Pratap Kumar Ray, J.
1. Heard the learned Advocates appearing for the parties.
2. This appeal has been preferred assailing the judgment and order dated 18th May, 2006 passed by the learned trial Judge in W.P. No. 20603 (W) of 2005, whereby and whereunder the learned trial Judge did not interfere with the matter, namely, deemed resignation from service as assailed in the writ application by the petitioner on the ground of alternative forum to agitate the grievance before the Appeal Committee, that is, the statutory appeal under the statute.
3. Since the respondents, School Authority got no opportunity to file opposition of the said application, a direction was given to file, opposition to bring on record the material facts. The affidavit-in-opposition as filed be kept with the record.
4. It is an admitted fact as it appears from the affidavit-in-opposition and the writ application that the writ petitioner/appellant, who was working as a Group-D staff in the Science Laboratory, due to his illness since the year, 1995 could not join the school, filed an application seeking medical leave. From the different correspondences it appears that as the petitioner despite several communications made by the Headmaster of the school requesting him to join, the copies of which are annexed in the affidavit-in-opposition as well as in the Paper Book, the writ petitioner did not join.
5. Having regard to such, ultimately a final letter was issued directing the writ petitioner to join in service and a Paper Advertisement also was made in the Daily Newspaper 'Pratidin' on its publication dated 18th May, 2002, which reads such:
Chandendra Kumar Debnath Vill. P.O. Barashi, P.S. Mathurapur, Dist. 24 Parganas (S). You are hereby informed that you are absent from duties for more than 7 years without permission of the authority concerned. You are instructed to join your duties within 7 days after receipt of this notice, failing which necessary action will be taken as per rule....
6. It is the case of the appellant that he wanted to join on being informed accordingly in terms of the news publication but he was not allowed to join for which a diary was lodged to a police station but not at the local police station on 19th December, 2002. In the writ application the letter of Headmaster whereby the decision of the Managing Committee of the school and the West Bengal Board of Secondary Education (hereinafter referred to as 'the said Board' for brevity) dismissing the petitioner's service as was communicated, was challenged. From the affidavit-in-opposition of the stay application filed before us it appears that it was not a case of dismissal but a case of deemed resignation by legal fiction of law in terms of Rule 11(i) of the Leaves Rules for grant of leave to the teaching and non-teaching staff of recognised Non-Government Secondary School. Rule 11(i) speaks such:
11. (i) No permanent teaching or non-teaching employee shall be granted leave of any kind for a continuous period exceeding 5 years. Where such an employee does not resume his or her duty after remaining on leave for a continuous period of 5 years or where such an employee after the expiry of his or her leave remains absent from duty, otherwise on ground of suspension for any period, which together with the period granted to him or her exceeds 5 years, he or she shall, unless the Board on reference from the school authorities and in view of exceptional circumstances of the case, otherwise determines, be deemed to have resigned and shall accordingly cease to be in the employment of the school.
7. The school authority in view of prolonged absence of the writ petitioner after seeking the medical leave in the year, 1995, accordingly applied the said provision and referred the matter to the said Board to ascertain as to whether there would be any other exceptional views by the Board itself to avoid rigorous deemed resignation clause due to such absence. By the letter dated 28th November, 2003 the said Board conveyed their mind by holding that the concerned non-teaching staff of the school should be deemed to have resigned and also ceased to be in the employment of the school. The said letter of the Board reads such:
From:West Bengal Board of Secondary Education77/2, Park StreetKolkata- 16ToThe SecretaryBehala Aryya Vidyamandir,Unique Park, BehalaKolkata-34.Sub: Continuous unauthorised absence of Sri Chandendra Kumar Debnath, Group-'D'staff of the school.Ref: Schools' letter No. Nil, dt. 28.11.03.Sir,In reference to above, the undersigned is directed to inform you that in terms of prov. 11 of Leave Rules Sri Chandendra Kumar Debnath, Group 'D' staff of the school be deemed to have resigned and shall accordingly cease to be in the employment of the school. Yours faithfully,Asstt. Secy(G)....
8. In pursuance thereof, the Headmaster informed the writ petitioner that he was dismissed from service. Such communication was wrong communication as there was no scope of using the word 'dismissed' from service in view of the fact that Rule 11(i) of the Leaves Rules was applied to decide the matter on unauthorised absence on enjoying medical leave initially in the year 1995. But for that reason the factual status of the writ petitioner that he resigned from service under the deeming clause would not suffer any material change. Initially, we thought to confirm the order passed by the learned trial Judge against which an appeal has been filed, as the learned trial Judge rejected the writ application on the ground of alternative appeal forum by holding that the writ application was not maintainable. But the learned Advocate for the appellant insisted for final consideration of the matter by this Court by submitting that there was a breach of statutory provision, namely, breach of Rule 28(8) of the Management Rules, 1969, as no departmental proceeding was finalised for dismissal order though a show-cause notice was issued in that respect. Rule 28(8) of the Rules of Management of Recognised Non-Government Institutions (Aided And Unaided) Rules, 1969 which has been referred to as management rules is a provision whereby departmental proceeding could be initiated to remove or dismiss a permanent or temporary staff of the school. Rule 28(8) reads such:
28. (8) Both in aided and unaided Institutions the Committee shall have the power, subject to the prior approval of the Board, to remove or dismiss permanent or temporary teachers and other employees. For this purpose the Committee shall first draw up formal proceedings and issue charge-sheet to the teacher or the employee concerned and offer him reasonable facility for defending himself. The teacher or the employee proposed to be proceeded against shall submit his explanation, ordinarily, within a fortnight of the receipt of the charge-sheet. The Committee shall send to the Board all relevant papers including the charge-sheet, explanations submitted by the teacher or the employee concerned and the reasons for which the Committee decides in favour of taking disciplinary action. If the Board considers that there are sufficient grounds for taking disciplinary action the Committee shall issue formal notice calling upon the teacher or the employee concerned to show cause, ordinarily within a fortnight why he should not be dismissed or removed from service. The Committee shall, then, send again to the Board all relevant papers including the explanation submitted by the teacher or the employee concerned and the recommendation's of the Committee for the action proposed to be taken. So far as the Committee is concerned, the decision of the Board shall be final:Provided that the Board may delegate to any Committee constituted under Section 24 of the Act the powers and functions conferred on the Board by this sub-rule.
9. Accordingly, it has been submitted by the learned Advocate for the appellant that the order of dismissal as communicated by the Headmaster was on total breach of Rule 28(8) as no dismissal order was passed following the departmental proceeding. It is the contention that the authority initiated a departmental proceeding by issuing a charge-sheet but they have not followed procedures for completion of the departmental proceeding which requires a follow up action of two stages, namely, first stage asking to show-cause as to why the departmental proceeding should not be initiated which upon considering the reply thereof requires a decision of the Managing Committee to hold a departmental proceeding on the specific charges seeking approval of the Board and thereafter starting point of second stage on having approval for such departmental proceeding on the charges as were referred to the Board, the departmental proceeding would proceed providing opportunity of hearing to the delinquent, namely, allowing him to produce his witnesses, to cross-examine the witnesses of the Managing Committee in support of the charge and thereafter a decision would be taken by the Managing Committee to dismiss on approval of the said Board, which thereafter ultimately will make the finality of the departmental proceeding and a dismissal order could be passed. The different stages of the departmental proceedings are provided by a circular letter of the Board issued under Memo No. S/607 dated, Calcutta, the 21st June, 1982, which reads such:
No. S/607 Dated, Calcutta, the 21st June, 1982ToThe Management of All Recognised Non-Govt. Secondary Institutions in the State.Sub: Proposal for obtaining approval in respect of disciplinary proceedings against any member of the teaching/non-teaching staff of secondary schools under Rules 28(8) and (8a) of the Management of Recognised Non-Govt. Institutions (Aided and Unaided) Rules, 1969, as amended.
The Management of recognised secondary schools is hereby informed that in the matter of submission of proposal seeking Board's approval for the initiation of disciplinary proceedings in respect of any member of the teaching/non-teaching staff of a school under Rule 28(8) and (8a) of the Management Rules, the formalities as set below shall be observed.
1. The school management shall initiate disciplinary proceedings against any member of the teaching/non-teaching staff of the school in two stages as noted hereunder:
(a) First stage:
The procedure of the 'first stage' shall comprise the following ad seriatim:
(i) Resolution of the Managing Committee containing the charges against the person to be proceeded against;
(ii) Formal charge-sheet to be issued to the person concerned, containing the articles of charges as per resolution of the Managing Committee;
(iii) Reply to the charge-sheet by the person proceeded against to be submitted to the Managing Committee ordinarily within a fortnight from the date of receipt of the charge-sheet;
(iv) Consideration of the reply by the Managing Committee and its decision thereon, with the underlying reasons for taking such decision to be stated in detail.
The school management shall, thereafter send to the Board their proposal along with attested copies of all relevant papers coming within the scope of the 'First Stage' above.
If the Board considers there are sufficient grounds for taking disciplinary action against the person concerned on the basis of papers submitted by the school and also papers that may be subsequently called for, if necessary, the Board will accord first approval to the school's proposal for initiating disciplinary proceeding against him/her.
In all cases, the Board will acknowledge the school's letters on the subject at the earliest opportunity.
If no communication from the Board be received within one month of submission of the proposal regarding the punishment to be meted out to the teacher/non-teaching employee, the school concerned will meet the Secretary of the Board along with all relevant papers with a prayer for expeditious disposal of the case.
(b) Second stage
The procedure of the second stage, if necessary, shall comprise the following ad seriatim:
(i) on receipt of the Board's aforesaid approval, the Managing Committee shall issue a show-cause notice, on the basis of their resolution, to the person concerned ordinarily within a fortnight, specifying the nature of the punishment proposed to be awarded to him/her, as provided under Rule 28(8) or 8 (8a);
(ii) On receipt of the person's reply to the show-cause notice, the Managing Committee shall consider the reply in its meeting and take a decision thereon in the form of a resolution;
(iii) The school management shall thereafter forward all relevant papers as mentioned in (i) and (ii) above, to the Board for consideration ordinarily within one month of the reply in the show-cause notice, as indicated under (b)(ii).
The Board will then consider the case in all its aspects, decide it finally and communicate its decision to the school authority for implementation. The decision of Board on the matter is final and binding upon all concerned.
2. The school management shall not remove any person from service or award any punishment without the prior approval of the Board and without following the procedure indicated under the Rule 28(8) of the Management Rules a elaborated in item 1 above.
3. All communications relating to the aforesaid matter shall be sent to the Secretary of the Board by name, with the superscription 'Disciplinary Proceedings' written legibly on the envelope.
4. In all cases, the Board will acknowledge the school's letters on the subject at the earliest opportunity.
5. If no information from the Board be received within one month of submission of the proposal regarding the punishment to be meted out to the teacher/non-teaching employee, the school concerned will meet the Secretary of the Board along with all relevant paper with a prayer for expeditious deposal of the case. Sd/- N. SinhaSecretary.
10. The learned Advocate for the Appellant accordingly prayed for disposal of the writ application on merit. The writ application accordingly is being considered by us on merit. The submission of the learned Advocate appellant that once the departmental proceeding was initiated by issuing a charge-sheet which has been annexed at page 77 of the Paper Book as was issued on 26th June, 2002 being a second charge-sheet following the first one dated 27th March, 1997, the copy of which has been produced before us, without completing all process/stages of departmental proceeding, the order is bad in law. The letter which has been considered by the learned Advocate for the appellant as a charge-sheet being letter dated 27th June, 2007 annexed at page 77 of the Paper Book and the letter dated 27th March, 1997 as produced before us are set out hereinbelow respectively:
Date 26.6.2000ToSri Chandendra Kumar DebnathVillage & P.O., Barashi P.S. Mathurapur Dist. 24 Pargana.s (S)Sub: Charge Sheet.Dear Sir,As per record you are absent from you duties at school for more than seven years and your prolonged and objectionable absence from your service has led the school authority to innumerable problems in running the school smoothly, of course, you were informed several times verbally or in writing to join your duties at school, but you turned as deaf ear to the instruction of the school authority. However, it is clear to us from your non-attendance to normal duties that you are reluctant to serve the school. Now please explain why legal measures as per rule should not be taken against you on the charge of your long absenteeism for more than seven years.
If your satisfactory explanation for being absent from school for more than seven years is not received by the undersigned it will be assumed that you have nothing to say In favour your non-attendance to duties at school or your are not willing to serve the school for so many reasons unknown to us. Your reply is expected by 15 days after receiving this letter.
Thanking you,Yours faithfully.Sd-27.6.2002Date 27.3.1997ToSri Chandendra Kumar Debnath Vill. & P.O. Barashi P.S. Mathurapur Dist. 24 Parganas (S)West BengalSub: Issue of a Charge-sheet Dear Sir,I am hereby directed by the dignified members of the Managing Committee to issue a charge-sheet to you on the ground that you have been absenting yourself from the normal duties entrusted to you at school for an indefinite period of time without any intimation to the undersigned. Your prolonged absenteeism from the school without prior permission of the competent authority has caused a bottle-neck to the smooth running of the school. Notwithstanding the several letters of identical nature being dispatched to you repeatedly to resume your usual duties, you did neither turn up not did even care to send any written intimation to the authority so as to explain the reason of your absence for a pretty long time.
In consideration of the above state of affairs, I have no other alternative but to ask you why legal measures should not be taken against you on the charge of habitual absenteeism for a considerable length of time.
Looking forward to an expeditious reply to the letter accompanying the charges framed against you within a fortnight.With thanks,Yours faithfully,Sd/-27.3.97
11. As per the procedure for completion of the departmental proceeding it appears that mere issuance of the letter by the school authority requesting the teaching/non-teaching staff as to why disciplinary proceeding shall not be initiated, does not mean that the departmental proceeding was initiated. Under the procedure for completion of departmental proceeding in terms of the circular letter dated 21st June, 1982 as quoted above, it appears that at the first stage the proposal for initiating departmental proceeding against any teaching and non-teaching staff requires an approval of the Board and unless the same is approved, there is no question of initiation of departmental proceeding. Furthermore, from the tenor of the letter it appears that though the word 'charge sheet' has been mentioned under the word 'subject' but the same was merely a show-cause letter seeking explanation, failing which initiation of proceeding as per law would be started. Now, we have to consider what is the starting point of initiation of a departmental proceeding which will throw a light on the point as urged. The Apex Court has considered this point, namely, what is the starting point of initiation of a departmental proceeding in the case Coal India Limited v. Saraj Kumar Mishra reported in (2007) 9 SCC 625. It has been decided relying upon the earlier views of the Apex Court passed in the case UCO Bank and Anr. v. Rajendra Lal Kapur reported in : AIR2007SC2129 . It has been decided by the Apex Court to this effect - 'departmental proceeding is initiated when a charge-sheet is issued. Date of application of mind on the allegation levelled against an officer by the competent authority as a result whereof a charge sheet was issued would be the date on which the departmental proceedings are said to have been initiated and not prior thereto. Pendency of a preliminary enquiry: therefore by itself cannot satisfy such initiation of a departmental proceeding to invoke Clause (20) of the Rules and Regulations of the UCO Bank Officers' Employees' Service Regulations, 1979 to apply the legal fiction that a superannuated employee to be deemed in service to complete the departmental proceeding when said proceeding was initiated prior to his retirement'.
12. Having regard to that legal position, it appears that initiation of a departmental proceeding requires consideration of the materials, namely, the show-cause notice by the authority and the reply thereof by the employee concerned on issue of any allegation for the purpose of initiation of a departmental proceeding by framing a charge thereof. Until such decision is reached by the disciplinary authority which requires adjudication in a departmental proceeding in the manner aforesaid, the letter asking to show cause on issue of an allegation cannot be said as an initiation of departmental proceeding. Furthermore, in the instant case, statute explicitly has provided that the first stage is nothing but a stage to accord approval of the proposal of departmental proceeding as to be referred to by the Managing Committee by using the language as it appears from the circular letter, namely, 'if the Board considers that there are sufficient ground for taking disciplinary action against the persons concerned on the basis of the papers submitted by the school and also papers that may be subsequently called for, if necessary, the Board will accord first approval to the school's proposal for initiating departmental proceeding against him/her'. Hence, from the statutory provision it appears that letters as have been considered by the learned Advocate for the appellant as quoted above as the issuance of a charge-sheet in the departmental proceeding, is not legally ucceptable as under the provision those were the letters issued while the issue was in first stage condition, namely, in the proposal condition before the Managing Committee asking the writ petitioner/appellant to submit an explanation so that appropriate proposal for departmental proceeding could be referred to the Board for their necessary approval to proceed with the departmental proceeding.
13. In that view of the matter, we are of the view that, there was no departmental proceeding initiated at all. Since there was no departmental proceeding initiated at all, there is no question of any breach of Rule 28(8) as has been urged by the learned Advocate for the appellant. The writ petitioner/appellant has misread the letter issued by the Headmaster impugned in the writ application to contend that it was a case of dismissal from service. As already discussed that the letter of the Headmaster dated 2nd March, 2005 was nothing but a communication made by the Headmaster, intimating the decision of the Managing Committee and the decision of the Board. The letter of the Headmaster reads such:
Date 2.3.2005ToSri Chandendra Kumar Debnath,Group 'D' Staff,Village &; P.O. BarashiP.S. MathurapurDist. 24-Parganas (South)Subject: Dismissal from serviceDear Sir,As per decision of the Managing Committee and approval of the West Bengal Board of Secondary Education, vide memo No. 24 (S) 3127/04/G dt. 26.8.04, you are hereby informed that you have been dismissed from your service as Group 'D' Staff on the ground of continuous unauthorised absence from your duties at school for more that 9 (Nine) years. Thanking you, Yours faithfully,Sd/- Headmaster.
13. On a bare reading of the said letter, we are of the view that the Headmaster only communicated the decision of the Board whereby by legal fiction applying Rule 11(i) of the Leaves Rules there was a situation of deemed resignation from service by the writ petitioner and he ceased to be in the employment of the school. From the different correspondences as annexed in the writ application it appears that the petitioner applied seeking leave on medical ground and the school authority allowed him such for the period, as permissible by law. Notice was published in the daily newspaper requesting him to Join. But the writ petitioner since did not agree to such, the conditions of application of the Rule 11(i) in the instant case whereby after seeking the medical leave, the petitioner remained absent, were fulfilled. Hence, we are not interfering with that decision. There is no doubt that the petitioner's health condition was not well and the writ petitioner/appellant absented himself on such ground since 1995 and for the last 12 years the school as well as the students are suffering without any Group 'D' staff to perform' duties as laboratory staff.
14. Considering all the issues and having regard to the special fact of this case, we are of the view that the decision of the Managing Committee of the school and the said Board in terms of Rule 11(i) of the Leaves Rules aforesaid was not at all unjustified decision.
15. The writ application accordingly stands dismissed by modifying the impugned Judgment under appeal.
16. The appeal also stands dismissed.
Prasenjit Mandal, J.
17. I agree.