Calcutta High Court (Appellete Side)
Transcriber: Nandy Gadadhar ... vs The State Of West Bengal & Ors on 28 March, 2022
28.03.2022 FMA 317 of 2022
with
Court : 04 CAN 1 of 2022
Item : PB-02
Matter : FMA
Status : ADJOURNED
Transcriber: nandy Gadadhar Kundu
Vs.
The State of West Bengal & Ors.
Mr. Anindya Boe, Advocate
Mr. Diptendu Mondal, Advocate
......for the Appellant
Mr. Ranjan Saha, Advocate
......for the Respondent/State
Admittedly the appellant/petitioner was arrested
in connection with Goaltor Police Station Case No.
101 of 2020 registered on October 12, 2020 under
Section 498A/323/307/406 of the Indian Penal Code
read with Sections 3/4 of the Dowry Prohibition Act
on the very date of the registration of FIR and was
later on released on bail by an order dated October
20, 2020 passed by the learned Sessions Judge,
Paschim Medinipur in Miscellaneous Case No. 3383
of 2020. 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.
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.
Every order of suspension under sub-rule (1)
shall be communicated to the Director of School
Education, Government of West Bengal, and the
Board.
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.
(b) 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.
(c) Dearness, medical and other allowances,
admissible from time to time on the basis
of the subsistence allowance fixed by the
competent authority.
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."
The Supreme Court applied the general
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.
With these observations, the appeal being FMA
317 of 2022 and the connected application being
CAN 1 of 2022 are disposed of.
(Harish Tandon, J.)
(Rabindranath Samanta, J.)
