Sri Shyam Salone Upadhyay vs The State Of West Bengal & Ors
2023 Latest Caselaw 4306 Cal

19.07.2023
 SL No.13
Court No.8
    (gc)


                         MAT 1576 of 2022
                          CAN 1 of 2022

                 Sri Shyam Salone Upadhyay
                              Vs.
                The State of West Bengal & Ors.

                   Mr. Malay Bhattacharyya,
                   Mr. Subhrajyoti Ghosh,
                                                  ...for the Appellant.
                   Mr. Dibyendu Chatterjee,
                   Mr. Pritam Majumdar,
                   Mr. Rahul Deb Goenka,
                                   ...for the Respondent/School.

Mrs. Koyeli Bhattacharyya, ...for the W.B.B.S.E.

Mr. Avishek Prasad, ...for the State.

By consent of the parties, the appeal and the

application are taken up together and disposed of by

this common order.

The appellant although won before the

learned Single Judge is aggrieved by denial of back

wages upon reinstatement and an observation that

the school authorities may take steps as may be

advised having regard to the fact that the

Management Rules of Aided and Unaided School,

1969 which was applicable to the appellant at the

relevant point of time has undergone a change with

effect from 18th March, 2018, that is to say, after the

show cause notice was issued followed by an order

of suspension and in terms whereof a disciplinary

proceeding was initiated. It appears that the school

authorities initiated a disciplinary proceeding and

imposed punishment without obtaining prior

approval of the Court. Plainly, the initiation was

unauthorized and improper. Prior approval was

sine qua non.

The learned Single Judge rightly has not

considered the matters on merits and the quality of

the punishment imposed and set aside the order

only on the ground that it was initiated without

approval of the Board.

In the aforesaid background, the learned

Single Judge directed the school authorities to pay

on an ad hoc basis five months of his last drawn

salary. It is not in dispute that the present

appellant has been paid the last drawn monthly

salary for five months on an ad hoc basis in terms of

the order dated 7th February, 2023 and he reported

on 8th February, 2023 and had resumed duty as an

assistant teacher.

We have been informed lately a fresh show

cause notice followed by an order of suspension has

been issued against the teacher concerned.

However, we are not concerned presently with the

proceeding initiated by the school authorities. It is

being argued on behalf of the appellant that the said

proceeding was initiated pursuant to the

observations made by the learned Single Judge

while disposing of the earlier writ petition. In our

view, there is nothing to suggest that the earlier

disciplinary proceeding was revalidated by the

learned Single Judge. We are not going into the

question as to whether the initiation of the

subsequent proceeding was in accordance with law

or not.

However, we need to answer the question of

the appellant with regard to the back wages.

The learned Counsel for the appellant has

submitted that since the termination was held to be

invalid and the appellant was reinstated, he is

entitled to back wages. In this regard reliance has

been placed on the decision in Deepali Gundu

Surwase Vs. Kranti Junior Adhyapak

Mahavidyala (D.ED.) & Ors. reported at (2013) 10

SCC 324.

In opposing the said prayer, Mr. Dibyendu

Chatterjee, learned Counsel representing the school

authorities has submitted that since he has not

taken any class and there was prima facie evidence

of misconduct and charges are serious in nature

and the fact that the earlier proceeding was quashed

not on merits but due to absence of permission, the

principle of entitlement to full back wages could

apply in the instant case. In this regard, he has

relied upon the Division Bench judgment of our

Court in Sujit Das Vs. The West Bengal Board of

Secondary Education & Ors. reported at 1996

SCC OnLine Cal 163 : (1997) 2 Cal LJ 497.

In Deepali Gundu (supra), the Hon'ble

Supreme Court was considering the case of a

teacher in a primary school. The service of the

teacher was terminated. The Tribunal allowed the

appeal and quashed the termination of the

appellant's service and directed the management to

pay full back wages to the appellant. The Tribunal

considered the appellant's plea that she had not

been given reasonable opportunity of hearing and

took cognizance of the fact that the appellant was

kept under suspension from 14th November, 2006

and she was not gainfully employed after the

termination of her service and declared that she is

entitled to full back wages. It was observed that the

very idea of restoring an employee to the position

which he held before dismissal or removal or

termination of service implies that the employee will

be put in the same position in which he would have

been but for the illegal action taken by the

employer. The injury suffered by a person, who is

dismissed or removed or is otherwise terminated

from service cannot easily be measured in terms of

money.

In laying down the principle with regard to the

back wages it was observed that in cases of

wrongful termination of service, reinstatement with

continuity of service and back wages is the normal

rule. The said rule is subject to the rider that while

deciding the issue of back wages, the adjudicating

authority or the Court may take into consideration

the length of service of the employee/workman, the

nature of misconduct, if any, found proved against

the employee/workman, the financial condition of

the employer and similar other factors.

In Sujit Das (supra) no enquiry was

conducted except granting an opportunity to the

writ petitioner to file a reply to the show cause and

that too when given him an opportunity to take

inspection of all the relevant documents. The

second show cause notice was served upon

obtaining an approval of Section 24. Noting was

placed before the Writ Court or before the Appellate

Court to show as to on what basis the approval of

the Board was obtained for initiation of the

disciplinary proceeding. The Hon'ble Division Bench

held that the principles of natural justice have been

completely floated and the writ petitioner was

condemned almost unheard. However, keeping in

view the fact that the writ petitioner has filed several

writ applications and he had engineered one writ

application filed by the guardian of the school, the

relief for back wages was denied with the

observation that such claim for back wages shall

depend upon the ultimate result in the

departmental proceeding which may be held against

the appellant in terms of the said judgment.

Mr. Chatterjee has also relied upon a decision

of the Hon'ble Supreme Court in Paramjit Singh

Vs. Director, Public Instructions (Schools) & Ors.

reported at (2010) 14 SCC 416 which pertains to

the termination of service of a probation. It is

submitted that in the said decision the principle of

"no work, no pay" was applied by the Hon'ble

Supreme Court and an ad hoc amount towards

compensation was allowed because the termination

was found to be unjust and illegal.

Both the judgments referred by Mr. Chatterjee

are distinguishable on facts. We are not concerned

with the case of a probationer. The petitioner was

appointed as an assistant teacher from 2004.

Unlike Sujit Das (supra) the petitioner did not

orchestrated any proceeding being launched to

cover up the issues involved. He only filed one writ

application in which he was able to establish that

there were serious procedural lapses. There cannot

be any doubt that the charges levelled against the

writ petitioner, if proved, would attract punishment

but surprisingly, the school authorities did not ask

for post-facto approval of the Board and did not

make any endeavour to cure the procedural lapses

by giving an opportunity to the writ petitioner to

make a representation against the proposed

punishment. This conduct is inexcusable and in

explicable. The action appears to be arbitrary.

In view of the fact that the appellant was able

to establish that her service was wrongfully

terminated and the absence of the willingness of the

School to cure the defect that was available to the

school authorities if they were really serious about

the outcome of the disciplinary proceeding, we are of

the view that the petitioner shall be entitled to 50

percent of back wages from the date of termination

till he was allowed to join and the same be paid

within two weeks from date.

This order, however, shall not have any

bearing on the proceeding recently initiated against

the appellant.

Accordingly, the appeal and the application

stand disposed of.

However, there shall be no order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual

undertaking.

(Uday Kumar, J.)                            (Soumen Sen, J.)