 29th July, 1997 in which several charges were framed agianst the writ petitioner. From the chargesheet itself it appears that the charges contained in the said chargesheet are nothing but the verbatim reproduction of the alleged charges contained in the chargesheet against the petitioner dated 2nd November, 1987 which culminated in the order of termination of the petitioner's employment as the metron of the said school which order of termination in its turn was quashed in the said third writ proceeding initiated by the writ petitioner herein, by the order of the Hon'ble Single Judge and which order in its turn, as aforesaid, was affirmed by the Appeal Court.
23. The said chargesheet, in my opinion, is extremely important and has the most material bearing upon the merits and the adjudication of the present writ petition, I would deal with the said charges separately a little later. Suffice it to say for the time being, however, that by issuing the said chargesheet the Managing Committee sought to draw up the formal proceeding against the writ petitioner and asked the writ petitioner to give reply to the alleged charges against her.
24. Needless to mention that the writ petitioner in her turn gave reply to the alleged charges against her on 12th August, 1997 that was definitely within a period of two weeks from the date of issuance of the said chargesheet dated 29th July, 1997.
25. In her said reply the writ petitioner, however, inter alia pointed out that the allegations against her in the said chargesheet were vague, evasive and they lacked in material particulars and no 'specific instance of any alleged misconduct with date and time' had been mentioned in the charge sheet.
26. She, however, denied all the allegations made against her in the said chargesheet, the reply of the petitioner, however, needs be mentioned once again when I deal with the said chargesheet issued against the petitioner by the Managing Committee of the said school.
27. It appears that by a letter of the administrator of the school dated 10th December, 1997 the petitioner was asked to be present at the office of the school on 19th December, 1997 at 1 P.M. to narrate her case relating to 'suspension since September before the sub-committee' consisting of some members of the erstwhile Managing Committee as according to the school authority the Managing Committee of the school was dissolved with effect, from 1st October, 1997 because of some dispute amongst the members of the said Committee and the said Committee again assumed its charge from the administrator on 10th August, 1998.
28. The said letter dated 10th December, 1997 as such was written by the administrator of the said school as the Managing Committee as aforesaid, stood dissolved. The petitioner, however, was unable to appear on 19.12.1997 because of her illness and as such requested the sub committee to adjourn the matter.
29. According to the petitioner, the petitioner on 6th September, 1997 appeared before the Managing Committee and requested the Committee Lo make an enquiry by an impartial person into alleged charges made against her by the Managing Committee in its said chargesheet but no such enquiry, however, took place nor any person was appointed to make such an enquiry at any stage.
30. This, however, is an admitted position. Thereafter, it appears, on 31st August, 1998 the Managing Committee of the said school met once again and having considered the alleged charges against the petitioner, contained in the said chargesheet and the reply of the petitioner to the said charges took a unanimous resolution. The petitioner was not, however, present at the meeting when such resolution was taken.
31. Since the said resolution of the Managing Committee, in my opinion, is of vital importance, the text of the said resolution is set out below:
Extract of M.C. meeting dated 31.1.1998.
Regarding Agenda No. 3 the M.C. read out the charge levelled against Smt. Santi Chakrabory in connection with Disciplinary Proceedings. Side by side the reply dated 12.08.1997 were read and considered by the Committee. The delay in considering the issue was unforeseen as the M.C. of the school was dissolved w.e.f. 1.10.1997. The school had been under Administrator Sm. Bani Mallick, A.I. of Schools (S.E.) Barrackpore 24 - paraganas (North) till 09.08.1998. The Administrator in consultation with the H.M., S.K.P., Smt. A.D. and S.D. took a resolution on the basis of which the Administrator, wrote to the W.B.B.S.E. for action. However, no action was taken from the end of the W.B.B.S.E.
The M.C. after assumption of charges from the Administrator on 10.8.1998 applied its mind on the issue. Now after considering the charges and replies the M.C. unanimously resolves as follows:
The reply to the chargesheet given by the school to the said Sm. Santi Chakraborty was read over before the members present. Specific replies thereto were thoroughly considered by the Members. In the light of the orders passed by the Hon'ble High Court from time to time, the order passed by the Division Bench of the Hon'ble High Court for giving personal hearing to Smt. Chakraborty in respect of the charges levelled against her, the Court orders were also complied with.
The Members of the M.C. expressed their grief as lo the replies of Santi Chakrabory as against the charges. According to the M.C. the answer to the charges are nothing but mere denial. No substantive and satisfactory answer to any of such charges could be given by Smt. Chakraborty to the satisfaction of the members of the M.C. During 'personal hearing' Smt. Chakraborty also refused to answer to the categorical charges and reiterated that her written replies submitted earlier should be treated as her 'Final say' and she had nothing else to say.
In such circumstances and upon consideration of all such charges, without any malice. The M.C. unanimously resolves that the charges of (i) dereliction of duties (ii) in subordination (iii) indisciplined attitude have been established against her without any doubt. The members of the M.C. have also expressed their apprehension about proper management of the school and maintaining discipline thereof amongst the teaching staff and the students.
However, considering the long attachment of Smt. Chakraborty with the school and as a gesture of humanity, equity and natural justice, the M.C. has decided to be liberal as against the charges levelled against Smt. Chakraborty. The M.C. expects normal and submissive behavioural attitude from Smt. Chakraborty, to be submissive, dutiful and serious henceforth. She should be cautioned to rectify herself in future and behave normally with all concerned.
With the observation above the resolution of the M.C. should be forwarded to the W.B.B.S.E. for its final decision in the matter of findings of the M.C. in respect of Disciplinary action against Smt. Chakraborty. The M.C. shall however, take further step or steps concerning Smt. Section Chakraborty subject to receipt of final communication from the W.B.B.S.E. in the above matter.
It was also resolved that a copy of the resolution should be forwarded to Smt. Chakraborty for her information. The House requests the Secretary to forward the papers in connection with the case to the W.B.B.S.E. at the earliest.
Sd/U.K. Sen
President.
31.8.1998.
32. The above resolution and all the papers and documents in connection with 'de novo proceeding' against the petitioner were forwarded to Board, namely the West Bengal Board of Secondary Education, here in referred to as 'Board,' on 8th September, 1998. The Secretary of the Managing Committee of the said school also on 8th September. 1998 informed the petitioner accordingly, the letter written by the Secretary in this regard to the writ petitioner is annexure P-13 to the writ application appearing at page 91 thereof. The notes of arguments filed in support of the submissions made in course of the hearing on behalf of the 4th, 5th and the 6th respondents herein, namely the Managing Committee the Secretary and the teacher incharge of the said school also affirm that the above resolution dated 31st August, 1998 of the Managing Committee was sent to the Board for its 'approval'.
33. From a plain reading of the said resolution dated 31st August, 1998 it is clear however, that the Managing Committee though thought that the alleged charges against the writ petitioner were proved according to them, yet they decided not to proceed against the petitioner any further as a 'gesture of humanity', 'equity' and 'natural justice', by taking a liberal view of the alleged charges against the writ petitioner and further decided that the writ petitioner should be cautioned and she should be told to rectify herself in 'future' and 'behave normally with all concerned.'
34. This is the plain reading of the unianimous resolution of the Managing Committee taken on 31st August, 1998 and on such reading of the resolution once again it is clear that as far as the Managing Committee was concerned the so-called 'de novo proceeding' against the petitioner which was initiated by the issuance of the said chargesheet against the petitioner came to an end with the unanimous resolution as above whereby the Committee decided not to proceed against the petitioner and wanted to give her one more chance so that she rectified her conduct in future and the said resolution needless to mention was the only unanimous proposal before the Board upon which the Board or the Section 24 Committee was supposed to take its decision in discharge of its duties in terms of Sub-rule 8 of Rule 28 of the said 1969 Rules.
35. The Board, however, in its turn having received the said resolution way back in the year 1998, to be precise in the month of September, 1998, did nothing and sat tight over the matter for at least more than two years till it decided to rise from its slumber and write to the Managing Committee of the said school on 28th November, 2000 in reply to an alleged letter of the Managing Committee dated 24th July, 2000, that the Committee constituted under Section 24 of the West Bengal Board of Secondary Education Act, 1963 in its meeting held on 8th November, 2000 took the following resolution: 'after careful observation all the facts and circumstances of the case and after perusal of the documents received resolved that the 'proposal' to initiate disciplinary proceedings against Smt. Shanti Chakraborty. a metron of the school, be approved provided there is no contrary order of the Hon'ble Court'. This communication or rather the decision of the socalled Committee under Section 24 is, in my opinion, a unique decision. The Committee as far as I have been able to ascertain from the entire facts and the circumstances of the case never received any proposal whereby the Managing Committee of the said school decided to initiate disciplinary proceedings or rather to late disciplinary action against the writ petitioner in the first place. As aforesaid, by the said unanimous resolution taken by the Managing Committee on 31st August, 1998 it decided not to proceed against the petitioner any further but to caution the petitioner because of the reasons mentioned in the said resolution which has been quoted hereinabove, in such a situation, how the Section 24 Committee found the alleged 'proposal' of the school authority namely Managing Committee of the said school to initiate disciplinary proceeding or to take disciplinary action against the petitioner in terms of the Sub-rule 8 of Rule 28 of the said 1969 Rules cannot be understood with any reasonable and rational approach.
36. Firstly. I fail to appreciate as to why the decision and the proposal of the school authority contained in the Laid unanimous resolution of the Managing Committee of the said school dated 31st August, 1998 was kept pending for more than two years by the Board. The Board, I do not hesitate to say, had forgotten that it was dealing with the case of a disciplinary proceeding under the provision of Sub-rule 8 of Rule 28 of the said 1969 Rules against a class-IV employee, of a school who was kept under suspension utterly illegally inspite of the order of the High Court for her reinstatement. After having received the said unanimous resolution of the said school dated 31st August, 1998 by which as aforesaid, how the Managing Committee decided only to caution the petitioner and not to continue with the said de novo proceeding any further, the said Section 24 Committee found yet another 'proposal' of the school authority to initiate disciplinary proceeding against the writ petitioner cannot be, as I said before, made out with any reasonable or rational approach in the first place. The 'subject' in the said letter of the Board or rather the letter written on behalf of the said committee dated 28th November, 2000 reads 'proposal to initiate disciplinary proceedings against the Smt. Santi Chakraborty a metron of the said school' whereas in reality there was no such proposal in the first place to initiate disciplinary proceeding or for taking disciplinary action against the writ petitioner by the Managing Committee of the said school. This, I say, is absolutely clear from the said unanimous resolution of the Managing Committee taken by it on 31 August 1998.
37. At this stage it seems to me the observation of the Appeal Court while it was dealing with the said appeal of the Managing Committee against the Order of the Hon'ble single Judge by which the first order of termination of the petitioner's employment was quashed and the petitioner was directed to be reinstated by the school authority to be very relevant. The Appeal Court said at page 3 of its Judgment in the case of 'Managing Committee Dum Dum Vidya Mandir (High) and Anr. v. Smt. Santi Chakraborty and Anr.' 'Section 24 Committee as also the Appeal Committee are tribunal and thus their decision can be tested by a person aggrieved in this Court and in that view of the matter the Orders passed by them must show proper applications of mind on their part. The said letter dated 4th December, 1991 appears to have been sent in a perform merely the blanks have been filled up. Such an attitude on the part of the statutory committee like Section 24 Committee clearly demonstrates a total non-application of mind on its part. It must be remembered that the school authorities can pass an order terminating the services of a teaching and non-teaching staff in terms of Rule 28(8) only upon obtaining prior approval of Section 24 Committee,.... Unless reasons are assigned by the appropriate committee, it would not be possible for the higher authorities including this Court to know the reasons for passing such Orders - so as to enable them to consider the correctness thereof.
38. I, however, have no doubt that when said Section 24 Committee took the alleged resolution on 28th November, 2000 by which the Managing Committee of the said school was allowed to initiate disciplinary proceeding or to take disciplinary action against the petitioner, the said committee constituted under Section 24 of the said 1969 Act had no clue as to with which case it was dealing. No reasonable man with any reasonable and rational approach would be in a position to make out as to why the said committee allowed the Managing Committee of the said school to initiate disciplinary proceeding against the petitioner when the Managing Committee itself by its said unanimous decision/resolution on 31st August, 1998 decided to be 'liberal with the petitioner and as such to caution the petitioner so that the petitioner did not commit any misconduct in-future and behaved normally with all concerned'. Thus, by the said unanimous resolution the Committee decided to put an end to the said 'de nouo proceeding' against the petitioner though the Managing Committee decided to implement its said decision in the matter after it received the final communication from the Board. But the question here is since the Managing Committee itself decided not to proceed against the petitioner any further and since there was ever no proposal to initiate disciplinary proceeding by the Managing Committee of the said school against the petitioner, how the Section 24 Committee could allow the Managing Committee to initiate disciplinary proceeding against, the petitioner or to take disciplinary action against her cannot thus, as aforesaid, be made out in the first place. At least having made repeated attempts to make out the possible reason or ground for the said alleged resolution as contained in the said letter of the Board dated 28th November. 2000 I have failed to make out any reason or ground because there is no reason or ground to support the decision of the said Section 24 Committee. The Committee no doubt acted in an extremely mechanical and casual manner and as I said before the Section 24 Committee itself had been in its slumber or perhaps in its dogmatic slumber for more than two years from the date of receipt of the unanimous resolution of the Managing Committee of the said school dated 31st August, 1998, but after about spending more than two years on the said resolution of the Managing Committee of the said school, the said Section 24 Committee somehow tried to make a face saving exercise by sending the said letter dated 28th November, 2000 to the Secretary of the said school saying only that, 'resolved that the proposal to initiate disciplinary proceedings against the Smt. Santi Chakraborty, a metron of the said school, be approved provided there is no contrary Order of the Hon'ble Court'.
39. I, on my part, have tried to the best of my ability to find out the alleged proposal of the school authority to initiate disciplinary proceedings or to take disciplinary action against the petitioner and I have found none. There cannot be any such proposal as the Managing Committee already unanimously decided not to proceed against the petitioner by said resolution dated 31st August, 1998, the so-called order of approval to initiate disciplinary proceeding by the Section 24 Committee shows and shows beyond any doubt that the remarks made by the Appeal Court in its Judgment, mentioned hereinabove, in the said earlier appeal of the Managing Committee against the functioning of the Section 24 Committee or the Board are not only true but an 'axiomatic truth'. The approach of the said Section 24 Committee at least in this matter has been such that if these state of affairs continue for long then the Board and/or the Section 24 Committee would soon lose its or their credibility in general. I do not hesitate to say that in this case at least the Board or rather the said Section 24 Committee being a delegate of the Board acted not only in utter breach of the provisions of Sub-rule 8 of Rule 28 of the said 1969 Rules but also acted contrary to the very purpose of the provisions of said rule and thereby frustrated the very spirit with which the legislature and/or the rule makers made the said provisions in the said Sub-rule 8 of Rule 28 of the Management Rules, 1969.
40. The Managing Committee in any event after taking the said resolution dated 31st August, 1998, could not, even assuming that it did, make any proposal for initiating disciplinary proceeding against the petitioner as the Managing Committee was stopped by its own unanimous resolution as taken by it on 31st August, 1998 from taking any contrary resolution or deviating from its stand taken by the said resolution or from making any proposal for initiating disciplinary proceeding or for taking disciplinary action against the petitioner on the self-same 'cause of action' as contained in its so-called chargesheet or alleged charges made by it against the petitioner on the basis of which the said 'de novo proceeding' was initiated in the first place. I am not suggesting that any such proposal might subsequently have been made by the Managing Committee nor I have been able to find any further resolution or decision whereby the Managing Committee could or can be said to have proposed to the Board or the Appeal Committee that disciplinary action should be taken against the petitioner for her removal or for her dismissal from employment on the self-same cause of action even after its said unanimous/resolution dated 31st August, 1998.
41. On a plain reading of the provisions of the said Sub-rule 8 of Rule 28 of the said 1969 Rules together with the Judgment of the Sujit Das's case (supra) it can safely be said, and this is my considered opinion as well, that in the facts and the circumstances of the entire case the Section 24 Committee and/or the Board had acted in complete breach of the provisions of the said Sub-rule 8 of Rule 28 and contrary to the unanimous resolution of the Managing Committee of the said school dated 31st August, 1998, without assigning any reason and for no reason whatsoever and without there being any ground far from any reasonable ground, in allowing the Managing Committee to take disciplinary action against the petitioner by its said letter dated 28th November, 2000.
42. Since the school authority or the Managing Committee of the said school by its said resolution decided unanimously not to proceed against the petitioner any further but to caution the petitioner the said 24 Committee could not proceed to approve the alleged 'proposal' for taking disciplinary action against the petitioner as there was no such proposal in the first place.
43. The so-called approval of the alleged proposal for initiation of the disciplinary proceeding against the petitioner is a 'product' of utter non-application of mind on the part of the Section 24 Committee and an example of absolute mechanical and casual approach on its part in dealing with the case or cases of this nature.
44. The said Committee, as aforesaid, did not also give any reason as to why it approved the so-called 'proposal' of the Managing Committee to initiate disciplinary proceeding or rather to take disciplinary action against the petitioner, though, as aforesaid, there was no such proposal in reality, as the Section 24 Committee was under an obligation to do under the provisions of the said Sub-rule 8 of Rule 28 and more particularly under the said order of the Appeal Court on the basis of which the said 'de novo' proceedings' was initiated against the petitioner after the said first order of termination against the petitioner was set aside by this Court as stated in detail hereinabove.
45. Therefore, the said 'approval' of the said Section 24 Committee was and is, in my opinion, utterly illegal and be disciplinary proceeding or disciplinary action could be initiated or taken against the petitioner persuant such utter illegal 'approval' of the said Section 24 Committee in the first place.
46. Thus, the subsequent action or actions taken by the Managing Committee of the said school in initiating the disciplinary proceeding against the petitioner on the self-same cause of action and thereafter making its proposal to the Board for dismissal of the petitioner from her employment and subsequent approval of the Board of such proposal are all bad and illegal and totally contrary to the provisions of Sub-rule 8 of Rule 28 of the said 1969 Rules. Since the order of termination, was in my opinion, brought about in utter disregard to the provisions of the said Sub-rule 8 of Rule 28 and in utter breach of the mandatory directions of the Hon'ble single Judge as well as the Hon'ble Appeal Court, the impugned order of the termination of the petitioner's employment dated 29th September; 2001 is liable to be set aside on the above ground or grounds alone.
47. Both the learned Counsel Mr. Dilip Kr. Chatterjee and Mr. Dipankar Dutta appearing on behalf of the writ petitioner and the first respondent herein, the State of West Bengal, respectively, submitted that the chargesheet which was issued a fresh against the petitioner on 29th July, 1997 could not be regarded as a valid chargesheet in the first place. The said charge-sheet was absolutely vague lacking in particulars far from material particulars, no specific allegation or allegations had been made against the petitioner in the said charge sheet and the petitioner was in fact, called upon to meet no specific charge or charges against her. A bare reading of the said charge-sheet would reveal that nobody could defend himself or herself against such vague and meaningless charges. The charge-sheet did not disclose what misconduct or misconducts were, in fact, committed by the writ petitioner and on the basis of the said charge-sheet no proceeding or disciplinary proceeding could be drawn or initiated as contemplated under the provisions of Sub-rule 8 of the Rule 28 of the said 1969 Rules.
48. On behalf of the petitioner it was categorically pointed out that though no specific charge or changes were made against her in the said charge-sheet yet the alleged charges were denied both petitioner in her reply with an assertion that since the first day of her appointment in the said school way back in the year 1971 she had never committed any misconduct or done any act against the interests of the said school or the interests of the school authority or against any teacher or non-teaching staff thereof to any extent at all.
49. No doubt, that the charges in the said charge-sheet were to say the minimum were of extreme casual nature and framed in such general terms that it is impossible for a reasonable man with any reasonable approach to make out as to what specific case was to be met by the charged employee in dealing with such alleged charge or charges as contained in the said charge-sheet. The so-called charges, as I said above, were nothing but mere repetition of the charges made against the petitioner way back in the year 1987, to be precise on 2nd November, 1987 on the basis of which the said first order of termination was made against her. On 29th July, 1997 the Managing Committee of the said school initiated the so-called 'de novo proceeding' against the petitioner by mere repeating the said 1987 charges. For the sake of convenience the 'charges' against the petitioner are set out below:
The following charges are framed against her (Smt. Santi Chakraborty):
1. That ignoring the norms and forms she has been causing nuisance in the school premises severely affecting not only the office work but also the teaching work as a whole;
2. that she has been carrying on malicious campaign against the school, the authority and the teachers causing serious damage to the honors, dignity and reputation of the school and the authority as well;
3. that her quarrelsome, arrogant behaviour and conduct cause serious breach of discipline in the school;
4. that the false, fictitious and motivated charges levelled by her against the authority are ill-conceived and engineered by her to fulfil her evil design;
5. that she by her vociferous derogatory and defamatory remarks incites the students and the guardians against the administration;
6. that she even dared to threaten the H.M, with dire consequence of physical assualt;
7. that her indecent behaviour and slang and filthy languages pollute the entire academic sphere;
8. that instead of doing her day to day duties she engaged herself in maligning the characters of the authority, members of the teaching staff and other non-teaching staff members.
9. that her irregular attendance and non-co-operation with the authority only help to create chaos and confusion causing irreparable loss to the school;
10. that her arrogant behaviour and aggressive attitude, her malicious, fictitious and motivated charges, her evil design and above all her behaviour and conduct amount to insubordination and dereliction of duty and are detrimental to the interest of the school as a whole.
50. I must admit that having read the charges I have not been able to make out any specific charge or charges against the writ petitioner which could be dealt with by her in any reasonable manner or which could be expected to be effectively dealt with by her in her defence. To say the least the charges were extremely vague and the nature of the charges was absolutely casual and mechanical. No particular instance or instances of any alleged misconduct had been mentioned in the charge-sheet, no particular or specific case was sought to be made out in the said charge-sheet, no date or time had been mentioned in the charge-sheet. The charge-sheet even lacked the minimum possible information which a delinquent should know or be made aware of to meet the charge or charges against the delinquent in a disciplinary proceeding of this nature.
51. The Supreme Court in the case of Surat Chandra v. The State of West Bengal, reported in : (1971)ILLJ293SC while dealing with a case of dismissal of a Station Officer in the Bengal Fire Service in 1943 laid down categorically as to what should minimum requirements of a charge-sheet be, the Supreme Court in dealing with the rule, namely Rule 55 of Civil Service Classification and Control of Appeal Rules, said the followings which are of immense importance in the present context. 'The rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded, he cannot possibly, by projecting his own imagination discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him.'(See page 756 of the report).
52. The above observation of the Supreme Court makes it absolutely clear as to what should the contents of a charge-sheet be, if the charge-sheet itself does not contain the clear and definite allegations upon which a charge or charges are framed against a delinquent, he would be deprieved of reasonable or adequate opportunity to defend himself or rather defend himself adequately or properly in a disciplinary proceeding.
53. In this context it is relevant to point out that the Division Bench in the said Sujit Das's case (supra) in dealing with the provisions of Sub-rule 6 of Rule 28 of the said 1969 Rules made it absolutely clear that the charge-sheet has got to be an effective charge-sheet, speaking on behalf of the Division Bench His Lordship Justice Satyabrata Sinha said the followings:
Unless an effective show cause is filed, the question of consideration thereof by the disciplinary authority at the first instance and Section 24 Committee at the second instance for the purpose of grant of approval would not arise.
54. Needless to mention, by the word show cause the Division Bench meant the chargesheet contemplated in the first part of Sub-rule 8 of Rule 28 of the said 1969 Rules. In the present case far from issuing an effective chargesheet the Managing Committee of the school, in my opinion, issued a chargesheet which only contained, as I said before, some utterly vague allegations without even the minimum particulars and/or information of any nature. I must also say at this stage that the very reading of the said chargesheet would tell a reasonable man who is supposed to adjudicate a proceeding based or founded on such chargesheet in the first place, 'look, there is or are no effective and/ or specific charge or charges against the delinquent on the basis of which a disciplinary proceeding can proceed and there is or are no effective charge or charges to adjudicate upon!'
55. If by issuing the said chargesheet dated 29th July, 1997 the Managing Committee intended to initiate the disciplinary proceeding against the petitioner a fresh on the basis of the said orders of this Court, then I must say, the Managing Committee completely misread and misappreciated the said Orders of this Court namely the Orders of the learned single Judge and the Appeal Court. The Managing Committee in holding the 'de novo proceeding' against the petitioner was not only obliged to hear the petitioner but was obliged to proceed strictly in accordance with the provisions of Sub-rule 8 of Rule 28 of the said 1969 Rules read with the relevant circular of 1982 and to follow the procedure prescribed in the said Judgment of the Division Bench in Sujit Das's case (supra). The said Division Bench decision in Sujit Das's case explained in clear terms as to how the disciplinary proceeding contemplated under Sub-rule 8 of Rule 28 of the said 1969 Rules should be proceeded with and in the present case since the Division Bench Directed the Managing Committee to hold the proceedings strictly in terms of the said Sub-rule 8 of Rule 28 read with the said Judgment in Sujit Das's case. Thus, the Managing Committee as also the Board or the Section 24 Committee were under a legal obligation as I said before, to strictly follow the procedure and the guidelines for holding such disciplinary proceeding mentioned in paragraphs 30, 31, 32, 33. 34, 35, 36 and 37 of the said Judgment in Sujit Das's case (supra)(at pages 507, 508 and 509 of the report).
56. The words used in the said Sub-rule 8 of Rule 28 are that the 'Committee shall first draw up formal proceedings and issue the chargesheet to the teacher or employee concerned and offer him reasonable facilities for defending himself.'
57. Accordingly to the Division Bench in the said Sujit Das's case this 'evidently means a proceeding initiated for the purpose of enquiring into the charges against the delinquent employee. In the said proceedings the delinquent must be offered reasonable facilities for defending himself which without any shadow of doubt, means that the principles of natural justice have to be complied with....
58. Charges when drawn up as against a delinquent are required to be proved in a proceedings after offering him reasonable facilities for defending himself.
59. In the present case admittedly no enquiry was made by anybody far from by an independent and impartial person as an enquiry officer into the alleged charges contained in the said chargesheet against the petitioner. When I say this I. however, maintain that the allegations and/or the charges contained in the said chargesheet are utterly vague and of an extremely general nature and devoid of even the basic particulars of such charges. Even, then no enquiry was ever held no witness was ever examined, none gave any evidence either for or against the delinquent.
60. Only certain charges were made in the chargesheet and the petitioner was asked to give her reply which she did, as I said before, denying all the said general allegations against her though at the same time pointing out in her said reply that no particular instance or instances of any misconduct was or were mentioned in the chargesheet, the charges were extremely vauge etc.
61. There had or has not been any attempt by the Managing Committee to prove the alleged charge or the charges against the petitioner at any point of time by any evidence of any nature whatsoever. In the said meeting held by the Managing Committee on 31st August, 1998 wherein the said unanimous resolution was passed by the said committee only to caution the petitioner, it was merely recorded by the Managing Committee, (the minutes of the meeting dated 31.1.1998 have been set out herein above), that since the petitioner merely denied the charges as made against her 'the alleged charges of dereliction of duty, in-subordination, indisciplined attitude had been established against her without any doubt'. This was the way the Managing Committee of the said school in fact tried to establish or prove the alleged guilt or misconduct of the petitioner.
62. Although a domestic tribunal or a disciplinary authority is not strictly bound by the provisions of the Evidence Act but the school authority as a prosecutor had the legal duty to prove the charge or the charges made against the petitioner in the disciplinary proceeding, but I am afraid, the Managing Committee in the instant case had miserably failed to prove any charge or the alleged charges against the petitioner in any manner whatsoever. At this stage I cannot but help to give an example of how the Managing Committee in the instant case tried to prove or establish the alleged charge or charges against the petitioner.
63. The Managing Committee alleged that the petitioner 'in ignoring the norms and forms' had been causing nuisance in the school premises severely affecting not only the office work but also teaching work as a whole and the petitioner in her turn denied such charge, I must also repetition point out at this stage even at the cost of repetition that the petitioner in fact, had given long reply to the said charges by dening all the charges against her.
64. According to the Managing Committee since the above charge was denied by the petitioner the said charge was proved as the answer given by the petitioner according to the Managing Committee -was not a satisfactory one. At this stage I ask myself if a charge is made against X by Y that 'X is guilty of theft' with nothing more and X replies. 'I deny that I have never committed any theft' and if Y finds that answer to be not satisfactory, such charge is proved, the answer to that is definitely in the negative, but according to the Managing Committee the 'charge' in that event is proved since X denies such charge.
65. The following two things emerge from the above, firstly by making such vague charge against X, as did the Managing Committee against petitioner in the present case, Y is depriving X the reasonable facilities for defending himself because X is not told specifically by Y what case he has to meet at the trial or at the proceeding and secondly, Y is holding the X guilty without proving even such charge against him. In the instant case the Managing Committee itself framed the alleged charges against the petitioner and the Managing Committee thought that those charges were to be met by the petitioner at any cost and since the Managing Committee were not satisfied with the reply to the charges by the petitioner that by itself proved the charges against the petitioner' though the Managing Committee itself made no attempt to prove such charge or charges by any means let alone by any legally acceptable means namely by any evidence of any nature whatsoever.
66. In my opinion, the finding of the Managing Committee, as recorded in the minutes of the said meeting dated 31.8.1998 that the alleged charges of 'dereliction of duties, in-subordination and indiscipline attitude' against the petitioner were proved, were the findings against petitioner without any proof of whatsoever nature and the Managing Committee made the said findings by depriving the petitioner of the 'reasonable facilities for defending herself' and in so doing, in other words, in holding the petitioner's guilty of the said alleged charges the Managing Committee acted in complete breach of the provisions of Sub-rule 8 of Rule 28 and also in breach of the procedures laid down in the Sujit Das's case which procedure the Managing Committee as well as the Board or the Section 24 Committee were in any Court bound to follow because of the specific order and direction of the Appeal Court dated 18th July, 1996 in the said appeal of the Managing Committee of said school.
67. Both the learned Counsel Mr. Dipankar Dutta and Mr. Dilip Kumar Chatterjee, appearing on behalf of the State respondents and on behalf of the petitioner respectively, were emphatic in their respective submissions in support of the case of the writ petitioner that in terminating the employment of the petitioner as the metron of the said school, the Managing Committee of the said school and the Board or the said Section 24 Committee acted utterly illegally and in complete breach of the provisions of Sub-rule 8 of Rule 28 and specially the mandatory directions contained in the said order of the Hon'ble single Judge and the Hon'ble Appeal Court respectively dated 23rd May, 1996 and 18th July, 1996 in support of their contentions that the chargesheet in question can not be regarded as a valid chargesheet as the same was absolutely vague and devoid of even the basic particulars and that the petitioner was thus deprived of his right to have the 'reasonable facilities' for effectively defending himself and that the petitioner was held guilty of the alleged charges without there being any proof by any evidence of any nature whatsoever. The following decisions in addition to the decisions already referred to in this Judgment were relied upon by Mr. Dutt.
Union of India v. H.C. Goel. : (1964)ILLJ38SC .
A.L. Kalra v. State and D. Corporation of India : (1984)IILLJ186SC .
68. Mr. Chatterjee in support of his above contention relied on the following decisions: Amulya Ratan Mukherjeev. Deputy Chief Mechanical Engineer. : (1962)IILLJ537Cal . Niranjan Prasad v. State and Ors. AIR 1962 Allahabad page 323 (paragraph 36, 37 and 40) and the Special Bench decision in Arun Kumar Hait v. The State of West Bengal and Ors. 1999(1) CHN page 521 (S.B.).
69. The view that I have already taken in this matter it is not, I think, necessary to deal with above decisions in any detail except the decision in the said Arun Kumar Hait's case, which I shall briefly refer to shortly, suffice it to say that the above decisions in fact support the submissions of both the learned Counsel Mr. Dutta on behalf of the State respondents and Mr. Chatterjee on behalf of the writ petitioner. Mr. Pradip Dutta, learned Counsel appearing on behalf of the Managing Committee, the Secretary of the Managing Committee and the teacher-in-charge of the said Dum Dum Vidya Mandir school, the 4th, 5th and 6th respondents herein, however, made elaborate submissions at the hearing in support of the impugned order of termination of employment of the writ petitioner, Mr. Dutta was equally emphatic in his submission that in terminating the employment of the petitioner the Managing Committee in fact, acted strictly in terms of the said provisions in Sub-rule 8 of Rule 28 of the said 1969 Rules by affording the petitioner personal hearing and in support of his submission he also placed a list of dated pointing out on how many occasions the petitioner was given the personal hearing.
70. Mr. Dutta also said that the Managing Committee was under no obligation to hold any enquiry into the alleged charges against the petitioner in the first place as Sub-rule 8 of Rule 28 'does not require the Managing Committee to hold any enquiry into such charges.' He also submitted that the legislature and or the rule makers did not make any provision for aided and un-aided school to make any enquiry or to appoint any person for making such enquiry while the Managing Committee of an aided or un-aided school is dealing with a case removal or dismissal of a teacher or a non-teaching staff under the provisions of Sub-rule 8 of Rule 28 of the said 1969 Rules. He submitted that only the sponsored schools coming under the provisions of West Bengal Board of Secondary Education Act, 1963, 'are obliged to hold an enquiry into the charges made against a teacher or a no teaching staff when the Managing Committee of a sponsored school, school deals with a case of removal or dismissal of a teaching or non-teaching staff under the said Sub-rule 8 of Rule 28 of the said 1969 Rules' and this, according to Mr. Dutta, is clear from the provisions of rules '(24,25 and 26 of the service Rules)'. Thus, according to Mr. Dutta. the West Bengal Board of Secondary Education Act, 1963 has made two different provisions. For two different types of schools, namely, aided and un-aided schools on one hand and the sponsored schools on the other. Lastly, he said that since the Managing Committee had acted in strict compliance of the provisions in Sub-rule 8 of Rule 28 in terminating the employment of the petitioner as the metron of the said school, the said order of termination should be treated to be valid and the writ petition ought to be dismissed.
71. I am afraid, having read the Judgment in the said Sujit Das's case more than once I have not been able to find out any such distinction as was sought to be made by Mr. Dutta that aided and unaided schools while acting under the provisions of Sub-rule 8 of Rule 28 of the said 1969 Rules are not obliged to hold any enquiry into the alleged charges against a teacher or a non-teaching staff of a school whereas it is only the sponsored schools under the said 1963 Act are so obliged. The said Sujit Das's case, in my opinion, does not make any distinction as Mr. Dutta sought to do in his submission both at the hearing and also in his written notes on submissions. It may be worthwhile to mention that the Special Bench constituted to consider the questions, only the relevant questions are mentioned herein: (i) 'Whether the Managing Committee under Rule 28 of the 1969 Management Rules has the power to appoint the Enquiry Officer and the Presenting officer for the purpose of holding enquiry either at the initial stage or at the punishment stage? ii) What is the procedure to be followed by the Managing Committee under Rule 28 of the 1969 Management Rules?') did not also make any such distinction between the aided and un-aided school on the one hand and the so-called sponsored schools on the other hand, Sub-rule 8 of Rule 28 of the Management Rules of 1969, according to the Division Bench in Sujit Das and the Special Bench in Arun Hait's case Apply to all the aided and unaided schools with equal force without where being distinction of any nature. While answering the above questions the Special Bench also laid down what procedure should be followed by a Managing Committee of an aided or unaided institution in dealing with and/or conducting a disciplinary proceeding against a teaching or a non teaching staff of such institution under the provisions of Sub-rule 8 of Rule 28 of the Management Rules 1969.
72. I am afraid, the above submission of Mr. Dutta, the learned Counsel on behalf of the Managing Committee of the said school and other respondents, is based on a mis-conception regarding the true import of the provisions of Sub-rule 8 of Rule 28 of the Management Rules and the learned Counsel also, I am afraid, did not quite appreciate the effect of the above two Judgments both in the Sujit Das's case and also in the said Arun Kr. Hait' s case (supra) in submitting that since the said Sub-rule 8 of Rule 28 'does not make any provision for holding or making any enquiry the Managing Committee or the school authority of an aided or an unaided institution is not required to make any enquiry at all into the alleged change or changes against a teacher or a non-teaching staff by appointing an independent person or otherwise. In answering the question as to whether the Managing Committee of an aided or unaided institution has the power under Sub-rule 8 of Rule 28 to appoint an Inquiry Officer and Presenting Officer for the purpose of holding the inquiry either at the initial stage or at the punishment stage, Justice Ruma Pal (as Her ladyship then was) speaking on behalf of the Special Bench, inter alia, said the followings:
It is nobody's case that the Managing Committee cannot hold an inquiry as to whether the charges or the defence are established. In fact suspension of the delinquent under Rule 28(9)(viia) read with Notification No. S/606 may be resorted to so as not to 'prejudice the proper conduct of inquiry into the charges brought.
Neither the Management Rules nor the notifications provide that the enquiry must be held by the Managing Committee. The fact that the appointment of an Inquiry Officer is statutorily provided for in some cases indicates that the procedure is statutorily recognised as a 'reasonable opportunity' for a delinquent to defend himself. The appointment of an Inquiry Officer to ascertain the truth of the allegation cannot therefore be said either beyond the competence of the Managing Committee or not within the scope of the mandate cast by Rule 28(8) on the Managing Committee.
We answer this question in the affirmative. However the power of delegation cannot be exercised arbitrarily. All these decisions contemplate that (1) the person appointed must be responsible and competent; (2) the bona fides of both the delegator and delegatee are established; (3) the delegatee must follow the principles of natural justice by giving the persons concerned an opportunity to cross examine any witnesses and to present his evidence fairly and; (4) the authority concerned must itself apply its mind to the report of the Enquiry Officer and arrive independently at a conclusion after such consideration as to the quilt or innocence of the person enquired against.' (see paragraphs 26, 27 and 31 of the Arun Hait's case (supra) at page 531 and 532, 1999(1) CHN)
73. As aforesaid, in answering the above question regarding the power of the Managing Committee to hold an enquiry by appointing independent and an impartial Enquiry Officer by the Managing Committee of a school governed under the said Sub-rule, the Special Bench did not make any distinction between the aided and unaided schools on the one hand and the sponsored schools on the other hand. The Sub-rule 8 of Rule 28 of the Management Rules 1969, therefore, applies to all the institution namely aided and unaided schools with equal force. If the contention of Mr. Dutta is to be accepted then an absurd result would follow, the teachers and non-teaching staff of the so-called sponsored institutions would in that event receive better procedural treatments than the teachers and non-teaching staff of the aided and unaided schools under the Management Rules 1969 though such schools are governed by the provisions of the said rule namely, Sub-rule 8 of Rule 28 of the said 1969 Rules which inter alia provides in clear terms that a teacher or a non-teaching staff of aided and unaided institution shall be given 'reasonable facility for defending himself.
74. It follows, therefore, since the power of the Managing Committee of a school governed under the said Sub-rule 8 of the Rule 28 to appoint an Enquiry Officer to ascertain the truth of the allegation or allegations or charges has been recognised by the Special Bench and the said power has been held to be within the scope of the mandate of the said sub rule, the Managing Committee has not only the power, but. in my opinion, has also the duty to make enquiry into the allegations and/or charges made against a teaching or non-teaching staff or a school governed by the said Management Rules of 1969, since such allegation or allegations or charge or charges are the very foundation of a disciplinary proceeding against the teacher or a non-teaching staff concerned and upon proof of which disciplinary action is eventually taken against the concerned employee in a given case.
75. I have no hesitation, in my mind, that the present is a case where the Managing Committee should have appointed an independent and impartial person for the purpose of making enquiry into the alleged charges against the petitioner and allowed the petitioner and allowed the petitioner the reasonable facility to effectively defend herself in the so-called 'de novo proceeding' against her. The concerned Managing Committee ought to have produced its witness or witnesses and/or evidence, if it had any, in support of the allegations made in the said chargesheet against the petitioner and the petitioner ought to have been allowed to cross-examin such witness or witnesses and rebut such evidence if there had been any. But the Managing Committee, as I said before, did no such things, the Managing Committee did not even frame any specific charge or charges against the petititoner in the first place. The Managing Committee simply said since the petitioner was given personal hearing and since the replies of the petitioner to the alleged charges wore not found satisfactory the allegations or the charges made in the chargesheet against the petitioner were proved.
76. The learned Counsel on behalf of the 4th, 5th and 6th respondent herein, sought to argue that since the writ petitioner was given the personal hearing, the principles justice were complied with and as such the decision of the Managing Committee to terminate the employment of the petitioner on the basis of the prior approval of the Board or the said Section 24 Committee could not be questioned. Whether the petitioner was given the personal hearing or not, is not, in my opinion, the most important factor, the most important factor in the present case is whether the petitioner was given the 'reasonable facility for defending herself in the' de novo proceeding against her and also whether the allegations made against the petitioner as contained in the said charge-sheet were at all proved or even sought to be proved through the established procedure of law as contained in Sub-rule 8 of Rule 28 of the Management Rules and as prescribed in the said Sujit Das's case (supra). The procedures prescribed in Sujit Das, it is worthwhile to mention, for holding the disciplinary proceeding under Sub-rule 8 of Rule 28 was fully recognised and approved by the Special Bench in the said Arun Hait's case (supra).
77. I have already held above that after the said resolution dated 31st August. 1998 by which the Managing Committee of the said school unanimously decided only to caution the petitioner, so that the petitioner became dutiful and serious in discharge of her duties 'in future' and since that is the only decision that was taken by the Managing Committee of the said school in the said 'de novo proceeding' held against the petitioner and since there was never any proposal by the Managing Committee to the Board for taking disciplinary action against the petitioner, the Managing Committee could not proceed on the basis of the said allegations as contained in the said chargesheet and neither the Board nor the Section 24 Committee could approve any alleged proposal for taking such disciplinary action against the petitioner as there was firstly no proposal for taking disciplinary action by the Managing Committee after such unanimous resolution as above nor the Section 24 Committee disclosed any reason and in fact, did not and in my opinion, could not disclose any reason for allowing the Managing Committee to take disciplinary action against the petitioner in the first place.
78. However, in spite of holding the above that the impugned order of termination is liable to be set aside, I have tried to examine the validity and legality of the chargesheet and the entire procedure adopted by both the Managing Committee and the Board or the Section 24 Committee as the delegatee of the Board in terminating the employment of the petitioner as a non-teaching staff of the said school and having examined the validity and legality of the said procedure adopted in conducting the disciplinary proceedings and in making and approving the said order of termination of the petitioner's employment, I am of the opinion that the petitioner in any event was deprived of the 'reasonable facility for defending herself effectively in the disciplinary proceeding firstly because the petitioner was faced with a charge-sheet which in law cannot be regarded as a valid chargesheet and secondly the Managing Committee made no effort even to prove such vague allegations and/or the charges made against the petitioner either by making an enquiry through an independent person or by any other acceptable means at any point of time, and thirdly, the said Section 24 Committee did not disclose any reason as to why it decided to allow the Managing Committee to take disciplinary action against the petitioner in the first place and ultimately approve the proposal of the Managing Committee to dismiss the writ petitioner from service. The entire proceeding against the petitioner to say the least was vitiated at least from the second stage when the said 24 Committee after sitting tight over the petitioner's case for more than two and half years resolved, 'that the proposal to initiate disciplinary proceedings against the petitioner be approved,' because the Section 24 Committee, when it took the alleged resolution or the decision did not have any clue that there was no such 'proposal for taking disciplinary action' against the petitioner by the Managing Committee in the first place. The Managing Committee, as aforesaid, by the said unanimous resolution dated 31st August, 1998 decided only to caution the petitioner and not to take any disciplinary action against the petitioner and sent the said resolution to the 'Board'.
79. Having taken the fullest advantage of the said illegal approval of the Board to initiate the 'disciplinary proceeding' or rather to take disciplinary action against the petitioner, the Managing Committee issued the second show cause notice which was, as aforesaid, nothing but the verbatim reproduction of the first chargesheet or rather the reproduction of the charges made against the petitioner way back in the year 1987 and promptly took the alleged resolution, contrary to its said unanimous resolution made earlier on 31st August, 1998, to dismiss the petitioner from her employment as metron of the said school.
80. Although the 4th, 5th and 6th respondents have used one affidavit-in-opposition which is quite voluminous and to supplement the said affidavit disclosed very man documents and/or letters in the said supplementary affidavits, the Managing Committee of the said school did not and/or has not disclosed its alleged letter dated 24th July, 2000 as referred to in the letter of the Secretary of the West Bengal Board of Secondary Education dated 28.11.2000. Why the said letter has not been disclosed is not known. I have said before that the Board sat tight over the said unanimous resolution of the Managing Committee of the school dated 31st August, 1998, by which the Managing Committee decided to caution the petitioner and not to proceed against the petitioner any further, for more than two and half years before finally approving the alleged Proposal of the Managing Committee for 'initiating disciplinary proceedings against the petitioner'.
81. At this stage, I have no hesitation to say once again that both the Managing Committee and the Board and/or the said Section 24 Committee were simply abusing their powers vested in them under Sub-rule 8 of Rule 28 of the said 1969 Rules in conducting and proceedings against the writ petitioner.
82. In sub paragraph of the supplementary affidavit one Santosh Kr. Panja, claimed to be a teacher-in-charge of the said school affirmed on 1st day of August of 2003, stated that the said letter of the Board dated 28th November. 2000 was issued 'approving the proposal of the Managing Committee to initiate disciplinary proceedings against the writ petitioner'. I wonder as to how the teacher-in-charge of the said school could make such a statement on oath when no such proposal was ever made by the Managing Committee to the Board for Board's approval to initiate 'disciplinary proceeding' against the petitioner, the teacher-in-charge has affirmed the said statement in the supplementary affidavit as true to his knowledge.
83. The Managing Committee. I reckon, in an attempt to save its skin or at the least to save its face mentioned a few dates of some alleged letters and/or documents in its said second showcause notice without furnishing any particulars thereof, without furnishing any copy of such documents to the petitioner, without offering the petitioner any inspection thereof at any time, but such attempt on the part of the Managing Committee of the said school as evident from the text of the said second showcause dated 20th December. 2000 has been and is utterly illegal and arbitrary and I would hasten to add dishonest as well.
84. I do not need to deal with the second showcause notice in any detail or at all as I have held above that the said disciplinary proceeding was vitiated at least from the second stage because of the said unanimous resolution of the Managing Committee dated 31st August, 1998, after such resolution the Section 24 Committee ought not have in any event empowered and/or allowed the Managing Committee to take disciplinary action against the petitioner in the first place. Firstly, the Managing Committee did not make any proposal for approval for taking disciplinary action or rather for approval for proceeding against the petitioner any further, secondly, their were no materials before the Board or the said Section 24 Committee on the basis of which the said approval could be made and thirdly and very importantly the said Committee did not or rather. I think, could not give any reason in support of its so-called 'approval' when there was only one unanimous resolution in existence, namely the said resolution of the Managing Committee dated 31st August, 1998.
85. The utter mechanical way of dealing with the petitioner's case by the Board or the Section 24 Committee is apprent and/or evident from the communication of the Deputy Secretary Administration of the West Bengal Board of Secondary Education dated 9th August, 2001 by which the said Section 24 Committee allegedly resolved that the proposal to dismiss the writ petitioner as metron of the said school was approved, if read 'provided there was no contrary order from the Hon'ble Court'. The usual lines contained almost in all the communications made by the Board or the said Section 24 Committee.
86. Lastly, but not the least after having examined the entire facts and circumstances of the case and the documents and materials disclosed in the proceedings, including in the supplementary affidavits of the writ petitioner and the affidavit-in-opposition and the supplementary affidavits of the Managing Committee, or used on behalf of the school authority. I have no hesitation in my mind to observe that the Managing Committee did not have any case or any specific case on the basis of which it could proceed against the petitioner, if the Managing Committee had such a case or a specific charge or charges against the petitioner, the Managing Committee would have been able to spell it them instead of repeating the some utterly vague and absolutely general and casual allegations of so-called misconduct against the petitioner since the year 1987 and that is why. I think, the Managing Committee or the members thereof thought it fit to take the resolution, which was a unanimous one, as it did in its meeting dated 31st August. 1998 to save its face whereby it decided to caution the petitioner for her alleged misconducts as alleged in the chargesheet in question.
87. The assistance rendered by the learned Counsel appearing on behalf of the State respondents at the hearing and the written notes of submissions in support of such assistance, in the words of the learned Counsel 'made and prepared for the sake of justice' to the petitioner's case, is much appreciated.
88. In the facts and the circumstances of the present case and having examined the history of the litigation since 1987 till the proceedings against the petitioner culminated in the order namely the said impugned order of termination dated 29th September, 2001, I have no doubt in my mind, that the termination of employment of the petitioner as metron of the said school was brought about by the Managing Committee of the said school and the said Section 24 Committee of the West Bengal Board of Secondary Education utterly illegally, in utter arbitrary use of their powers, in excess of their respective jurisdictions by acting in fundamental breach of the provisions of the said Sub-rule 8 of Rule 28 and the said mandatory directions contained in the said two orders namely dated 23rd May, 1996 of the learned single Judge and dated 18th July, 1996 of the Appeal Court.
89. The said order of termination dated 29th September, 2001 is liable to be and is thus set aside. As a natural consequence of setting aside of the said order of termination the petitioner is and will be entitled to join the said school namely Dum Dum Vidya Mandir (High School) forthwith as a metron thereof and discharge her duties as such as before without any interference or interruption from anybody including the Managing Committee of the said school or any member thereof.
90. The school authority and/or the Managing Committee of the said school are thus directed to allow the petitioner to join the school forthwith as metron thereof as before. The writ petitioner will be entitled to receive her salary in arrears and other financial benefits if any, from the date of her first order of suspension, being the only order of suspension, since the school authority was directed to reinstate the petitioner by the final order of this Court dated 23rd May, 1996 in the writ petitioner's by the order of the Appeal Court dated 18th July, 1996. The petitioner will be entitled to receive her salary in arrears from the date of her suspension (being the only date of suspension) dated 2nd September, 1987 as the said order of suspension naturally perished by virtue of the said order of reinstatement dated 23rd May, 1996 by which the said first order of termination of employment of the petitioner was set aside.
91. The Managing Committee of the said school is also permanently restrained from initiating and/or drawing any further proceeding against the petitioner either for her termination or her removal from employment of service on the basis of the self-same cause of action and/or charges being the subject matter of these writ proceedings and/ or as contained in the impugned chargesheet dated 29th July. 1997/2nd November. 1987 in future.
92. Needless to mention that the amounts that have been received by the petitioner as her subsistence allowance since 2nd September, 1987 shall be deducted from salary of the petitioner in arrears till the petitioner's joining the said school in terms of this order. The petitioner shall also be entitled to other financial benefits if any, in the above manner.
92. The concerned authority is directed to make the above payments in arrears to the petitioner within a reasonable time and in any event within a period of six weeks from the date of communication of this Order.
94. The above directions are to be treated to be mandatory by all the concerned respondents herein.
95. The writ petition is thus disposed of in terms of the Judgment and the directions contained herein.
There will be no order for costs.
Urgent xerox certified copy of this Judgment, if applied for, be given expeditiously.