Asha Gupta vs The State Of West Bengal & Ors
2021 Latest Caselaw 4523 Cal

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                  IN THE HIGH COURT AT CALCUTTA
                       Constitutional Writ Jurisdiction
                                   Appellate Side



  Present:
  The Hon'ble Justice Abjijit Gangopadhyay


                            WPA 11387 of 2021

                                 Asha Gupta
                                   -Versus-
                       The State of West Bengal & Ors.



  For the petitioner               :   Mr. Animesh Paul
                                       Ms. Fatima Hassan


  For the State                    :   Ms. Chama Mookherji
                                       Mr. Parikshit Goswami


  Heard on                         :   10.08.2021 & 07.09.2021

  Judgment on                      :   07.09.2021


  Abhijit Gangopadhyay, J.:


1. The petitioner's allegation is that her service as a teacher has been

  terminated by the school without issuing any show cause notice to her and

  without conducting any disciplinary proceeding. However, in a letter of the

  school, which is the reply to the letter of the learned advocate for the

  petitioner, the school has mentioned several allegations as to the

  performance of the petitioner.
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2. The teacher was a contractual teacher and working in the school since 2010

  i.e. last 11 years. It has been submitted before me on behalf of the petitioner

  that during this 11 years no allegation was made against her by the school

  authority. The school authority has terminated her service without following

  the principles of natural justice. The school authority in the reply given to

  the learned advocate for the petitioner (referred above) has written, inter

  alia, "since she was not physically present or desired to do so, her

  termination letter could not be handed over to her. This is why she was

  asked to submit her resignation so that her dues could be settled."

  This court is surprised by the emperor like dictatorial attitude of the school.

3. Perhaps the school authority thinks that they are running a barony in the

  form of a school in the education system and they are not required to follow

  the fundamentals of law before terminating a teacher or any other staff.

4. I am told that the school is a DA getting school. Which means the State

  Government pays the money for giving DA to the employees of the school. As

  the school enjoys public money in the form of DA it cannot say that such

  controversy is a matter outside the public law domain. Further, the

  respondents concerned (respondent no.7, 8 and 9) are imparting education

which is a public duty and therefore the said respondents' any action

relating to such public duty comes within the spread of Article 226 of the

Constitution of India. Thus the respondents are amenable to writ

jurisdiction.

5. The school should keep in mind that contractual teachers are after all

teachers having respect in the society and they are not serfs under the

barony of the school.

6. Despite service nobody has appeared for the school before me today. No

accommodation in any form has also been prayed for on behalf of the

school.

7. Learned advocate of the petitioner has relied upon one judgment reported in

(2020) 14 SCC 449 (Marwari Balika Vidyalaya -versus- Asha Srivastava

& Ors.) and has emphasized paragraphs 15 and 16 thereof. In this

judgment it has been quoted with approval an observation of Professor de

Smith which is as follows:

"To be enforceable by mandamus a public duty does not

necessarily have to be one imposed by statute. It may be

sufficient for the duty to have been imposed by charter,

common law, custom or even contract".

8. I hold that the termination of service of any staff of a school, teaching or

non-teaching whether contractual or permanent or otherwise cannot be

made without following the principles of natural justice as no employee

today works like serfs which was practiced in a feudal system, who can be

terminated by a simple one-liner without disclosing any reason.

One line termination order, oral or written, may be possible when an

individual works under an individual. But when an individual works under

an authority or an organization or an institution or a body of persons etc.

one-line termination cannot be allowed as in a non-feudal democratic

society like ours a standard of fairness must be followed by the

organizations, institutions etc.

When an individual is engaged by an individual for work under the

appointing individual, his continuation or termination of service depends

upon a large number of interpersonal factors like personal likings and

dislikings, psychological mindset of the two and innumerable other factors.

In such a case both the individuals represent themselves. But when it is a

relationship between an individual and an organisation or institution etc.

such personal liking and disliking and psychological mindset etc. can never

come into play in the relationship between the two. In fact an organisation

or an institution etc. is a faceless entity which works through a collective

mind. Decision of termination in such cases are taken by the collective

mind; and such decisions are only possible when some allegation are made,

view of the individual (against whom the allegations are made) as to the

allegations are taken and the decision of termination etc. reaches to the

decision making level through different echelons. Therefore, what is possible

in a relationship between two individuals is neither possible nor can be

allowed when the relationship of an individual is with a faceless entity which

woks through a collective mind like an authority or an institution or body of

persons etc.

9. Ms. Mookherji, learned advocate for the State has submitted that she has

specific instruction that the teacher is an unapproved assistant teacher.

What difference does it make on the question of approved or unapproved

service in the present controversy, I fail to understand.

10. I think that by saying this Ms. Mookherji does not mean that the teachers of

a school can be thrown out of a service at any point of time without

following the principles of natural justice.

11. As the school is not present despite service, I hold that school has nothing

to say in this matter before this court.

12. I set aside the termination order of the school issued to the petitioner which

will come into effect forthwith. Failure to observe the principles of natural

justice has completely vitiated the termination of service of the petitioner.

This court directs that the petitioner will act as a teacher of the school as

she was acting in the last 11 years or so. If there is any allegation against

the teacher, without holding disciplinary proceeding and without following

the principles of natural justice, no step against the teacher/petitioner can

be taken by the school authority. From the day she was terminated she will

get her full salary and other financial and other benefits, if any, as was

being received by her from the school. This payment should be made by 4

weeks from the date of service of a copy of this judgment and order upon the

school. The school is directed to comply accordingly.

13. As there is no charge which has been established against the writ petitioner

by the school, the school is directed to renew the contract as was being done

for last 11 years or so.

14. With the above directions, I allow the writ application.

No costs.

(Abjijit Gangopadhyay, J.)