Calcutta High Court (Appellete Side)
Premansu Sekhar Palai vs The State Of West Bengal & Ors on 8 February, 2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
WPA No.17135 of 2011
Premansu Sekhar Palai
....Petitioner
-Vs-
The State of West Bengal & Ors.
..... Respondents
_______
Mr. Anjan Bhattacharya, Adv.
Mr. Sanjay Patra, Adv.
Ms. Anita Shaw,Adv.
..... for the Petitioner
Mr. Supriyo Chattopadhyay,Adv.
Mr. Sabyasachi Mondal,Adv.
..... for the State Respondents
Heard On : 18.01.2023
Judgment on : 08.02.2023
Rabindranath Samanta, J:-
1. Challenge in this writ petition is against the order of termination of
engagement of the petitioner as a Para Teacher of a primary school
namely Kasba Tilottama Primary School, Purba Medinipur issued by
the Secretary of 123 Kasba Village Education Committee and the
order dated 17.04.2008 passed by the District Magistrate, Purba
Medinipur concurring the order of termination issued by the Secretary
of the said Village Education Committee.
Page 1 of 10
2. Background
facts which led to the filing of the writ petition may be
adumbrated as under:
The petitioner passed Madhyamik examination in the year 1989.
The Village Education Committee, in terms of a Memorandum dated
16.07.2004 issued by the District Project Officer, invited applications
from the eligible candidates for engagement of a Para Teacher in
Kasba Tilottama Primary School. In response thereto the petitioner
made an application before the School authority seeking engagement
as a Para Teacher of the school. By a letter dated 02.08.2007 issued
by the Secretary, 123 Kasba Village Education Committee the
petitioner was engaged as a Para Teacher in the aforesaid Primary
School and he joined the school on 3rd August, 2007. As to
engagement of Para Teacher in the school an agreement was entered
into between the Secretary of 123 Kasba Village Education Committee
and the petitioner. The tenure of the engagement was for one year at
the fixed remuneration of Rs.1500 per month without any allowance.
It is spelt in the agreement that the engagement of the petitioner is
terminable with 1 (one) month's notice on either side and before
completion of the contractual period of one year if his performance
was not satisfactory. The petitioner alleges that a few days after he
joined the said school, the Secretary of 123 Kasba Village Education
Committee arbitrarily terminated his engagement as a Para Teacher
without assigning any reason and without giving any opportunity of
hearing to him. After his engagement was terminated, the petitioner
made a representation to the authority concerned on 13.09.2007
alleging the arbitrary act of the Secretary in terminating his
engagement illegally and arbitrarily. But, the concerned respondent
authority turned deaf ear to his appeal. It may be noted that on 14th
September, 2007 the local villagers, students and guardians made a
mass petition to the concerned authorities for taking steps against the
illegal and arbitrary action taken by the Head Master-cum-Secretary
of 123 Kasba Village Education Committee terminating the
engagement of the petitioner as a Para Teacher.
3. Getting no redressal of his grievances, the petitioner filed a writ
petition being WP No. 22911 (W) of 2007 in this Court. By order dated
13.02.2008 a learned Single Bench disposed of the writ petition
directing the District Magistrate, Purba Medinipur to dispose of the
matter regarding termination and/or re-engagement of the petitioner
by passing a reasoned order within a fortnight from the date of
communication of the order after giving opportunity of hearing to the
petitioner and the concerned respondents. In compliance of this order
the District Magistrate disposed of the matter by an order dated
17.04.2008 wherein the District Magistrate though observed that the
termination of the engagement was made without serving one month's
notice, but, since one month's notice was not given before termination
of the engagement the petitioner was entitled to one month's
honorarium. On such observation the District Magistrate directed that
one month's honorarium be given to the petitioner.
4. By preferring this writ petition the petitioner challenges both the order
of termination of his engagement by the Secretary, 123 Kasba Village
Education committee as well as the order passed by the District
Magistrate on the grounds that the Secretary of the Village Education
Committee inflicted the order of termination of engagement without
giving one month's notice to him which was mandatory in nature and
the District Magistrate in his order impugned also overlooked this
aspect of the matter. In such premises, the petitioner prays for
quashing of the order of termination of his engagement by the Village
Education Committee and the order passed by the District Magistrate
and direction upon the concerned respondents to reinstate the
petitioner as a Para Teacher in the said school.
5. The respondent No.3, the District Project Officer, Sarva Shiksha
Mission, Purba Medinipur in his affidavit-in-opposition defending the
order passed by the District Magistrate and denying the
averments/allegations as made in the writ petition submits that the
writ petition is liable to be dismissed.
6. It is evident from an engagement letter dated 02.08.2007 issued by
the Secretary, 123, Kasba Village Education Committee that the
petitioner was engaged as an Additional Para Teacher in the primary
school namely Kasba Tilottama Primary School, Purba Medinipur.
Admittedly, the petitioner joined as Additional Para Teacher in the
school on 3rd August, 2007. An agreement entered into between the
Secretary of the said Village Education Committee and the petitioner,
inter alia, reads as under:
i) The Job assigned will be purely temporary and on contractual
basis for 1 (one) year with effect from the date of joining
provided his service in the institution is found satisfactory
throughout his period of 1(one) year on a fixed remuneration of
Rs.1500 (Rupees One Thousand and Five Hundred Only) per
month without any allowances. His services will automatically
be terminated on expiry of the period of 1(one) year or earlier as
per this contract, if his performance in the school is not found
satisfactory and/or violation of conditions below:
ii) He should carry out his duties in the primary school as allotted
to him.
iii) During the vacation period also the said teacher will get the
consolidated remuneration as stated above.
iv) He will not claim for an appointment on regular basis on expiry
of his term nor will claim any other benefit financial or
otherwise from the school or the concerned District Project
Officer or any other body or authority.
v) His engagement is terminable with 1(one) month's notice on
either side and before completion of the contractual period of
1(one) year if his performance is not satisfactory."
7. As stated above, the Secretary, 123 Kasba Village Education
Committee by issuing a letter dated 11.09.2007 terminated the
engagement of the petitioner. The letter in Bengali which is annexed
to the writ application may be reproduced as under in english version:
"Respected Sir,
You are informed that from today your engagement as a
Para Teacher in Tilottama Primary School stands cancelled. As
per the decision of Village Education Committee taken in urgent
meeting on 07.09.2007, you need not come to school. This order
will come into force with effect from 12.09.2007.
11.09.2007
Yours faithfully,
Secretary, Sri Asim Bi Das,
Head Teacher and
Secretary, 123 Kasba,
Village Education
Committee"
8. Learned Counsel appearing for the petitioner by referring to condition
5 of the agreement and the letter dated 11.09.2007 issued by the
Secretary of the said Village Education Committee submits that the
letter or order of termination issued by the Secretary of the committee
is arbitrary in nature since it violates the mandatory condition as
embodied in the agreement. Learned Counsel submits that no reason
has been assigned in the letter or order of termination nor the letter
speaks of giving any opportunity of hearing to the petitioner before
terminating his engagement. Learned Counsel submits that apart
from contractual right the petitioner possessed, the petitioner was
entitled to get opportunity of hearing conforming to the principles of
natural justice. Learned Counsel vehemently argues that since the
livelihood of the petitioner was integrally associated with his
engagement, such engagement cannot be put to an end whimsically
and arbitrarily either by the Village Education Committee or by the
District Magistrate.
9. Learned Counsel appearing for the State respondents submits that
the Village Education Committee possessed the authority to terminate
the engagement of a Para Teacher. By such authority the Village
Education Committee terminated the engagement of the peitioner.
Pointing to the observations made by the District Magistrate in his
order learned counsel submits that since complaint of assault was
made against the petitioner, the District Magistrate was justified in
affirming the order of termination of engagement by granting one
month's honorarium to the petitioner in lieu of one month's notice.
10. As I find, the District Magistrate in the impugned order dated
17.04.2008 on consideration of the enquiry report submitted by the
District Project Officer has observed that the petitioner Premanshu
Sekhar Palai was involved in an incident of assault on the head
Master of the school and because of this the law and order situation
in the whole Gram Sansad became very bad immediately after
engagement of the petitioner as a Para Teacher. Over such incident
two schools at the locality were closed by the angry citizens. However,
the Village Committee should have given one month's notice before
termination of engagement of Premanshu Sekhar Palai as Para
Teacher. Since one month's notice was not given before termination
Sri Palai was entitled to one month's honorarium. On such
observation the District Magistrate directed that one month's
honorarium be given to the petitioner.
11. Now, the question which begs consideration is whether the order of
termination of engagement of the petitioner as Para Teacher by the
Secretary of Village Education Committee and concurred by the
District Magistrate is legally tenable without serving one month's
notice upon the petitioner or without giving him any opportunity of
hearing ?
12. It is not in dispute that engagement of a candidate as a Para
Teacher or Additional Para Teacher in a primary school at the relevant
point of time was guided by the conditions of the agreement entered
into between the candidate and the village education committee.
13. As quoted above, the relevant condition governing the termination
of engagement is to this effect that the engagement is terminable with
1(one) month's notice on either side and before completion of the
contractual period of 1(one) year if his performance is not satisfactory.
14. The letter or order of termination issued by the Secretary of 123
Kasba Village Education Committee does not speak of any reason on
terminating the engagement of the petitioner. Neither in the letter of
termination nor in the order of the District Magistrate there is any
observation as to dissatisfaction of the authority concerned with the
performance of the petitioner who joined as an Additional Para
Teacher on 3rd August, 2007. It is faintly recorded by the District
Magistrate in his order that there was complaint of assault against
the petitioner. Perusal of the order does not show what is the nature
of the offence alleged to have been made against the petitioner and
the number of the criminal case. It is not reflected in the order
whether the offence as alleged involved any moral turpitude of the
petitioner. Be that as it may, all such faint allegations, if any made, all
were before the engagement of the petitioner as a Para Teacher. But
the contractual conditions as embodied in the agreement say that
satisfaction of performance of the petitioner as a Para Teacher will be
assessed after his joining the job. In this regard there is no whisper of
any allegation either by the Village Education Committee or by the
District Magistrate.
15. What I think, the condition of giving one month's notice prior to
termination of engagement as stipulated in the agreement is
mandatory in nature. Admittedly, the Village Education Committee
while terminating the engagement of the petitioner grossly violated
this mandatory condition.
16. As pointed out by the learned counsel for the petitioner, livelihood
of the petitioner was integrally associated with his engagement as a
Para Teacher. That being so, the Village Education Committee cannot
arbitrarily terminate the engagement of the petitioner without
resorting to the principles of natural justice or due process of law. The
action on the part of the Village Education Committee is arbitrary and
capricious and thereby such action infringes the golden doctrine of
reasonableness as enshrined in Article 14 of the Constitution of India.
To speak in other words, by taking away the livelihood of the
petitioner on terminating his engagement without following either by
the contractual procedure or the principles of natural justice the
Village Education Committee has also violated the fundamental right
of the petitioner under Article 21 of the Constitution. While the letter
or order of termination of the Village Education Committee is vitiated
with gross illegalities, the order of the District Magistrate concurring
such order of termination of the Village Committee is also illegal.
17. In view of the above, the question as posed is answered in the
negative.
18. It is not in dispute that the petitioner is out of engagement as a
Para Teacher or Additional Para Teacher in the said Primary School
since 12.09.2007. Meanwhile, the law relating to engagement of Para
Teacher has undergone a sea-change. In terms of Government order
dated 16.11.2010 issued by the School Education Department,
Government of West Bengal the District Project Officer, Sarva Shiksha
Mission is now the authority to engage a Para Teacher on the basis of
the recommendation of the District Committee consisting of such
members as stated in the Government order. Besides, this
Government Order enjoins that the Para Teachers who were engaged
on contractual basis will continue to remain so engaged under
contractual basis till attainment of the age of 60 years and after being
discharged on attainment of 60 years of age the Para Teachers will be
paid a lump sum amount of Rs.1,00,000/- only as one time payment
as token of their service rendered in connection with education of
primary and upper primary stages for at least a period of 10 (ten)
years.
19. Since the petitioner was terminated from engagement as a Para
Teacher illegally and arbitrarily, the aforesaid letter or order of
termination by the Village Committee and the order of the District
Magistrate affirming such order are liable to be quashed and the
petitioner should be reinstated as a Para Teacher or Additional Para
Teacher in Tilottama Primary School.
20. In view of the above, the writ petition is allowed on contest.
21. The letter or order of termination of engagement of the petitioner
made by the Secretary, 123, Kasba Village Education Committee on
11.09.2007 and the order dated 17.04.2008 of the District Magistrate
affirming the letter or order of termination of the Village Education
Committee are hereby set aside.
22. The respondent No. 3, the District Project Officer, Sarva Shiksha
Mission, Purba Medinipur is directed to reinstate the petitioner as a
Para Teacher or Additional Para Teacher of Tilottama Primary School
within fifteen days from date. The petitioner shall be entitled to get
honorarium or remuneration and other service benefits as admissible
to a Para Teacher from the date of his re-instatement. But, it is made
clear that he shall not be allowed to claim any arrear honorarium for
the period during which he was out of engagement as a Para Teacher
or Additional Para Teacher. However, for the purpose of extending
terminal benefits to the petitioner after his discharge on attainment of
60 years of age his engagement will be counted from the date of his
first engagement on 3rd August, 2007.
23. If any law and order problem occurs due to re-instatement of the
petitioner as a Para Teacher, the concerned police authority shall
render all sort of police assistance to the school authority so that the
petitioner can discharge his duties properly.
24. With the aforesaid direction the writ petition stands disposed of.
Connected application, if any, also stands disposed of.
25. No order as to costs.
26. The parties may act on Server Copy of this judgment and order
duly downloaded from the Official Website of this High Court.
27. Urgent certified/website copy of this judgment, if applied for, be
given to the parties upon compliance with all requisite formalities.
(Rabindranath Samanta,J.)
