Amal Kumar Deyati vs The Chairman
2021 Latest Caselaw 6021 Cal

                     IN THE HIGH COURT AT CALCUTTA
                       Constitutional Writ Jurisdiction
                               Appellate Side

Present :-   Hon'ble Justice Amrita Sinha

                              WPA 5450 of 2021

                             Amal Kumar Deyati

                                      Vs.

      The Chairman, Howrah District Primary School Council & Ors.


For the writ petitioner        :-    Mr. Sadhan Kumar Halder, Adv.
                                     Mr. D. Pattanayak, Adv.

For the State                  :-    Mr. Bhaskar Prasad Vaisya, Adv.
                                     Mr. Sagnik Chatterjee, Adv.

For the Council                :-    Mr. Ratul Biswas, Adv.

Hearing concluded on           :-    29-11-2021

Judgment on                    :-    03-12-2021



Amrita Sinha, J.

The petitioner was serving as a head teacher of Sehagori Primary School.

He was arrested on 7th February, 2018 in connection with Joypur Police

Station case no. 21 of 2018 dated 7th February, 2018 under Sections 354/506

Indian Penal Code and S.10 of POSCO Act. The petitioner was enlarged on bail

on 29th March, 2018. Chargesheet has been submitted against the petitioner

and the criminal proceeding is continuing.

When the petitioner was in detention the Chairman, Howrah District

Primary School Council by an office memorandum dated 19th February, 2018

invoked the provision of Rule 7(2) of the notification no. 906-SE (Pry) dated 9th

July, 2001 and placed him under suspension with effect from the date of his

detention and ordered that he shall remain under suspension until further

orders. The office memorandum further mentions that during the period of

suspension the petitioner will be entitled to get the subsistence allowance as

per rules.

Learned advocate for the petitioner submits that the petitioner is due to

superannuate on 30th November, 2021.

The specific case of the petitioner is that as no disciplinary proceeding

has been initiated against him by his employer, he ought not to be kept under

suspension for an indefinite period.

Reliance has been placed on several orders passed by the court to the

effect that the period of suspension ought not to continue beyond a period of

ninety days.

The petitioner prays that the order of suspension is liable to be set aside

and the petitioner be allowed to resume his duties. A further prayer has been

made for payment of his dues.

In support of his submission the petitioner has relied upon the following

judgment:

1) Union of India -vs- Rajiv Kumar reported in (2003) 6 SCC 516

paragraph 29

2) Union of India & Ors. -vs- Dipak Mali reported in AIR 2010 SC

336 paragraphs 10 and 11

3) Ajay Kumar Choudhary -vs- Union of India & Anr. reported in

(2015) 7 SCC 291 paragraphs 20 and 21

4) Sri Abanindra Mohanty -vs- Union of India & Ors. reported in

(2010)4 WBLR (Cal) 366 paragraphs 12, 20-24

5) Soma Majumder -vs- State of West Bengal & Ors. reported in

(2011)3 WBLR (Cal) 185 paragraphs 16-18

6) Amit Biswas -vs- State of West Bengal & Ors. reported in 2007

LAB. I. C. 1295 paragraphs 24-26

Learned advocate for the respondents opposes the prayer of the

petitioner. It has been submitted that the allegations against the petitioner are

extremely grave and ugly. The criminal trial is pending. In the event the

petitioner is acquitted in the criminal case, necessary steps will be taken by the

respondent authorities in accordance with law.

The learned advocate for the Primary School Council relies upon the

judgment delivered by this court in the matter of Birbhum District Primary

School Council & Anr. -vs- Md. Mukhtar Hossain & Ors. reported in 2009(1)

CHN 476.

The respondents pray for dismissal of the writ petition.

I have heard and considered the submissions made on behalf of both the

parties.

FIR lodged against the petitioner, letter of complaint and the statement of

witnesses are annexed to the writ petition. The allegations which are made

therein are undoubtedly very serious and unpleasant. The petitioner being the

head teacher of the primary school allegedly committed sexual assault on a

minor girl of ten years. Be that as it may, as the criminal proceeding is sub-

judice no comment is being made with regard to the allegations made in the

complaint. It is for the appropriate court to decide the same.

What is to be decided in the instant case is whether the petitioner can be

kept under suspension on and from the date of his arrest i.e. from 7th

February, 2018 till date.

The petitioner was suspended in accordance with Rule 7(2) of the West

Bengal Primary Education (Conduct of Service of Teachers of Primary Schools)

Rules, 2001. Rule 7 of the aforesaid Rules deals with suspension. Rule 7(1)

lays down that:

7(1) Primary School Council may place a teacher under suspension - (a)

Where an inquiry under sub-rule 1 of Rule 9 of the Rules against him is

contemplated by the Primary School Council or such an inquiry is pending; or

(b) Where a case of any criminal offence involving moral turpitude against the

teacher is under investigation or trial.

Rule 7(2) lays down that:

Where a teacher is detained in custody for a period exceeding 48 hours

on a criminal charge or otherwise, he shall be deemed to have been suspended

by an order of the appointing authority with effect from the date of his

detention and shall remain under suspension until further orders. A teacher

who is undergoing a sentence of imprisonment shall also be dealt with in the

same manner, pending a decision as to the disciplinary action to be taken

against the teacher.

Rule 7(4) lays down that:

A teacher under suspension or deemed to have been suspended shall be

entitled to the following payments:-

(a) During the first three months of suspension, a monthly

subsistence allowance equal to the amount of pay which he would have drawn

if he had been on half-pay leave.

Provided that where the period of suspension exceeds three months, the

appointing authority shall be competent to increase the amount of subsistence

allowance for the remaining period of suspension by such amount, not

exceeding 50 per cent of the subsistence allowance admissible during the first

three months of suspension, if in the opinion of the appointing authority, the

period of suspension has been prolonged for reasons to be recorded in writing.

(b) Dearness and medical and other allowances admissible from time

to time on the basis of the subsistence allowance fixed by the competent

authority.

In the instant case the petitioner was arrested on 7th February, 2018 and

while he was in jail custody the order of suspension was issued in accordance

with Rule 7(2) (supra). After the petitioner was enlarged on bail, no further

order of suspension or otherwise was served upon him. He is getting his

subsistence allowance.

The petitioner asserts that the employer did not initiate disciplinary

proceeding against him. As the order of suspension continued for a prolonged

period accordingly prayer has been made for setting aside the same and for

permitting him to resume his duties.

Rule 7(2) though mentions about deemed suspension but at the same

time it specifically mentions that suspension will be given effect from the date

of detention until further orders. Admittedly in the instant case, apart from the

initial order of suspension, no further order has been issued by the employer.

The same implies that the petitioner is to remain under suspension until

further orders; i.e., till the order of suspension is either revoked, reviewed or

modified by the employer.

Rule 7(1) permits the Council to place a teacher under suspension where

a case of a criminal offence involving moral turpitude is under investigation or

trial. In the present case, criminal proceeding is admittedly pending against the

petitioner. Allegations against the petitioner are under the provisions of the

Indian Penal Code and POSCO Act.

Though no formal order under Rule 7(1) has been issued against the

petitioner can the order of suspension under Rule 7(2) continue till fresh or

formal order of suspension is issued under Rule 7(1)?

The Hon'ble Supreme Court in Rajiv Kumar (supra) was dealing with

suspension of an employee under the provisions of Central Civil Services

(Classification, Control and Appeal) Rules, 1965. The expression 'until further

orders' fell for consideration before the court. The court was considering as to

whether the order of suspension would be effective for the period of detention

alone. The court categorically held that the order of suspension does not lose

its efficacy and is not automatically terminated the moment detention came to

an end and the person is set at large.

The court also took into consideration the plea raised relating to

suspension for a very long period. The court was of the opinion that the order

of suspension does not become invalid merely because it is for a long period.

In Dipak Mali (supra) the Supreme Court was of the opinion that by

operation of sub-rule 6 of Rule 10 of the Central Civil Services (CCA) Rules,

1965, the order of suspension would not survive after the period of ninety days

unless it was extended after review.

In the instant case there is no provision in the service rules of the

petitioner requiring extension of the period of suspension after ninety days. On

the contrary, the service rule of the petitioner provides for placing a teacher

under suspension from the date of detention until further orders. Accordingly,

the decision in the case of Dipak Mali also does not come to the aid of the

petitioner.

In Ajay Kumar Choudhury the court directed that the suspension order

should not extend beyond three months if within this period the memorandum

of charges/chargesheet is not served on the delinquent officer/employee. If the

memorandum of charges/chargesheet is not served, a reasoned order must be

passed for extension of suspension.

In the instant case chargesheet has been filed against the petitioner and

the criminal proceeding is pending. Accordingly, the said decision also does not

help the petitioner.

In Abanindra Mohanty (supra) the court was considering the provisions

of Rule 10 Central Civil Services (CCA) Rules, 1965. The court relied upon the

decision delivered in the matter of Rajiv Kumar (supra) and decided the issue.

As has been recorded that the service conditions of the petitioner being

different to the service conditions under the Central Civil Services (CCA) Rules,

1965 accordingly the said decision does not help the petitioner.

In Amit Biswas (supra) the court was dealing with an employee charged

under offences under Section 498A of the Indian Penal Code and held that as

the offence has nothing to do with employment of the employee accordingly the

employer is under obligation to see whether there are exceptional reasons for

keeping the employee under suspension. The court was considering the

provisions of West Bengal Service (Classification, Control and Appeal), Rules,

1971. In the instant case the allegation relates to sexual offence by the head

teacher on a minor female student. The criminal case is sub-judice and the

petitioner has been chargesheeted. It cannot be said that the offence is not

concerned with the employment of the petitioner. Accordingly, the aforesaid

decision does not help the petitioner.

In Soma Majumder (supra) the court dealt with the provisions of Rules 7

and 9 of West Bengal Primary Education (Conduct of Service of Teachers of

Primary Schools) Rules, 2001 and was of the opinion that the allegation made

against the petitioner relates to a period prior to her joining service and

accordingly the 2001 Rules will not be applicable in the facts of the said case.

The facts of the case at hand are completely different from the facts of the case

under reference. The ratio laid down in the case of Soma Majumder (supra)

accordingly cannot be made applicable in the instant case.

In the matter of Md. Mukhtar Hossain (supra) the court held that merely

because a suspension that commenced under the legal fiction in Rule 7(2) of

the 2001 Rules continues for a long period would not invalidate the suspension

or lead to any conclusion that the duration of the suspension stipulated in that

Rule is till the release of the primary teacher following the detention. The court

further held that the plain words of sub-rule 7(2) of the 2001 Rules can only be

understood to continue the suspension that began by virtue of the deeming

provision till a further order in that regard is made. To infer that the sub-rule

discontinues the suspension on cessation of detention would be to plant words

therein and imply casus omissus when there is no case of strong necessity to

presume the inadvertence in the drafting of the sub-rule.

In the present case the petitioner was deemed to have been placed under

suspension on the date of his arrest and no further order being passed by the

appointing authority implies that the order of suspension u/s. 7(2) is still valid

and does not lose its force. No further order of suspension is required to be

issued u/s. 7(1) of the Rules.

However, as it appears that the criminal trial is still under progress and

in the meantime the petitioner reached superannuation, accordingly no fruitful

purpose will be served by passing an order of review/revocation/modification of

the order of suspension.

The writ petition fails and is hereby dismissed.

Urgent certified photo copy of this judgment, if applied for, be supplied to

the parties expeditiously on compliance of usual legal formalities.

(Amrita Sinha, J.)