Sambhu Nath MetiA. Vs. the State of West Bengal and ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/920313
SubjectService
CourtKolkata High Court
Decided OnJun-30-2011
Case NumberW. P. No. 9503(W) of 2011
JudgeJyotirmay Bhattacharya, J.
ActsManagement Rules - Rule 28(8) and (8a)
AppellantSambhu Nath MetiA.
RespondentThe State of West Bengal and ors.
Appellant AdvocateMr. Partha Sarathi Basu; Mr. Satyajit Talukdar, Advs
Respondent AdvocateMr. Sadananda Ganguly; Mrs. Smita Das Dey, Advs
Excerpt:
1. on 25th january, 2010, the managing committee of kelomal santoshini high school in the district of purba medinipur, adopted a resolution proposing to hold a proper and regular disciplinary proceeding against the petitioner who is the suspended headmaster of the said school. pursuant to the said resolution a charge-sheet dated 17th april, 2010 containing several charges was served upon the petitioner. the petitioner was called upon to submit his written statement of defence to the secretary of the said school within a fortnight from the date of the receipt of this charge-sheet with a rider that if he does not submit his written statement of defence within the specified period, the school authority will hold an inquiry against him on receipt of the board’s approval at the first stage. 2. the petitioner felt aggrieved and as such he filed a writ petition being w.p. no. 10579(w) of 2010 before this court challenging legality and validity of the said charge-sheet issued by the secretary of the said school. the said writ petition was disposed of by a learned single judge of this hon’ble court on 16th september, 2010 without entering into the dispute as to whether the charge-sheet was legal, proper and valid in the eye of the law or not. his lordship made it clear that the said question regarding legality and validity of the said charge-sheet was left open to be considered at a latter stage, if at all based thereon any penal action is taken against him. 3. considering that the petitioner was kept under suspension for quite sometime and also by taking note of the fact that the petitioner was due to retire in november, 2011, his lordship felt the necessity of concluding the said disciplinary proceeding at an early date. accordingly, the said writ petition was disposed of with the following direction:- “the charge-sheet dated 17-04-2010 issued by the secretary of the school against the petitioner is the subject matter of challenge in this petition.  as this stage, this court is not inclined to enter into the dispute raised by the petitioner. whether or ot the charge-sheet is legal, proper and valid in the eye of law may be considered at a later stage if at all based thereon any penal action is taken against him.  the petitioner has been under suspension for quite some time. it is in his best interest that the disciplinary proceedings come to an end at an early date. since the petitioner is due to retire in november, 2011, the disciplinary proceedings must be brought to its logical conclusion at an early date.  having heard the learned advocates for the respective parties, this petition stands disposed of granting liberty to the petitioner to reply to the charges within 30th september, 2010. the school authority shall conclude the enquiry into the charges, if at all it is considered necessary, within six months from the date the decision is taken to conduct enquiry against the petitioner. the petitioner shall co-operate with the school so that the enquiry is concluded within the period mentioned above. needless to observe that the enquiry shall be conducted upon affording reasonable and adequate opportunity to the petitioner to defend the charges. it is made clear that in the event the school decides against holding enquiry or the enquiry is not concluded within six months as directed above, the order of suspension shall stand revoked and the petitioner shall be allowed to resume duty.  no opinion is expressed on the merits of the proceedings initiated against the petitioner and all points are left open to be urged by him in course of enquiry or thereafter, if at all any enquiry is conducted against him.  there shall be no order as to costs.” 4. pursuant to the order passed in the earlier writ petition, as aforesaid, the petitioner submitted his reply to the said charge-sheet on 27th september, 2010. thereafter on 10th october, 2010, the managing committee, after considering the said reply, formed an opinion that the reply, submitted by the petitioner to the said charge-sheet, was not satisfactory and as such it was decided by the managing committee that the secretary of the managing committee will submit all relevant papers to the board for its approval at the first stage for initiating a disciplinary proceeding against the headmaster. 5. on the basis of the said decision of the managing committee of the said school, the secretary of the said school submitted all the relevant papers before the board praying for its approval at the first stage, for initiating departmental proceeding against the petitioner. after considering those papers, the board approved the school’s proposal for proceeding with the said disciplinary proceeding and the said decision of the board was communicated to the school authority by the deputy director (administration) of the board by his memo dated 14th december, 2010. after receipt of such approval from the board, the managing committee, in its meeting held on 04-01-2011 discussed the charge-sheet, the reply and the board’s approval and resolved that the inquiry which was proposed against the said headmaster will be completed. thereafter an inquiry officer and a presenting officer were appointed by the school authority for holding the said inquiry against the petitioner. the school authorities decided to complete the said inquiry within six months from 4th january, 2011 i.e. the date when they ultimately decided to hold an inquiry into the charges brought against the said headmaster. thus, the second stage of disciplinary proceeding has already commenced, after the aforesaid proposal of the school, was approved by the board at the first stage of the disciplinary proceeding. 6. it is alleged by the petitioner that in view of the order passed by this hon’ble court in the earlier writ petition on 16th september, 2010, the six months time which was given to the school authority for concluding the said inquiry expired on 15th may, 2011. it is further alleged by the petitioner that since the school authority failed to conclude the said inquiry within the stipulated time, the petitioner wanted to resume his duty in may, 2011 as, according to him, the suspension order stood automatically withdrawn after 15th may, 2011, as the school authority failed to complete the enquiry within the stipulated time. since the petitioner was prevented from joining his duty by the school authority, the petitioner has come before this court with this writ petition seeking issuance of direction upon the school authority for permitting the petitioner to resume his duty immediately. 7. learned advocate, appearing for the school authority, does not dispute such contention of the petitioner regarding their refusal to allow the petitioner to resume his duty. he, however, tried to justify the reasons for which his client did not allow the petitioner to resume his duty. 8. according to him, under rule 28(8) and (8a) of the management rules, the disciplinary proceeding against the teaching and non-teaching staff of the said institution is required to be concluded in two stages. it is contended by him that the second stage of the disciplinary proceeding cannot be commenced unless the board approves the first stage of the disciplinary proceeding. it is pointed out by him that the school’s proposal to proceed with the disciplinary proceeding against the petitioner was approved by the board on 14th december, 2010 and immediately upon receipt of the board’s approval, the managing committee of the said school, after discussing the charge-sheet, its reply and the board’s approval ultimately resolved on 4th january, 2011 to continue with the disciplinary proceeding and to complete the inquiry against the petitioner within six months from that date. according to him, the six months time which was given to the school authority for concluding the inquiry proceeding by this court in the order dated 16th september, 2010 passed in the earlier writ petition, should be reckoned from 4th january, 2011 when the school authority ultimately resolved to proceed against the petitioner in the second stage of the disciplinary proceeding. it is, thus, contended by him that in terms of the order passed by this hon’ble court in the earlier writ petition, the time for conclusion of the said inquiry will expire on 3rd july, 2011 and if the inquiry cannot be concluded within the said specified period, then the order of suspension which was passed against the petitioner will stand automatically withdrawn. he thus, contended that since the petitioner is still under suspension, his client did not allow the petitioner to resume his duty in may 2011. 9. in this context, this court has to consider as to whether the school authority was justified in preventing the petitioner to resume his duty after 15th may, 2011. 10. thus, this court finds that the fate of this writ is practically dependant upon the interpretation of the order passed by the learned single judge of this court on 16th september, 2010 in the earlier writ petition, as aforesaid. 11. for giving proper interpretation to the said order, this court is also required to keep in mind the provisions in rule 28(8) and (8a) of the management rules. rule 28(8) of the said rules prescribes the modalities for initiation and conclusion of a disciplinary proceeding against the teaching and non-teaching staff of the government aided and unaided institution. the said rules provide that whenever the school authority proposes to remove or dismiss any permanent or temporary teacher or other employees, the school authority is required to 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 proposes to be proceeded against is ordinarily required to submit his explanation within a fortnight of the receipt of the charge-sheet. thereafter the committee is required to send to the board all the relevant papers including the charge-sheet, explanation submitted by the teacher or the employee concerned and the reasons for which the committee decides in favour of taking disciplinary action. the said provision also provides that if after considering the said materials, the board forms any opinion that there are sufficient grounds for taking disciplinary action and approves the school’s proposal to proceed with the disciplinary proceeding against the charge-sheeted employee, then the committee shall issue formal notice calling upon the teacher or the employee concerned to showcause ordinarily within a fortnight as to why he should not be dismissed or removed from service. 12. thus, the second stage of disciplinary proceeding commences from this stage after school’s proposal is approved by the board at the first stage. thus, the committee is required to send again all the relevant papers to the board including the explanation submitted by the teacher or the employee concerned and the recommendation of the committee for the action proposed to be taken. the decision which will be taken on the said recommendation of the committee, shall be final. the school authority thereafter can impose suitable penalty upon the teacher and/or nonteaching staff by observing the procedure laid down in sub-rule 8. 13. the underlined portion of the preceding paragraph, in my view, is the decisive factor in the present case and as such emphasis will be given to the underlined portion of the preceding paragraph. 14. the said provision makes it clear that at the first stage of disciplinary proceeding, along with the charge-sheet and the explanation given by the teacher, the school authority is required to inform the board the reasons for which the school authority decides in favour of taking disciplinary action against him. the said provision provides that before taking such decision, reasonable opportunity to defend should be given to the teacher. thus, the modalities prescribed in the said provision at the first stage of the disciplinary proceeding shows that enquiry should be made by the school authority before seeking approval of the board at the first stage. if the board gives approval to the school’s proposal to proceed with the said disciplinary proceeding, then the second stage will commence. in the second stage, the committee shall issue notice calling upon the teacher to show cause as to why he should not be dismissed or removed from service. if any reply is given to the said show cause by the teacher, the managing committee is required to consider the same, and will take the decision as to the action which the school authority proposes to take against the teacher. thereafter the school authority is required to send all these papers to the board for its decision and the decision of the board, in this regard, will be final. thus, the modalities prescribed in the second stage does not prescribe for holding another set of enquiry at the second stage. only an opportunity is required to be given to the said teacher before taking any decision as to the action proposed to be taken by the managing committee against the said teacher. thus, in the second stage the nature of punishment to be imposed upon the chargesheeted employee is the primary and principal consideration before the school authority as well as before the board. 15. if the order passed on 16th september, 2010 in the earlier writ petition is considered in the light of the provision contained in rule 28(8) of the said rule, then this court has no hesitation to hold that the six months time which was given to the school authority for concluding the enquiry should be reckoned from the date when the school authority took the decision to hold an inquiry against the petitioner. 16. in fact, on 10th october, 2010, the managing committee, recorded in its resolution that the school authority is not satisfied with the explanation given by the petitioner to the chargesheet and as such it was decided on that date that they will submit the relevant papers to the board for its approval at the first stage for proceeding with the disciplinary proceeding against the petitioner, as per rules. 17. thus, this court is of the view, that when the managing committee took a decision for seeking approval at the first stage from the board, the six months’ time limit for concluding the enquiry should be reckoned from that date as without holding enquiry, the committee cannot give the reasons for which the committee decided to take disciplinary action against the petitioner. 18. as such, this court holds that 10th september, 2010 was the starting point of limitation and as such the managing committee ought to have concluded the enquiry within 10th march, 2011. 19. this court finds that the managing committee, in fact, has not taken any step to start the enquiry within the stipulated date. enquiry officer and presenting officer were appointed on 18th may, 2011, after the expiry of the stipulated period. 20. thus, this court has no hesitation to hold that the school authority has failed to complete the enquiry within the stipulated period and as a result the suspension order stood vacated on 11th march, 2011. thus, the school authority, in my view, was not justified in refusing the petitioner to join his duties, when he intended to join in may 2011. 21. the school authority is, thus, directed to allow the petitioner to resume his duty immediately. however, the disciplinary proceeding may be proceeded with and be concluded as per the rule 28(8) and (8a) of the management rules as early as possible. since the petitioner is due to retire in november, 2011, the school authority is directed to conclude the disciplinary proceeding by the end of august, 2011. the board is also directed to take the decision on the school’s proposal to impose penalty upon the petitioner as urgently as possibly so that the time limit for conclusion of the disciplinary proceeding against the petitioner, as mentioned above, is strictly maintained. 22. this writ petition is, thus, disposed of. 23. urgent xerox certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible.
Judgment:

1. On 25th January, 2010, the Managing Committee of Kelomal Santoshini High School in the District of Purba Medinipur, adopted a resolution proposing to hold a proper and regular disciplinary proceeding against the petitioner who is the suspended Headmaster of the said school. Pursuant to the said resolution a charge-sheet dated 17th April, 2010 containing several charges was served upon the petitioner. The petitioner was called upon to submit his written statement of defence to the Secretary of the said school within a fortnight from the date of the receipt of this charge-sheet with a rider that if he does not submit his written statement of defence within the specified period, the school authority will hold an inquiry against him on receipt of the Board’s approval at the first stage.

2. The petitioner felt aggrieved and as such he filed a writ petition being W.P. No. 10579(W) of 2010 before this Court challenging legality and validity of the said charge-sheet issued by the Secretary of the said school. The said writ petition was disposed of by a learned Single Judge of this Hon’ble Court on 16th September, 2010 without entering into the dispute as to whether the charge-sheet was legal, proper and valid in the eye of the law or not. His Lordship made it clear that the said question regarding legality and validity of the said charge-sheet was left open to be considered at a latter stage, if at all based thereon any penal action is taken against him.

3. Considering that the petitioner was kept under suspension for quite sometime and also by taking note of the fact that the petitioner was due to retire in November, 2011, His Lordship felt the necessity of concluding the said disciplinary proceeding at an early date. Accordingly, the said writ petition was disposed of with the following direction:-

“The charge-sheet dated 17-04-2010 issued by the Secretary of the school against the petitioner is the subject matter of challenge in this petition.

 As this stage, this Court is not inclined to enter into the dispute raised by the petitioner. Whether or ot the charge-sheet is legal, proper and valid in the eye of law may be considered at a later stage if at all based thereon any penal action is taken against him.

 The petitioner has been under suspension for quite some time. It is in his best interest that the disciplinary proceedings come to an end at an early date. Since the petitioner is due to retire in November, 2011, the disciplinary proceedings must be brought to its logical conclusion at an early date.

 Having heard the learned Advocates for the respective parties, this petition stands disposed of granting liberty to the petitioner to reply to the charges within 30th September, 2010. The school authority shall conclude the enquiry into the charges, if at all it is considered necessary, within six months from the date the decision is taken to conduct enquiry against the petitioner. The petitioner shall co-operate with the school so that the enquiry is concluded within the period mentioned above.

Needless to observe that the enquiry shall be conducted upon affording reasonable and adequate opportunity to the petitioner to defend the charges.

It is made clear that in the event the school decides against holding enquiry or the enquiry is not concluded within six months as directed above, the order of suspension shall stand revoked and the petitioner shall be allowed to resume duty.

 No opinion is expressed on the merits of the proceedings initiated against the petitioner and all points are left open to be urged by him in course of enquiry or thereafter, if at all any enquiry is conducted against him.

 There shall be no order as to costs.”

4. Pursuant to the order passed in the earlier writ petition, as aforesaid, the petitioner submitted his reply to the said charge-sheet on 27th September, 2010. Thereafter on 10th October, 2010, the Managing Committee, after considering the said reply, formed an opinion that the reply, submitted by the petitioner to the said charge-sheet, was not satisfactory and as such it was decided by the Managing Committee that the Secretary of the Managing Committee will submit all relevant papers to the Board for its approval at the first stage for initiating a disciplinary proceeding against the Headmaster.

5. On the basis of the said decision of the Managing Committee of the said school, the Secretary of the said school submitted all the relevant papers before the Board praying for its approval at the first stage, for initiating departmental proceeding against the petitioner. After considering those papers, the Board approved the School’s proposal for proceeding with the said disciplinary proceeding and the said decision of the Board was communicated to the school authority by the Deputy Director (Administration) of the Board by his memo dated 14th December, 2010. After receipt of such approval from the Board, the Managing Committee, in its meeting held on 04-01-2011 discussed the charge-sheet, the reply and the Board’s approval and resolved that the inquiry which was proposed against the said Headmaster will be completed. Thereafter an inquiry officer and a presenting officer were appointed by the school authority for holding the said inquiry against the petitioner. The school authorities decided to complete the said inquiry within six months from 4th January, 2011 i.e. the date when they ultimately decided to hold an inquiry into the charges brought against the said Headmaster. Thus, the second stage of disciplinary proceeding has already commenced, after the aforesaid proposal of the school, was approved by the Board at the first stage of the disciplinary proceeding.

6. It is alleged by the petitioner that in view of the order passed by this Hon’ble Court in the earlier writ petition on 16th September, 2010, the six months time which was given to the school authority for concluding the said inquiry expired on 15th May, 2011. It is further alleged by the petitioner that since the school authority failed to conclude the said inquiry within the stipulated time, the petitioner wanted to resume his duty in May, 2011 as, according to him, the suspension order stood automatically withdrawn after 15th May, 2011, as the school authority failed to complete the enquiry within the stipulated time. Since the petitioner was prevented from joining his duty by the school authority, the petitioner has come before this Court with this writ petition seeking issuance of direction upon the school authority for permitting the petitioner to resume his duty immediately.

7. Learned Advocate, appearing for the school authority, does not dispute such contention of the petitioner regarding their refusal to allow the petitioner to resume his duty. He, however, tried to justify the reasons for which his client did not allow the petitioner to resume his duty.

8. According to him, under Rule 28(8) and (8a) of the Management Rules, the disciplinary proceeding against the teaching and non-teaching staff of the said Institution is required to be concluded in two stages. It is contended by him that the second stage of the disciplinary proceeding cannot be commenced unless the Board approves the first stage of the disciplinary proceeding. It is pointed out by him that the school’s proposal to proceed with the disciplinary proceeding against the petitioner was approved by the Board on 14th December, 2010 and immediately upon receipt of the Board’s approval, the Managing Committee of the said school, after discussing the charge-sheet, its reply and the Board’s approval ultimately resolved on 4th January, 2011 to continue with the disciplinary proceeding and to complete the inquiry against the petitioner within six months from that date. According to him, the six months time which was given to the school authority for concluding the inquiry proceeding by this Court in the order dated 16th September, 2010 passed in the earlier writ petition, should be reckoned from 4th January, 2011 when the school authority ultimately resolved to proceed against the petitioner in the second stage of the disciplinary proceeding. It is, thus, contended by him that in terms of the order passed by this Hon’ble Court in the earlier writ petition, the time for conclusion of the said inquiry will expire on 3rd July, 2011 and if the inquiry cannot be concluded within the said specified period, then the order of suspension which was passed against the petitioner will stand automatically withdrawn. He thus, contended that since the petitioner is still under suspension, his client did not allow the petitioner to resume his duty in May 2011.

9. In this context, this Court has to consider as to whether the school authority was justified in preventing the petitioner to resume his duty after 15th May, 2011.

10. Thus, this Court finds that the fate of this writ is practically dependant upon the interpretation of the order passed by the learned Single Judge of this Court on 16th September, 2010 in the earlier writ petition, as aforesaid.

11. For giving proper interpretation to the said order, this Court is also required to keep in mind the provisions in Rule 28(8) and (8a) of the Management Rules. Rule 28(8) of the said Rules prescribes the modalities for initiation and conclusion of a disciplinary proceeding against the teaching and non-teaching staff of the Government aided and unaided Institution. The said Rules provide that whenever the school authority proposes to remove or dismiss any permanent or temporary teacher or other employees, the school authority is required to 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 proposes to be proceeded against is ordinarily required to submit his explanation within a fortnight of the receipt of the charge-sheet. Thereafter the Committee is required to send to the Board all the relevant papers including the charge-sheet, explanation submitted by the teacher or the employee concerned and the reasons for which the Committee decides in favour of taking disciplinary action. The said provision also provides that if after considering the said materials, the Board forms any opinion that there are sufficient grounds for taking disciplinary action and approves the school’s proposal to proceed with the disciplinary proceeding against the charge-sheeted employee, then the Committee shall issue formal notice calling upon the teacher or the employee concerned to showcause ordinarily within a fortnight as to why he should not be dismissed or removed from service.

12. Thus, the second stage of disciplinary proceeding commences from this stage after school’s proposal is approved by the Board at the first stage. Thus, the Committee is required to send again all the relevant papers to the Board including the explanation submitted by the teacher or the employee concerned and the recommendation of the Committee for the action proposed to be taken. The decision which will be taken on the said recommendation of the Committee, shall be final. The school authority thereafter can impose suitable penalty upon the teacher and/or nonteaching staff by observing the procedure laid down in Sub-Rule 8.

13. The underlined portion of the preceding paragraph, in my view, is the decisive factor in the present case and as such emphasis will be given to the underlined portion of the preceding paragraph.

14. The said provision makes it clear that at the first stage of disciplinary proceeding, along with the charge-sheet and the explanation given by the teacher, the school authority is required to inform the Board the reasons for which the school authority decides in favour of taking disciplinary action against him. The said provision provides that before taking such decision, reasonable opportunity to defend should be given to the teacher. Thus, the modalities prescribed in the said provision at the first stage of the disciplinary proceeding shows that enquiry should be made by the school authority before seeking approval of the Board at the first stage. If the Board gives approval to the school’s proposal to proceed with the said disciplinary proceeding, then the second stage will commence. In the second stage, the Committee shall issue notice calling upon the teacher to show cause as to why he should not be dismissed or removed from service. If any reply is given to the said show cause by the teacher, the Managing Committee is required to consider the same, and will take the decision as to the action which the school authority proposes to take against the teacher. Thereafter the school authority is required to send all these papers to the Board for its decision and the decision of the Board, in this regard, will be final. Thus, the modalities prescribed in the second stage does not prescribe for holding another set of enquiry at the second stage. Only an opportunity is required to be given to the said teacher before taking any decision as to the action proposed to be taken by the Managing Committee against the said teacher. Thus, in the second stage the nature of punishment to be imposed upon the chargesheeted employee is the primary and principal consideration before the school authority as well as before the Board.

15. If the order passed on 16th September, 2010 in the earlier writ petition is considered in the light of the provision contained in Rule 28(8) of the said Rule, then this Court has no hesitation to hold that the six months time which was given to the school authority for concluding the enquiry should be reckoned from the date when the school authority took the decision to hold an inquiry against the petitioner.

16. In fact, on 10th October, 2010, the Managing Committee, recorded in its resolution that the school authority is not satisfied with the explanation given by the petitioner to the chargesheet and as such it was decided on that date that they will submit the relevant papers to the Board for its approval at the first stage for proceeding with the disciplinary proceeding against the petitioner, as per Rules.

17. Thus, this Court is of the view, that when the Managing Committee took a decision for seeking approval at the first stage from the Board, the six months’ time limit for concluding the enquiry should be reckoned from that date as without holding enquiry, the Committee cannot give the reasons for which the Committee decided to take disciplinary action against the petitioner.

18. As such, this Court holds that 10th September, 2010 was the starting point of limitation and as such the Managing Committee ought to have concluded the enquiry within 10th March, 2011.

19. This Court finds that the Managing Committee, in fact, has not taken any step to start the enquiry within the stipulated date. Enquiry officer and Presenting officer were appointed on 18th May, 2011, after the expiry of the stipulated period.

20. Thus, this Court has no hesitation to hold that the school authority has failed to complete the enquiry within the stipulated period and as a result the suspension order stood vacated on 11th March, 2011. Thus, the school authority, in my view, was not justified in refusing the petitioner to join his duties, when he intended to join in May 2011.

21. The school authority is, thus, directed to allow the petitioner to resume his duty immediately. However, the disciplinary proceeding may be proceeded with and be concluded as per the Rule 28(8) and (8a) of the Management Rules as early as possible. Since the petitioner is due to retire in November, 2011, the school authority is directed to conclude the disciplinary proceeding by the end of August, 2011. The Board is also directed to take the decision on the school’s proposal to impose penalty upon the petitioner as urgently as possibly so that the time limit for conclusion of the disciplinary proceeding against the petitioner, as mentioned above, is strictly maintained.

22. This writ petition is, thus, disposed of.

23. Urgent xerox certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible.