Calcutta High Court (Appellete Side)
Nitai Mondal vs State Of West Bengal & Ors on 20 September, 2024
Author: Harish Tandon
Bench: Harish Tandon
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Harish Tandon
And
The Hon'ble Justice Prasenjit Biswas
FMA No. 303 Of 2022
With
CAN 1 of 2022
Nitai Mondal
-Versus-
State of West Bengal & Ors.
For the Appellant : Mr. Indranil Roy,
Mr. Sunit Kumar Roy.
For the State : Mr. Biswabrata Basu Mallick,
Mr. Sanjib Das.
For the WBBSE : Ms. Koyeli Bhattacharyya.
Hearing Concluded on : 14.07.2024
Delivered on : 20.09.2024
2
Prasenjit Biswas, J:-
1.
The order passed by the learned Single Bench dated 02.12.2021 is assailed in
this appeal. By passing the impugned order the Board was directed to take further
steps after considering the charge sheet and reply thereto and after giving opportunity
of being heard to the school, D.I. of schools and the writ petitioner.
2. A disciplinary proceeding was initiated against this appellant by the Managing
Committee of the School and charge sheet/ Managing Committee Resolutions dated
22.01.2016 was filed under the Rules for Management of Recognized Non-Government
Institutions (Aided and Unaided) 1969. The appellant challenged the said charge sheet
and the enquiry report submitted by the enquiry officer on the ground that it suffers
from irregularity since the same has been filed by the defunct Managing Committee
constituted under the Rules for Management of Recognized Non-Government
Institutions (Aided and Unaided) 1969.
3. Learned Counsel appearing on behalf of the appellant submitted that under the
Management Rules of 1969 the Managing Committee of the school is the Disciplinary
Authority and the Board of Secondary Education is the approving authority in respect
of first stage and second stage of the disciplinary proceeding. So, direction given upon
the Board to take further steps after considering the charge sheet and reply thereto is
not permissible under the Law. As per submission of the learned counsel the West
Bengal Board of Secondary Education (Appointment, Confirmation, Conduct and
Discipline of Teachers and Non-Teaching staff) Rules, 2018 has no manner of
application in the present case.
4. Rule 28(8) of the Management of Recognized Non-Government Institutions
(Aided and Unaided) Rules, 1969 provides as follows-............
""28. Powers of Committee -......
28(1)........
28(2)........
28(3)........
28(4)........
28(5)........
28(6)........
28(7)........
28(8) Both in aided and un-aided Institutions the Committee shall have
the power, subject to the prior approval of the Board, to remove, or
dismiss permanent or temporary teachers and other employees. For this
purpose the Committee shall first draw up formal proceedings and issue
charge-sheet to the teacher or the employee concerned, and offer him
reasonable facility for defending himself. The teacher or the employee
proposed to be proceeded against shall submit his explanation,
ordinarily, within a fortnight of the receipt of the charge-sheet,
explanations submitted by the teacher or the employee concerned and
the reasons for which the Committee decides in favour of taking
disciplinary action. If the Board considers that there are sufficient
grounds for taking disciplinary action the Committee shall issue formal
notice calling upon the teacher or the employee considered to show-
cause, ordinarily within a fortnight, why he should not be dismissed or
removed from service. The Committee shall, then, send again to the
Board all relevant papers including the explanation submitted by the
teacher or the employee concerned and the recommendations of the
committee for the action proposed to be taken. So far as the Committee
is concerned, the decision of the Board shall be final: Provided that the
Board may delegate to any Committee constituted under section 24 of
the Act the powers and functions conferred on the Board by this sub-
rule."
5. Under the said Rule the Managing Committee had the power to remove or
dismiss permanent or temporary teachers and other employees subject to the prior
approval of the Board. The entire mechanism has been provided in the Rule.
6. The West Bengal Board of Secondary Education (Appointment, Confirmation,
Conduct and Discipline of Teachers and Non-Teaching staff) Rules, 2018 was
published by the State Government on 18.03.2018. On the same date another
Notification being No. 216-SE was made containing amendments to the Management
of Recognized Non-Government Institutions (Aided and Unaided) Rules, 1969. By the
said notification Rule 28(8) was omitted and in its place Rule 28A and 28B came to be
introduced. As per submission of the learned counsel of the appellant that by
notification no. 216-SE dated 18.03.2018 the proceeding instituted under Rule 28(8)
of 1969 Rule has become ineffective and the disciplinary proceeding instituted prior to
the notification has become infructuous.
7. Reliance has been placed by the learned counsel upon a decision rendered by a
Coordinate Bench of this court in case of Ashish Kumar Tiwari vs the State of West
Bengal (with Sushil Kumar Rai vs the State of West Bengal) wherein the Bench
held that the powers of the Managing Committee and Board qua disciplinary
proceedings as existing under Rule 28(8) of the 1969 Act prior to the notification dated
08.03.2018 must be holistically construed.
8. It is profitable to quote the observation made by the learned Coordinate Bench
at paragraph 12 which says as follows-
"12. From the understanding of the law laid down earlier this Court is of
the view that with the omission of the Rules in a Statute the proceedings
initiated in accordance with the Rules prevalent then becomes
ineffective or infructuous.
It is trite that the powers of the Managing Committee and Board qua
disciplinary proceedings as existing under Rule 28(8) of the 1969 Act
prior to the Notification dated 8.3.2018, must be holistically construed.
As would be evident from the facts of this case, the disciplinary
proceeding against the said two teachers was initiated by the Managing
Committee to be valid upon fulfillment of the role to be exercised by the
Board under the pre existing Rule 28(8) (supra).
In such view of the matter with the role of the Board extinguished by the
Notification dated 8.3.2018 (supra) the disciplinary proceedings cannot
stand partially modified to the extent that the Managing Committee
would not complete this disciplinary proceedings from the stage the
Board stood left out.
Undoubtedly, from the point of the view of the said two teachers, they
acted on the notion that the disciplinary proceedings would be governed
and completed under the pre amended Rule 28(8) (supra). With the
amendment ushered by the notification dated 8.3.2018, neither of the
parties could be placed at a more or less advantageous position vis-a-
vis the other in relation to this disciplinary proceeding. It cannot be
denied that the Managing Committee initiated the disciplinary
proceeding for fulfillment of the mandate under Rule 28(8) (supra) and,
if the original Rule 28(8) does not survive during the pending of the
disciplinary proceeding, the same cannot be allowed to be completed in
part under the amended Rule but, must go as a whole.
Accordingly, in this instant case the entire proceeding will have to be
construed in a holistic manner and not in part. With the omission
whatever benefit has been acquired by any of the parties does not
remain effective. Along with the omission of the Rules the effect of the
said Rule what has taken place till then extinguishes. One cannot have
the benefit without taking the negative aspect of the same.
So in this instant case, proceedings against both the teachers up to
what extent it has taken place which was in accordance with the earlier
Rule does not remain as such the school in question if it feels can taken
steps in accordance with the present prevalent Rules de novo from the
inception.
Thus, the judgment and order passed in WPA 22714 of 2018, WPA
22721 of 2018, WPA 2561 of 2020 and WPA 2562 of 2020 are set aside
the disciplinary proceeding impugned in the writ petition stands set
aside as a whole. However the school may proceed de novo under the
new Rules if and so advised."
9. Another point which the appellant has taken is that under the West Bengal
Board of Secondary Education (Appointment, Confirmation, Conduct and Discipline of
Teachers and Non-Teaching staff) Rules, 2018 Board can only consider the
chargesheet and the reply to the chargesheet while acting as disciplinary authority but
in the present case although the school has been converted as sponsored institution
vide Notification dated 30.09.2015 till date the Managing Committee constituted
under the rule 1969 is functioning illegally. It is stated by the appellant that he is
entitled to get his all arrear dues after holding the order of suspension dated
02.12.2015 as illegal.
10. We are in agreement with the view as made in the above referred case by the
Coordinate Bench of this court that if the original rule 28(8) of Rule 1969 does not
survive during pendency of the disciplinary proceeding then the same cannot be
allowed to be completed in part under the amended rule but must go as a whole.
11. During hearing we had occasion to go through the 'hearing report' as appended
at page 93 of the Paper Book. The relevant portion of the said report is quoted herein
below-
"Buddhadeb Jana, Secretary of the school submitted that as per
resolution of the M.C. dated 31.12.2015 the following charges were
framed against Nital Mandal, the H.M. of the school:
a) Enjoyment of unauthorized leave w.e.f. 30.06.2015
b) No steps in connection with appointment of T.I.C. was taken by the
H.M. before 30.06.2015
c) Non steps in connection with convince of guardian meeting was
taken
d) No audit report was submitted before M.C.
e) Expenditure of Rupees 28000.00 allotted for Uniform Grant was not
properly utilized.
f) Grant allotted for construction for toilet and urinal was not properly
utilized. As a result construction of toilet and urinal is not completed.
g) Some important files of the school was not delivered to the T.I.C.
The H.M. of the school submitted his reply against charge sheet to the
secretary of the school on 18.02.2016. The school authority suspended
Netai Mandal, H.M. of the school w.e.f. 02.12.2015 vide reference no.-
106/1 dated 02.12.2015. Copy of the same was also forwarded to the
Administrator W.B.B.S.E. for taking necessary action.
Heard the appearing parties patiently, gone through the statement of
H.M. Secretary, T.I.C. of the school. Verified supporting documents
submitted in support of their statements I am of the view that the
suspension proposal sent to the Administrator of W.B.B.E. has not yet
been approved. In many cases the allegations against H.M. of the school
seem to be true. Different grants sanctioned in favour of the school seem
to be not utilized properly. Most of the stake holders/ beneficiaries seem
to be deprived of getting the facilities of Government Grants. As such it
can be presumed that interest of the student and institution has been
violated.
The report is thus placed before D.I/S (SE), Purba Medinipur."
(emphasis supplied)
12. Where the charge sheet is accompanied by the statement of facts and the
allegations are not specific, definite and clear the enquiry should be vitiated. Thus,
nowhere should a delinquent be served a chargesheet, without providing to him, a
clear, specific and definite description of the charge against him. When statement of
allegations are not stated clearly the chargesheet, the enquiry stands vitiated, as
having been conducted in violation of the principles of natural justice. If the charges
are vague, then it does not save the enquiry from being vitiated, for the reason that
there must be fair-play in action, particularly in respect of an order involving adverse
or penal consequences. What is required to be examined is whether the delinquent
knew the nature of accusation. The charges should be specific, definite and giving
details of the incident which formed the basis of charges and no enquiry can be
sustained on vague charges.
13. The purpose of holding an enquiry against any person is not only with a view to
establish the charges leveled against him or to impose a penalty, but is also conducted
with the object of such an enquiry recording the truth of the matter, and in that
sense, the outcome of an enquiry may either result in establishing or vindicating his
stand, and hence result in his exoneration. Therefore, fair action on the part of the
authority concerned is a paramount necessity.
14. In the present case charges so framed are not specific, definite and giving
details of the incident and proceeding cannot stand on these vague charges.
15. So, there is illegality and material irregularity in the impugned order where
Board was directed to continue the departmental proceedings even after the
retirement of the appellant.
16. Accordingly the impugned order passed by the learned Single Bench is hereby
set aside.
17. Appeal is allowed.
18. The Report submitted by the Additional District Inspector of School (SE), Purba
Medinipore including the suspension order dated 2nd December, 2015 is hereby set
aside.
19. Authority concerned is hereby directed to release the arrear salary if any
including all retiral dues to the petitioner within one month from the date of this order
along with 9% simple interest on his due retiral benefits from the date of his
superannuation till realization of the same.
20. Urgent Photostat certified copy of this order, if applied for, be given to the
parties on payment of requisite fees.
I agree.
(Harish Tandon, J.)
(Prasenjit Biswas, J.)
