Manas Halder vs State Of West Bengal & Ors
2022 Latest Caselaw 730 Cal

22.02.2022
Mithun
List - D/L
Sl. No. 21
Ct. No. 04.
                                 IA No: CAN/1/2022
                                          in
                                    MAT/58/2022


                                   Manas Halder
                                       -Vs.-
                            State of West Bengal & Ors.


              Mr. Gourav Das, Adv. Led by Mr. B.P.Vaisya.

                                            ...for respondent Nos.3 & 4..

Mr. Chaitali Bhattacharya, Adv.

Mr. Kartik Chandra Kapas, Adv.

...for the State.

Admittedly the petitioner/appellant was arrested

in connection with the Diamond Harbour Police Station

Case No.398 of 2018 under Sections 498A and 306 of

the Indian Penal Code and Sections 3 and 4 of the

Dowry Prohibition Act on 14.09.2018 and later on

released on bail on 11th October, 2018. Rule 7 of the

West Bengal Primary Education (Conduct of Service of

Teachers of Primary Schools) Rules, 2001 provides for a

deemed suspension in the event a teacher detained in

custody for a period of exceeding of 48 hours on a

criminal charge or otherwise.

It would be relevant to quote Rule 7 which runs

thus:-

Suspension.-(1) A primary School Council may

place a teacher under suspension-

(a) where an inquiry under sub-rule (1) of rule

9 of these 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.

(2) Where a teacher is detained in custody for a

period of 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.

(3) Every order of suspension under sub-rule (1)

shall be communicated to the Director of School

Education, Government of West Bengal, and the Board.

(4) 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

fifty percent 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, medical and other allowances,

admissible from time to time on the basis of

the subsistence allowance fixed by the

competent authority.

(5) No payment under sub-rule (4) shall be made

unless the teacher furnishes a certificate to the effect

that he is not engaged in any other employment,

business, profession or vocation."

It is apparent from the aforesaid provision

contained in the above quoted Rule that a teacher shall

be deemed to have been suspended by an order of the

appointing authority with effect from the date of his

detention under the criminal charge or otherwise until

further orders. The writ petition was taken out not only

challenging the order of deemed suspension but for

further direction upon the authorities to consider

whether the order of deemed suspension is liable to

continue eternally.

The Single Bench dismissed the writ petition with

categorical finding that the post of the teacher carries

not only high reputation but impeccable character. The

teacher who has been detained on criminal charges may

not carry the same amount of repute and the prestige in

the eye of the students and therefore may not be

conducive for the development of the students of the

said school. The observations of the Single Bench were

more concentrated on the development and the

impression to be carried by the students studying in the

said school than on a proposition of law applicable in this

regard. Almost in all the service related Rules, the

provision pertaining to deemed suspension are

incorporated with the identical languages with minor

difference from here and there. The learned Advocate

for the appellant emphasizes on the provision of Rule 7

of the aforesaid Rules to contend that even in case of a

deemed suspension, the authority must issue a notice of

suspension which is conspicuously absent in the instant

case. The aforesaid point is not tenable in view of the

judgment of Birbhum District Primary School

Council & Anr. vs. Md. Mokhtar Hossain & Ors.

reported in (2009)1 CHN 476. The identical issue was

raised and it has been held that the language imported

in the aforesaid Rule does not warrant any further order

to be issued by the appointing authority because of the

legal fiction of the provision in the following :-

"17. The substance of the relevant provision in

the Rajiv Kumar case is akin, if not identical, to Rule

7(2) of the 2001 Rules. The suspension that comes into

effect by the legal fiction of the deeming provision under

such sub-rule continues unabated till a further order in

that regard is made. That further order is an order to be

made by the appointing authority and not any order that

may be passed in connection with the criminal

proceedings or the order of detention. The appointing

authority may choose not to issue any further order,

which would imply that the order of suspension would

continue, or the appointing authority may modify the

order of suspension; or altogether revoke the same.

The appointing authority can take any of the three

courses of action and the rule recognises the same. The

inaction or action on the part of the appointing authority

may, however, fall for scrutiny or judicial review."

However, the question which further arises in the

instant matter because of the expression "until further

order" used in the aforesaid Rule implies the deemed

suspension not to continue for all time to come. The

Division Bench in the above noted decision took note of

the earlier decision of the Hon'ble Supreme Court

rendered in the case of Union of India vs. Rajiv

Kumar reported in AIR 2003 SC 2917 wherein it is

said that the authorities should not construe the

aforesaid provision being perennial in nature as it would

destroy the very concept of the deemed suspension and

of the expression "until further order". It is further held

that the provision relating to deemed suspension creates

a legal fiction for only issue of any specific order of

suspension but the expression "until further order"

should not be construed in the sense that the authorities

would not take any further decision and permit the

deemed suspension to continue until disposal of the

criminal proceeding. It would relevant to quote of

Paragraphs 13 and 14 which runs as follows:-

13. In the judgment reported at AIR 2003 SC

2917 (Union of India v. Rajiv Kumar), the Supreme

Court construed Rule 10 of the Central Civil Services

(Classification, Control and Appeal) Rules, 1965. Clause

(b) of sub-rule (2) of Rule 10 of such Rules provides

that a Government servant "shall be deemed to have

been placed under suspension by an order of appointing

authority with effect from the date of his detention, if he

is detained in custody, whether on a criminal charge or

otherwise, for a period exceeding forty-eight hours..."

Sub-rule (5) (a) stipulates that an order of suspension

"made or deemed to have been made under this Rule

shall continue to remain in force until it is modified or

revoked by the authority competent to do so." In the

light of such provisions, the Supreme Court held as

follows at paragraphs 14 and 15 of the report;

"14. Rule 10(2) is a deemed provision and creates

a legal fiction. A bare reading of the provision shows

that an actual order is not required to be passed. That

is deemed to have been passed by operation of the legal

fiction. It has as much efficacy, force and operation as

an order otherwise specifically passed under other

provisions. It does not speak of any period of its

effectiveness. Rules 10(3) and 10(4) operate

conceptually in different situations and need specific

provisions separately on account of interposition of an

order of a Court of Law or an order passed by the

appellate or reviewing authority and the natural

consequences inevitably flowing from such orders. Great

emphasis is laid on the expression "until further orders"

in the said sub-rules to emphasise that such a

prescription is missing in sub-rule (2). Therefore, it is

urged that the order is effective for the period of

detention alone. The plea is clearly without any

substance because of sub-rules 5(a) and 5(c) of Rule

10. The said provisions refer to an order of suspension

made or deemed to have been made. Obviously, the

only order which is even initially deemed to have been

made under Rule 10 is one contemplated under sub-rule

(2). The said provision Under Rule 10(5) (a) makes it

crystal clear that the order continues to remain in force

until it is modified or revoked by an authority competent

to do so while Rule 10 (5)(c) empowers the competent

authority to modify or revoke also. No exception is

made relating to an order under Rules 10(2) and 16(5)

(a). On the contrary, it specifically encompasses an

order under Rule 10(2). If the order deemed to have

been made Under Rule 10(2) is to lose effectiveness

automatically after the period of detention envisaged

comes to an end, there would be no scope for the same

being modified as contended by the respondents and

there was no need to make such provisions as are

engrafted in Rules 10(5)(a) and (c) and instead an

equally deeming provision to bring an end to the

duration of the deemed order would by itself suffice for

the purpose.

15. Thus, it is clear that the order of suspension

does not loose its efficacy and is not automatically

terminated the moment the detention comes to an end

and the person is set at large. It could be modified and

revoked by another order as envisaged Under Rule

10(5)(c) and until that order is made, the same

continues by the operation of Rule 10(5)(a) and the

employee has no right to be reinstated in service. This

position was also highlighted in the Balbantrai Ratilal

Patel v. State of Maharashtra, AIR 1968 SC 800.

Indication of the expression "pending further order" in

the order of suspension was the basis for the aforesaid

view."

14. The Supreme Court applied the usual principles of

construction to consider the meaning of the relevant

provision and concluded at paragraph 26 of the report

as follows:

"26. The inevitable conclusion therefore is that the

order in terms of Rule 10(2) is not restricted in its point

of duration or efficacy to the period of actual detention

only. It continues to be operative unless modified or

revoked under sub-rule (5)( c), as provided under sub-

rule (5)(a)."

[ It is axiomatic to record that though the order of

suspension shall be deemed to take effect from the date

of the detention of the teacher but the expression "until

further order" implies the authorities to review or

evaluate the same to arrive at the decision whether such

order of suspension is liable to continue or to be

modified. Such observation can be visualised from the

observations of the said Division Bench made in

Paragraph 28 thereof which reads thus:-

28. There can be no guidelines laid down in a

strait-jacket as to how an appointing authority should

deal with the suspension of a primary teacher where the

suspension commenced by virtue of the deeming

provision in Rule 7(2) of the 2001 Rules. The conduct of

the appointing authority would be justiciable and open

to question in proceedings under Article 226 of the

Constitution. It could well be that in a given case the

prolonged suspension on account of sheer inaction on

the part of the appointing authority may be unjustified.

The period of suspension should ordinarily not be

unnecessarily prolonged but it could also be that

plausible reasons exist for the prolonged suspension and

the appointing authority may be able to justify its

opinion that the suspension needs to be continued.

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 fact that

the provision is prone to misuse will not have a telling

impact on the purport of the provision or in the matter

of construction thereof."

In view of the law expounded by the Division

Bench in the case of Birbhum District Primary School

Council, the order of the Single Judge cannot be

sustained and is hereby set aside. The appellant is

directed to make a representation before the

appropriate authority for reconsideration and or

revisitation on the continuance of the deemed

suspension within 2 weeks from date. If such

application is made within the time indicated

hereinabove, the concerned authority shall decide the

same within 3 weeks therefrom and communicate the

decision to the appellant within fortnight thereafter.

(Harish Tandon, J.)

(Rabindranath Samanta, J)