Dr. Sunil Kumar Khan Vs. State of West Bengal and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/876328
SubjectConstitution
CourtKolkata High Court
Decided OnMay-13-2004
Case NumberW.P. No. 127(E) of 2004
JudgeBhaskar Bhattacharyya, J.
Reported in(2004)3CALLT87(HC),2005(1)CHN465
ActsConstitution of India - Articles 14, 16, 21 and 226; ; West Bengal College Teachers' (Security and Service) Act, 1975 - Section 5(2)
AppellantDr. Sunil Kumar Khan
RespondentState of West Bengal and ors.
Appellant AdvocateSadananda Ganguly, ; Gopal Chandra Ghosh and ;Arindam Jana, Advs.;Debasish Kargupta, Adv.
Respondent AdvocateBikash Ranjan Bhattacharya and ; S. Banerjee, Advs. for the Respondent Nos. 7 to 14, 17 and 18 and ;Om Narayan Rai, Adv.
Cases ReferredV.P. Ahuja v. State of Punjab and Ors.
Excerpt:
- bhaskar bhattacharyya, j.1. by this writ application, the petitioner, a principal of the respondent college, has prayed for cancellation of the resolution of the governing body of the college dated may 6, 2003 by which the probationary period of the petitioner has not been further extended and he has been discharged from the post of principal with effect from may 6, 2003.2. although the petitioner has further prayed for declaration that the provision of sub-section 2 of section 5 of the west bengal college teachers' (security of service) act, 1975, is ultra vires the constitution of india, such prayer was, however, not pressed at the time of hearing.3. the following facts are not in dispute:on july 17, 1986 being recommended by the west bengal college service commission, the petitioner joined one sree gopal banerjee college, district-hooghly, affiliated to burdwan university as a lecturer in botany and worked there till 6th may, 2002. thereafter, the petitioner with effect from may 7, 2002 joined as the principal of kanchrapara college under university of kalyani after being recommended by the west bengal college service commission. 4. after receipt of the said letter of appointment, the petitioner reported for duty on 7th may, 2002 (forenoon). the said kanchrapara college is a college affiliated to the university of kalyani and the same is a government sponsored college and run solely on the basis of government grants.5. it appears from record that on the expiry of one year service of the petitioner, a meeting of the governing body of the said college was held on 6th may, 2003 at 4.00 p.m. in the principal's chamber and item no. 7 of the agenda was to consider the confirmation of the petitioner as principal of the college on completion of his one year service in the college.6. on that day, governing body of the college took a resolution that on evaluation of one year service of the petitioner with effect from 7th may, 2002 as probationary principal, it was found that the same was unsatisfactory and, as such, the governing body resolved not to extend the service of the petitioner and, thus, discharged him from the post of the principal with immediate effect.7. being dissatisfied, the petitioner has come up before this court.8. mr. ganguly, the learned counsel appearing on behalf of the petitioner, has challenged the aforesaid resolution on the ground that from the resolution itself, it would appear that various allegations have been recorded against the petitioner for which no opportunity of being heard was given to the petitioner. according to him, the order passed on the basis of such resolution is vitiated on the ground of attaching stigma. he, thus, prays for setting aside the order of termination.9. in support of such allegations, mr. ganguly has relied upon the following decisions of the supreme court:1. dipti prakash banerjee v. satyendra nath bose national centre for basic sciences, calcutta and ors. reported in : [1999]1scr532 .2. radhey shyam gupta v. uttar pradesh state agro industries corporation ltd. and anr., : (1999)illj432sc 3. v.p. ahuja v. state of punjab and ors., : (2000)illj1099sc .10. apart from the aforesaid point, mr. ganguly further contended that it would appear from the qualification of the president of the governing body of the college that he had the educational qualification of just being matriculated and he was an m.l.a. of a ruling political party. according to mr. ganguly in the kalyani university act, there is specific qualification prescribed for the president of the governing body of the college. the said president not having the requisite qualification, according to mr. ganguly, the resolution taken by the governing body should be set aside.11. this application is opposed by both the college concerned and the university of kalyani and affidavit-in-opposition has been filed by the college authority.12. mr. bhattacharya, the learned senior counsel appearing on behalf of the college authority, has disputed the aforesaid contention of mr. ganguly and has contended that the petitioner being a probationer, there was no necessity of giving any opportunity of hearing before taking resolution of discharging him from the service. according to mr. bhattacharya, the findings recorded by the governing body of the college merely records unsatisfactory service of the petitioner and as such, no stigma against the petitioner is attached in the said order. in this connection, mr. bhattacharya relies upon the decision radhey shyam gupta (supra) cited by mr. ganguly and submits that the facts appearing from the resolution are merely the foundation of termination order and not the motive.13. as regards the other allegation that the president of the governing body had no requisite qualification, mr. bhattacharya contends that even if he had no such requisite qualification, for that reason the decision of the governing body cannot be vitiated. he thus prays for dismissal of the writ application.14. mr. kargupta, the learned advocate appearing on behalf of the university, has supported the contention of mr. bhattacharya and prays for dismissal of the writ application.15. therefore, the first question that arises for determination in this writ application is whether the resolution of the governing body of the college attaches any stigma against the petitioner so as to vitiate the order of discharge.16. in order to appreciate the aforesaid contention, it is necessary to refer to the actual resolutions taken by the governing body of the college on item no. vii of the agenda which are quoted below:'item no. vii of the agenda: to consider the confirmation of service of dr. sunil kumar khan as principal of this college on completion of his one year service in this college. 17. dr. sunil kumar khan, the probationer principal of kanchrapara college voluntarily left the meeting with the consent of the chairman saying that he should not stay inside during discussions on the issue of his confirmation in the course of his one-year service to the college.18. the observations placed on record of the hon'ble members of the governing body during discussions on the issue of confirmation of dr. s.k. khan were as follows:1. dr. khan miserably failed to take initiative till date in the matter of arranging a room allotted for b.sc. computer (gen. & hons.) course proposed to be introduced from the next academic session i.e. 2003-2004 though rs. 50,000/- were provisionally sanctioned by the 4th g.b. of the college in its meeting dated 04.02.03.2. classes and the examination process have been badly hampered for his whimsical attitude and attendant failure in regard to placing orders for 100 benches though quotations were collected for the purpose in accordance with a g.b. resolution approving the purchase of 100 benches in its meeting dated 16.11.02 and sanctioning fund for the purpose.3. dr. khan abstained from a very important meeting of the service book sub-committee dated 07.10.2002 being himself the convenor of the meeting and it badly reflects his lack of accountability towards the college and its employees.4. it was reported that dr. khan carried without knowledge and consent of the appropriate college authority a lot of important files including g.b. minutes books and files for reasons not known to anybody and nobody knows whether the files and other important documents and papers were safely returned to the college.5. it is quite unbecoming for dr. khan, m.sc. ph.d in botany that he did not take a single class in his subject basically being a teacher and the principal of the college during his one-year tenure as the principal on probation.6. whereas in b.a. history honours introduced from the academic session 2002-2003 on self-financing basis, a full-time teacher is required to take 21 classes a week, the existing class-routine offers him only 7 classes a week to take. despite repeated requests and urge from concerned teachers of the history department and teachers belonging to other departments for framing a full-fledged scientific routine in accordance with a circular from the west bengal council of higher education, he could not surprisingly take any positive step in this regard till date. over and above, most surprisingly, the sum of rs. 25,000/- sanctioned by the g.b. in its meeting dated 16.11.02 for purchase of books in history hons. has not been released till date leading to growing resentment among concerned teachers.7. though the intake capacity in regard to admission of students in b.a./b.sc./b.com. general and honours streams has been fixed by the university, dr. khan has to be squarely blamed for admission of students during the academic session 2002-2003 far beyond intake capacity in different hons. subjects and general courses at the undergraduate level and specially for gross anomaly in admission in b.sc. zoology hons. course through admission of two students in zoology hons. with lower marks superseding those with higher marks leading to unprecedented students' agitation and boycott of classes by the students followed by a near halt of the academic progress of the institution.8. it is a matter of shame for the institution and a gross violation of the g.b. norms when dr. khan, the probationer principal of kanchrapara college did neither report to the g.b. nor got the fact approved by the g.b. in its meeting that he had admitted students far beyond the intake capacity fixed by the university of kalyani. incidentally, all this was done in blatant violation of the decision taken in the g.b. meeting dated 24.09.02 and subsequently confirmed in another g.b. meeting dated 27.11.02. all this amply proves that he was tended to tamper with g.b. resolutions. resolutions adopted in g.b. meetings were found to differ with those taken up for confirmation in the immediately next g.b. meetings.9. post-graduate teaching in hindi suffered a lot and the concerned students badly missed classes in p.g. hindi course introduced from the academic session 2002-2003 followed by a large portion of the syllabus remaining unfinished, as dr. khan practically did nothing in six-month period to arrange recruitment of guest-lecturers in hindi.10. during the tenure of prof. j.n. chakraborty as the teacher-in-charge of the college with effect from 01.02.02 to 06.05.02, it was decided that the college would introduce n.s.s. and a letter was sent to the effect to programme co-ordinator, kalyani university. suggestion of appointing sri subhabrata de, lecturer in commerce, kanchrapara college as the programme officer for the college n.s.s. unit was approved by the university and a sum of rs. 20,000/- (twenty thousand only) was sent by the programme co-ordinator with instructions towards execution of specific programmes to be completed immediately. furthermore, it was resolved in the g.b. meeting dated 04.02.02 that a separate account be opened for n.s.s. unit of the college. neither this decision has been translated into action nor sri subhabrata de has been issued an official letter of appointment by dr. khan till date. as a result the n.s.s. scheme introduced in the college is on the verge of being frustrated after the university issued a letter asking for utilisation of the money and reports of programmes that had to be completed by april '03.11. in reference to h.s. course being withdrawn from the college, a letter from the d.p.i., educational directorate, government of west bengal was being sent during the tenure of dr. khan as probationer principal urging the college authority to distribute the h.s. books in the college library among the neighbouring h.s. schools. though a resolution to the effect was adopted in the g.b. meeting dated 27.11.02, neither the books have been dispensed with nor any initiative has been taken to the effect till date.12. in reply to prof. j.n. chakraborty's letter issued to wbseb for arranging electricity connection to the new building of the college during his tenure as the teacher-in-charge, wbseb asked the college authority to deposit a certain amount of money. the matter was neither discussed in the g.b. meeting nor any initiative has been taken in this regard till date and the stipulated date for deposit of the money has expired during one-year tenure of dr. s.k. khan as the principal of the college on probation. .13. dr. khan is reported to have taken remuneration for. invigilation along with remuneration as the centre-in-charge although he acted only as the centre-in-charge of ba./b.sc./b.com. part-i general and hons. examinations, 2002 k.u.14. dr. s.k. khan practically did nothing except signing on bunches of papers painstakingly prepared within a stipulated six-day period by a group of teachers of the college as development proposals for financial assistance from, the u.g.c. during the xth plan period. this very much reflects the negative outlook of dr. khan in regard to development aspects of the college. it is furtherance strengthened by the fact that he got 5 trucks of earth unloaded on the proposed science building site of the college without any specific purpose and without the approval of the governing body.15. dr. khan markedly lacks the ability to motivate members of the college family to stand united and contribute positively to the academic prosperity of the college and as such the should not be allowed any more to continue in office as the principal of the college.16. i is reported that a bookseller co.-- 'dastupta & co. pvt. ltd. by name issued a cheque dated 24.03.03 (a/c no. 571384) worth rs. 500/- only in the name of s.k. khan allegedly against an advertisement in the souvenir published on the occasion of the 4th annual conference of all bengal principals' association, k.u. committee organised by the college on 21st september, 2002 and it inevitably raises a question as to the propriety of collection of money only in a person's name and not in the name of the organiser of the conference. it also prompts the college authorities to think it fit to detect if money were collected in terms of cheques issued in s.k. khan's name particularly when the conference is concerned and surprisingly enough when sri subhabrata de a lecturer in commerce and treasurer of the organising committee had to be informed by way of a statement about the incomes and expenditures which has not been submitted by dr. khan to prof. de till date.17. dr. khan is found to be guilty of abuse of power by putting 'on duty' mark in the attendance register at random without submitting supportive documents and without approval by the president of the governing body.18. on the occasion of the inauguration of the p.g. course in hindi on 09.10.02, dr. khan single-handedly chalked out a programme which started with the 'swaraswati vandana' to the extreme displeasure of the university officials and other guests. dr. biswanath roy chowdhury, secretary, wbcuta, north 24 parganas dist. committee left the function in protest. different circles condemned dr. khan's shameful act and he was very much responsible for embarrassing the college authority and lowering the prestige of the institution.19. kanchrapara college submitted an abstract of cost in two parts--rs. 20,00,000.00/- (twenty lakh only) and rs. 21.00.000.00/-(twenty one lakh only) respectively against the project of construction of a new building and the plan was sanctioned by the chief engineer, pwd. as a result, the department of higher education, government of west bengal released a total of rs. 20,00,000.00/- in the first phase including the college share of 25% of the amount. dr. khan miserably failed during his one-year tenure as probationer principal to produce the final utilisation certificate till date and get the remaining rs. 21,00,000.00 released though the college share for the amount to be released in the second phase has been spent by the college.20. although dr. (mrs.) anima kumar (konar), reader in philosophy retired in 31.02.02, dr. khan failed to submit requisition in proper manner to the west bengal college service commission till date for sending a teacher in philosophy against the vacant post.in the light of the above observations, all the hon'ble members of the governing body present in the meeting were unanimous as to disapproving confirmation to the principal during his probation in the course of one year except the following two.sri netai ghosh, secretary of the students' union, kanchrapara college and students' representative to the governing body noted his dissent as to the rejection of confirmation of the principal and demanded extension of his probation period.sri chhabi sengupta, teachers' representative to the governing body expressed his dissatisfaction over unsatisfactory services rendered by dr. khan to the college but wished that his probation period might be extended.under the circumstances, considering majority decision in favour of declining confirmation of the probationer principal, resolved with reference to item no. (vii) of the agenda that after evaluation of one-year service of dr. sunil kumar khan with effect from 07.05.02 as probationer principal of kanchrapara college it is being considered unsatisfactory and his probation period cannot be extended and therefore he is discharged from the post of principal with immediate effect i.e. from 06.05.03 evening under sub-section (2) of section 5 of the west bengal college teachers (security of service act), 1975.further resolved that sri joy narayan chakraborty, selection grade lecturer in economics of this college be appointed teacher-in-charge in the vacant post of dr. sunil kumar khan, the discharged probationer principal of kanchrapara college with effect from the evening of 06.05.03.resolved further that sri chakraborty will operate bank & treasury accounts as mentioned above together with any of the following g.b. members:1. sri jagadish chandra das, mla, president g.b. kanchrapara college.2. sri saroj ranjan sen, member, g.b. kanchrapara college. thereafter, the meeting concluded with a vote of thanks to the chair.'19. after hearing the learned counsel for the parties and after going through the aforesaid resolution, it appears that 20 different allegations have been levelled against the petitioner of which several are serious in nature including that of financial irregularity. it is true that in case of consideration of confirmation of a probationary, the employer is not required to give any reason. simply by recording that his service was not satisfactory, the employer can get rid of such employee. but the moment employer decides not to extend the service of the employee on various allegations which stigmatise his character and which have the effect on his future service career before any other employer, the law requires that an opportunity of hearing must be given to the petitioner. in this case it will appear from allegations contained in paragraphs 4, 8, 13, 14, 16, 17 and 18 of the resolution that the college authority has come to a definite conclusion on the basis of certain allegations supported by evidence. it is nobody's case that before arriving at such conclusion, the college authority ever apprised the petitioner of those allegations or called for explanation. under such circumstances, i find substance in the contention of mr. ganguly that the resolution taken by the college authority has definitely affected the future service of the petitioner in any other institutions and in such a case, before terminating the petitioner on the basis of those allegations, it was the duty of the college authority to give an opportunity of hearing.20. in the case of v.p. ahuja (supra) relied upon mr. ganguly, a probationer was terminated stating that he 'failed in the performance of his duties administratively and technically' without giving him opportunity to explain and such order was found to be stigmatic and punitive. in this case, graver charges relating to financial irregularity have been against the petitioner. thus, in this case, the order of termination is on the face of it defamed the petitioner.21. in the case of radhey sham gupta (supra) strongly relied upon by mr. bhattacharya, an allegation of financial irregularity was made against a probationer and the petitioner offered explanation. thereafter no departmental enquiry was held. however, an ex parte report was submitted by the general manager but such report was not served upon the probationer. ultimately, a simple order of termination was passed, stating that the probationer had been appointed as branch manager by order dated july 17, 1973 and condition 3 of the appointment order provided that his service could be terminated at any time after giving one month's notice or one month's pay in lieu thereof and that his service was terminated with immediate effect in terms of the aforementioned condition no. 3. the probationer was asked to obtain one month's pay from the general manager.22. on such a fact, the apex court held that in the order of termination there being no reference of any misconduct the order could not be set aside as stigmatic. in the case before us, in the resolution itself charges on 20 counts have been mentioned and on the basis of those charges the petitioner was terminated. thus, the principles laid down in the case of radhey shyam gupta (supra) cannot have any application to the facts of the present case.23. in my view, the principles laid down in the case of dipti prakash banerjee (supra) squarely apply to the facts of the present case.24. as regards the other allegation of lack of educational qualification of the president of the governing body, although i find substance in the contention of the petitioner that the said president had no requisite qualification, but such fact alone cannot invalidate the resolution of termination. if the president of the governing body had no requisite qualification, that can be challenged by any person having locus standi before appropriate forum. the petitioner being secretary of the governing body, could also challenge such appointment during his service period but he did not in the past challenge the qualification of the president and it appears that appointment of the petitioner was also signed by the said president. thus, on that score alone, i am not prepared to declare the resolution to be invalid.25. in view of what have been stated above, i find that the petitioner has been successful in establishing that the resolution taken by the college authority should be set aside on the ground that such resolution could not be taken without giving an opportunity of hearing to the petitioner and those allegations are the real reasons and motive of termination.26. i, thus, set aside the resolution dated 6th may, 2003, passed by the college authority and direct the college authority to restore the petitioner to the said post with effect from june 1, 2004. however, the college authority will be free to initiate regular enquiry proceeding against the petitioner on the basis of those allegations and on the basis of those allegations they can take appropriate step if they are dissatisfied with the defence that would be taken by the petitioner against those allegations. so long those allegations are not proved by regular enquiry proceeding, the petitioner should continue as the principal of college. the petitioner should be deemed to be in service as principal all through and he will be entitled to get only the amount of difference of pay between that of a principal and his actual salary paid to him as a lecturer as he was taken back in his old college as lecturer from 7th may, 2003. for other service benefit the aforesaid period will be taken into consideration as it he was working as a principal.the writ application is disposed of with the above direction.in the facts and circumstances, there will be, however, no order as to costs.
Judgment:

Bhaskar Bhattacharyya, J.

1. By this writ application, the petitioner, a Principal of the respondent College, has prayed for cancellation of the resolution of the Governing Body of the College dated May 6, 2003 by which the probationary period of the petitioner has not been further extended and he has been discharged from the post of Principal with effect from May 6, 2003.

2. Although the petitioner has further prayed for declaration that the provision of Sub-section 2 of Section 5 of the West Bengal College Teachers' (Security of Service) Act, 1975, is ultra vires the Constitution of India, such prayer was, however, not pressed at the time of hearing.

3. The following facts are not in dispute:

On July 17, 1986 being recommended by the West Bengal College Service Commission, the petitioner joined one Sree Gopal Banerjee College, District-Hooghly, affiliated to Burdwan University as a Lecturer in Botany and worked there till 6th May, 2002. Thereafter, the petitioner with effect from May 7, 2002 joined as the Principal of Kanchrapara College under University of Kalyani after being recommended by the West Bengal College Service Commission.

4. After receipt of the said letter of appointment, the petitioner reported for duty on 7th May, 2002 (forenoon). The said Kanchrapara College is a College affiliated to the University of Kalyani and the same is a Government sponsored College and run solely on the basis of Government grants.

5. It appears from record that on the expiry of one year service of the petitioner, a meeting of the Governing Body of the said College was held on 6th May, 2003 at 4.00 p.m. in the Principal's chamber and item No. 7 of the agenda was to consider the confirmation of the petitioner as Principal of the College on completion of his one year service in the College.

6. On that day, Governing Body of the College took a resolution that on evaluation of one year service of the petitioner with effect from 7th May, 2002 as probationary Principal, it was found that the same was unsatisfactory and, as such, the Governing Body resolved not to extend the service of the petitioner and, thus, discharged him from the post of the Principal with immediate effect.

7. Being dissatisfied, the petitioner has come up before this Court.

8. Mr. Ganguly, the learned counsel appearing on behalf of the petitioner, has challenged the aforesaid resolution on the ground that from the resolution itself, it would appear that various allegations have been recorded against the petitioner for which no opportunity of being heard was given to the petitioner. According to him, the order passed on the basis of such resolution is vitiated on the ground of attaching stigma. He, thus, prays for setting aside the order of termination.

9. In support of such allegations, Mr. Ganguly has relied upon the following decisions of the Supreme Court:

1. Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors. reported in : [1999]1SCR532 .

2. Radhey Shyam Gupta v. Uttar Pradesh State Agro Industries Corporation Ltd. and Anr., : (1999)ILLJ432SC

3. V.P. Ahuja v. State of Punjab and Ors., : (2000)ILLJ1099SC .

10. Apart from the aforesaid point, Mr. Ganguly further contended that it would appear from the qualification of the president of the Governing Body of the College that he had the educational qualification of just being matriculated and he was an M.L.A. of a ruling political party. According to Mr. Ganguly in the Kalyani University Act, there is specific qualification prescribed for the president of the Governing Body of the College. The said president not having the requisite qualification, according to Mr. Ganguly, the resolution taken by the Governing Body should be set aside.

11. This application is opposed by both the College concerned and the University of Kalyani and affidavit-in-opposition has been filed by the College authority.

12. Mr. Bhattacharya, the learned senior counsel appearing on behalf of the College authority, has disputed the aforesaid contention of Mr. Ganguly and has contended that the petitioner being a probationer, there was no necessity of giving any opportunity of hearing before taking resolution of discharging him from the service. According to Mr. Bhattacharya, the findings recorded by the Governing Body of the College merely records unsatisfactory service of the petitioner and as such, no stigma against the petitioner is attached in the said order. In this connection, Mr. Bhattacharya relies upon the decision Radhey Shyam Gupta (supra) cited by Mr. Ganguly and submits that the facts appearing from the resolution are merely the foundation of termination order and not the motive.

13. As regards the other allegation that the president of the Governing Body had no requisite qualification, Mr. Bhattacharya contends that even if he had no such requisite qualification, for that reason the decision of the Governing Body cannot be vitiated. He thus prays for dismissal of the writ application.

14. Mr. Kargupta, the learned advocate appearing on behalf of the University, has supported the contention of Mr. Bhattacharya and prays for dismissal of the writ application.

15. Therefore, the first question that arises for determination in this writ application is whether the resolution of the Governing Body of the College attaches any stigma against the petitioner so as to vitiate the order of discharge.

16. In order to appreciate the aforesaid contention, it is necessary to refer to the actual resolutions taken by the Governing Body of the College on Item No. VII of the agenda which are quoted below:

'Item No. VII of the Agenda: To consider the confirmation of service of Dr. Sunil Kumar Khan as Principal of this College on completion of his one year service in this College.

17. Dr. Sunil Kumar Khan, the probationer Principal of Kanchrapara College voluntarily left the meeting with the consent of the Chairman saying that he should not stay inside during discussions on the issue of his confirmation in the course of his one-year service to the College.

18. The observations placed on record of the Hon'ble members of the Governing Body during discussions on the issue of confirmation of Dr. S.K. Khan were as follows:

1. Dr. Khan miserably failed to take initiative till date in the matter of arranging a room allotted for B.Sc. Computer (Gen. & Hons.) course proposed to be introduced from the next academic session i.e. 2003-2004 though Rs. 50,000/- were provisionally sanctioned by the 4th G.B. of the College in its meeting dated 04.02.03.

2. classes and the examination process have been badly hampered for his whimsical attitude and attendant failure in regard to placing orders for 100 benches though quotations were collected for the purpose in accordance with a G.B. resolution approving the purchase of 100 benches in its meeting dated 16.11.02 and sanctioning fund for the purpose.

3. Dr. Khan abstained from a very important meeting of the Service Book Sub-Committee dated 07.10.2002 being himself the convenor of the meeting and it badly reflects his lack of accountability towards the College and its employees.

4. It was reported that Dr. Khan carried without knowledge and consent of the appropriate College authority a lot of important files including G.B. minutes books and files for reasons not known to anybody and nobody knows whether the files and other important documents and papers were safely returned to the College.

5. it is quite unbecoming for Dr. Khan, M.Sc. Ph.D in Botany that he did not take a single class in his subject basically being a teacher and the Principal of the College during his one-year tenure as the Principal on probation.

6. whereas in B.A. History Honours introduced from the academic session 2002-2003 on self-financing basis, a full-time teacher is required to take 21 classes a week, the existing class-routine offers him only 7 classes a week to take. Despite repeated requests and urge from concerned teachers of the History department and teachers belonging to other departments for framing a full-fledged scientific routine in accordance with a circular from the West Bengal Council of Higher Education, he could not surprisingly take any positive step in this regard till date. Over and above, most surprisingly, the sum of Rs. 25,000/- sanctioned by the G.B. in its meeting dated 16.11.02 for purchase of books in History hons. Has not been released till date leading to growing resentment among concerned teachers.

7. Though the intake capacity in regard to admission of students in B.A./B.Sc./B.Com. General and honours streams has been fixed by the University, Dr. Khan has to be squarely blamed for admission of students during the academic session 2002-2003 far beyond intake capacity in different hons. Subjects and general courses at the undergraduate level and specially for gross anomaly in admission in B.Sc. Zoology Hons. Course through admission of two students in Zoology Hons. With lower marks superseding those with higher marks leading to unprecedented students' agitation and boycott of classes by the students followed by a near halt of the academic progress of the Institution.

8. It is a matter of shame for the institution and a gross violation of the G.B. norms when Dr. Khan, the probationer Principal of Kanchrapara College did neither report to the G.B. nor got the fact approved by the G.B. in its meeting that he had admitted students far beyond the intake capacity fixed by the University of Kalyani. Incidentally, all this was done in blatant violation of the decision taken in the G.B. meeting dated 24.09.02 and subsequently confirmed in another G.B. Meeting dated 27.11.02. All this amply proves that he was tended to tamper with G.B. resolutions. Resolutions adopted in G.B. meetings were found to differ with those taken up for confirmation in the immediately next G.B. meetings.

9. Post-graduate teaching in Hindi suffered a lot and the concerned students badly missed classes in P.G. Hindi course introduced from the academic session 2002-2003 followed by a large portion of the syllabus remaining unfinished, as Dr. Khan practically did nothing in six-month period to arrange recruitment of guest-lecturers in Hindi.

10. During the tenure of Prof. J.N. Chakraborty as the Teacher-in-Charge of the College with effect from 01.02.02 to 06.05.02, it was decided that the College would introduce N.S.S. and a letter was sent to the effect to programme co-ordinator, Kalyani University. Suggestion of appointing Sri Subhabrata De, Lecturer in Commerce, Kanchrapara College as the programme officer for the College N.S.S. unit was approved by the University and a sum of Rs. 20,000/- (twenty thousand only) was sent by the programme co-ordinator with instructions towards execution of specific programmes to be completed immediately. Furthermore, it was resolved in the G.B. meeting dated 04.02.02 that a separate account be opened for N.S.S. unit of the College. Neither this decision has been translated into action nor Sri Subhabrata De has been issued an official letter of appointment by Dr. Khan till date. As a result the N.S.S. scheme introduced in the College is on the verge of being frustrated after the University issued a letter asking for utilisation of the money and reports of programmes that had to be completed by April '03.

11. In reference to H.S. course being withdrawn from the College, a letter from the D.P.I., Educational Directorate, Government of West Bengal was being sent during the tenure of Dr. Khan as probationer Principal urging the College authority to distribute the H.S. books in the College library among the neighbouring H.S. schools. Though a resolution to the effect was adopted in the G.B. meeting dated 27.11.02, neither the books have been dispensed with nor any initiative has been taken to the effect till date.

12. In reply to Prof. J.N. Chakraborty's letter issued to WBSEB for arranging electricity connection to the new building of the College during his tenure as the Teacher-in-Charge, WBSEB asked the College authority to deposit a certain amount of money. The matter was neither discussed in the G.B. meeting nor any initiative has been taken in this regard till date and the stipulated date for deposit of the money has expired during one-year tenure of Dr. S.K. Khan as the Principal of the College on probation. .

13. Dr. Khan is reported to have taken remuneration for. invigilation along with remuneration as the Centre-in-Charge although he acted only as the Centre-in-Charge of BA./B.Sc./B.Com. part-I general and hons. Examinations, 2002 K.U.

14. Dr. S.K. Khan practically did nothing except signing on bunches of papers painstakingly prepared within a stipulated six-day period by a group of teachers of the College as development proposals for financial assistance from, the U.G.C. during the Xth plan period. This very much reflects the negative outlook of Dr. Khan in regard to development aspects of the College. It is furtherance strengthened by the fact that he got 5 trucks of earth unloaded on the proposed Science building site of the College without any specific purpose and without the approval of the Governing Body.

15. Dr. Khan markedly lacks the ability to motivate members of the College family to stand united and contribute positively to the academic prosperity of the College and as such the should not be allowed any more to continue in office as the Principal of the College.

16. I is reported that a bookseller co.-- 'Dastupta & Co. Pvt. Ltd. by name issued a cheque dated 24.03.03 (A/c No. 571384) worth Rs. 500/- only in the name of S.K. Khan allegedly against an advertisement in the souvenir published on the occasion of the 4th Annual Conference of All Bengal Principals' Association, K.U. Committee organised by the College on 21st September, 2002 and it inevitably raises a question as to the propriety of collection of money only in a person's name and not in the name of the organiser of the conference. It also prompts the College authorities to think it fit to detect if money were collected in terms of cheques issued in S.K. Khan's name particularly when the conference is concerned and surprisingly enough when Sri Subhabrata De a lecturer in Commerce and Treasurer of the organising committee had to be informed by way of a statement about the incomes and expenditures which has not been submitted by Dr. Khan to Prof. De till date.

17. Dr. Khan is found to be guilty of abuse of power by putting 'on duty' mark in the attendance register at random without submitting supportive documents and without approval by the President of the Governing Body.

18. On the occasion of the inauguration of the P.G. course in Hindi on 09.10.02, Dr. Khan single-handedly chalked out a programme which started with the 'Swaraswati Vandana' to the extreme displeasure of the University officials and other guests. Dr. Biswanath Roy Chowdhury, Secretary, WBCUTA, North 24 Parganas Dist. Committee left the function in protest. Different circles condemned Dr. Khan's shameful act and he was very much responsible for embarrassing the College authority and lowering the prestige of the Institution.

19. Kanchrapara College submitted an abstract of cost in two parts--Rs. 20,00,000.00/- (Twenty lakh only) and Rs. 21.00.000.00/-(Twenty one lakh only) respectively against the project of construction of a new building and the plan was sanctioned by the Chief Engineer, PWD. As a result, the department of Higher Education, Government of West Bengal released a total of Rs. 20,00,000.00/- in the first phase including the College share of 25% of the amount. Dr. Khan miserably failed during his one-year tenure as probationer Principal to produce the final utilisation certificate till date and get the remaining Rs. 21,00,000.00 released though the College share for the amount to be released in the second phase has been spent by the College.

20. Although Dr. (Mrs.) Anima Kumar (Konar), Reader in Philosophy retired in 31.02.02, Dr. Khan failed to submit requisition in proper manner to the West Bengal College Service Commission till date for sending a teacher in philosophy against the vacant post.

In the light of the above observations, all the Hon'ble members of the Governing Body present in the meeting were unanimous as to disapproving confirmation to the Principal during his probation in the course of one year except the following two.

Sri Netai Ghosh, Secretary of the Students' Union, Kanchrapara College and students' representative to the Governing Body noted his dissent as to the rejection of confirmation of the Principal and demanded extension of his probation period.

Sri Chhabi Sengupta, Teachers' Representative to the Governing Body expressed his dissatisfaction over unsatisfactory services rendered by Dr. Khan to the College but wished that his probation period might be extended.

Under the circumstances, considering majority decision in favour of declining confirmation of the probationer Principal, resolved with reference to Item No. (VII) of the agenda that after evaluation of one-year service of Dr. Sunil Kumar Khan with effect from 07.05.02 as probationer Principal of Kanchrapara College it is being considered unsatisfactory and his probation period cannot be extended and therefore he is discharged from the post of Principal with immediate effect i.e. from 06.05.03 evening under Sub-section (2) of Section 5 of the West Bengal College Teachers (Security of Service Act), 1975.

Further resolved that Sri Joy Narayan Chakraborty, Selection Grade Lecturer in Economics of this College be appointed Teacher-in-Charge in the vacant post of Dr. Sunil Kumar Khan, the discharged probationer Principal of Kanchrapara College with effect from the evening of 06.05.03.

Resolved further that Sri Chakraborty will operate Bank & Treasury Accounts as mentioned above together with any of the following G.B. Members:

1. Sri Jagadish Chandra Das, MLA, President G.B. Kanchrapara College.

2. Sri Saroj Ranjan Sen, Member, G.B. Kanchrapara College. Thereafter, the meeting concluded with a vote of thanks to the chair.'

19. After hearing the learned counsel for the parties and after going through the aforesaid resolution, it appears that 20 different allegations have been levelled against the petitioner of which several are serious in nature including that of financial irregularity. It is true that in case of consideration of confirmation of a probationary, the employer is not required to give any reason. Simply by recording that his service was not satisfactory, the employer can get rid of such employee. But the moment employer decides not to extend the service of the employee on various allegations which stigmatise his character and which have the effect on his future service career before any other employer, the law requires that an opportunity of hearing must be given to the petitioner. In this case it will appear from allegations contained in paragraphs 4, 8, 13, 14, 16, 17 and 18 of the resolution that the College authority has come to a definite conclusion on the basis of certain allegations supported by evidence. It is nobody's case that before arriving at such conclusion, the College authority ever apprised the petitioner of those allegations or called for explanation. Under such circumstances, I find substance in the contention of Mr. Ganguly that the resolution taken by the College authority has definitely affected the future service of the petitioner in any other institutions and in such a case, before terminating the petitioner on the basis of those allegations, it was the duty of the College authority to give an opportunity of hearing.

20. In the case of V.P. Ahuja (supra) relied upon Mr. Ganguly, a probationer was terminated stating that he 'failed in the performance of his duties administratively and technically' without giving him opportunity to explain and such order was found to be stigmatic and punitive. In this case, graver charges relating to financial irregularity have been against the petitioner. Thus, in this case, the order of termination is on the face of it defamed the petitioner.

21. In the case of Radhey Sham Gupta (supra) strongly relied upon by Mr. Bhattacharya, an allegation of financial irregularity was made against a probationer and the petitioner offered explanation. Thereafter no departmental enquiry was held. However, an ex parte report was submitted by the General Manager but such report was not served upon the probationer. Ultimately, a simple order of termination was passed, stating that the probationer had been appointed as Branch Manager by order dated July 17, 1973 and condition 3 of the appointment order provided that his service could be terminated at any time after giving one month's notice or one month's pay in lieu thereof and that his service was terminated with immediate effect in terms of the aforementioned condition No. 3. The probationer was asked to obtain one month's pay from the General Manager.

22. On such a fact, the Apex Court held that in the order of termination there being no reference of any misconduct the order could not be set aside as stigmatic. In the case before us, in the resolution itself charges on 20 counts have been mentioned and on the basis of those charges the petitioner was terminated. Thus, the principles laid down in the case of Radhey Shyam Gupta (supra) cannot have any application to the facts of the present case.

23. In my view, the principles laid down in the case of Dipti Prakash Banerjee (supra) squarely apply to the facts of the present case.

24. As regards the other allegation of lack of educational qualification of the president of the Governing Body, although I find substance in the contention of the petitioner that the said president had no requisite qualification, but such fact alone cannot invalidate the resolution of termination. If the president of the Governing Body had no requisite qualification, that can be challenged by any person having locus standi before appropriate forum. The petitioner being secretary of the Governing Body, could also challenge such appointment during his service period but he did not in the past challenge the qualification of the president and it appears that appointment of the petitioner was also signed by the said president. Thus, on that score alone, I am not prepared to declare the resolution to be invalid.

25. In view of what have been stated above, I find that the petitioner has been successful in establishing that the resolution taken by the College authority should be set aside on the ground that such resolution could not be taken without giving an opportunity of hearing to the petitioner and those allegations are the real reasons and motive of termination.

26. I, thus, set aside the resolution dated 6th May, 2003, passed by the College authority and direct the College authority to restore the petitioner to the said post with effect from June 1, 2004. However, the College authority will be free to initiate regular enquiry proceeding against the petitioner on the basis of those allegations and on the basis of those allegations they can take appropriate step if they are dissatisfied with the defence that would be taken by the petitioner against those allegations. So long those allegations are not proved by regular enquiry proceeding, the petitioner should continue as the Principal of College. The petitioner should be deemed to be in service as Principal all through and he will be entitled to get only the amount of difference of pay between that of a principal and his actual salary paid to him as a lecturer as he was taken back in his old College as lecturer from 7th May, 2003. For other service benefit the aforesaid period will be taken into consideration as it he was working as a Principal.

The writ application is disposed of with the above direction.

In the facts and circumstances, there will be, however, no order as to costs.