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2002 Supreme(Cal) 346
High Court Of Calcutta
Amitava Lala
GOURI PHANI CHAKRABORTY - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 14011 Of 2001
Decided On : 05/20/2002
ASHOK SARKAR, BHUDEV BHATTACHARYA, BIKASH RANJAN BHATTACHARJI, DEBASIS KAR GUPTA, J.N.DAS, NABANITA ROY, S.AHMED
A suspension order that effectively bars a confirmed teacher from attending service till the date of retirement is a major penalty requiring a second showcause notice before its imposition.
Headnote:
WEST BENGAL TEACHERS (SECURITY OF SERVICE) ACT, 1975 - SECTIONS 9, 11 - SUSPENSION - FINAL PUNISHMENT - COLOURABLE EXERCISE OF POWER - SECOND SHOWCAUSE.
Fact of the Case:
The petitioner, a Principal of a women's college, was suspended on charges of insubordination, dereliction of duty, financial irregularities, and misconduct. The suspension was upheld by the University and the Appellate Tribunal. The petitioner challenged the suspension order, arguing that it was a major penalty imposed without following the proper procedure, including the issuance of a second showcause notice.
Finding of the Court:
The court held that the suspension order was illegal as it was imposed as a final punishment without following the procedure prescribed for major penalties under the West Bengal Teachers (Security of Service) Act, 1975. The court also held that the petitioner was entitled to a second showcause notice before the imposition of the penalty.
Issues: 1. Whether the suspension order was a major penalty requiring a second showcause notice? 2. Whether the petitioner was entitled to a copy of the enquiry report and a second showcause notice before the imposition of the penalty?
Ratio Decidendi: The court relied on the provisions of the West Bengal Teachers (Security of Service) Act, 1975, which distinguish between minor and major penalties. Suspension is considered a minor penalty, while compulsory retirement, removal, and dismissal are considered major penalties. The court held that the suspension order in this case was a major penalty because it effectively barred the petitioner from attending her service till the date of retirement. The court also held that the petitioner was entitled to a second showcause notice before the imposition of the penalty, as required by the Act.
Final Decision: The court set aside the suspension order and directed the authorities to proceed in accordance with the law, including the issuance of a second showcause notice to the petitioner.
( 1 ) THE petitioner joined in the post of Principal of the concerned women's college on 22nd December, 1990. Such service was confirmed. However, a showcause notice was issued upon her on 24th March, 2000. On 7th April, 2000 a reply to showcause notice was given. On 11th April, 2000 the governing body of the college took a resolution to issue a chargesheet upon her. She was also suspended with immediate effect on the basis of such resolution. This resolution was sent for approval of the concerned authority of the University under which the college is affiliated. The University disapproved the order of suspension and intimated accordingly on 10th May, 2000. But for various other reasons i. e. not handing over keys etc. on 16th May, 2000 this petitioner moved a writ petition being AST No. 1632 (W) of 2000 when a single Judge of this Court was pleased to pass an order directing the college authorities to hand over the keys and documents etc. to the petitioner and further directed to take steps in accordance with law, if necessary, upon giving opportunity of hearing. On 19th June, 2000 an appeal was preferred from such order being MAT No. 1824 of 2000. An order was passed by the Appeal Court to expedite the disciplinary proceeding and conclude the same within the prescribed period as given thereunder. Such order was communicated on 28th July, 2000. So far the other parts are concerned i. e. issuance of memorandum on 19th August, 2000 to hand over the keys of the almirah and whether same was done or the lock was broken on 24th August, 2000 or not are no way relevant for the purpose of consideration of the issue herein, therefore this Court does not feel to deal with the same.
( 2 ) ON 26th September, 2000 one Mr. Nirmal Kanti Sarkar an advocate, informed the petitioner that he has been appointed to discharge the function of Enquiry Officer. On 9th October, 2000 such Enquiry Officer directed the petitioner to give reply to the chargesheet. On 14th October, 2000 the petitioner, in her reply, expressed her awareness regarding the appointment of Enquiry Officer. On 27th October, 2000 the stipulated period to conclude the disciplinary proceedings as given by the Division Bench of this High Court expired. On 29th October, 2000, the writ petitioner requested the college authorities to allow her to join in her service. But even after expiry of the period on 9th November, 2000 the President of the governing body of the college authority informed the petitioner that one Mr. Nirmal Kanti Sarkar was appointed as Enquiry Officer vide resolution dated 12th July, 2000. On 3rd February, 2001 the Enquiry Officer informed the writ petitioner to inspect documents in respect of the charges levelled against her and submit her defence. On 7th February, 2001 a reply was given by the petitioner saying that time as given by the Division Bench of this High Court for concluding disciplinary proceedings has since been expired she cannot participate unless the time is extended.
( 3 ) ON 16th February, 2001 a further writ petition being W. P. No. 2373 (W) of 2001 was proceeded against the constitution of illegal suspension dated 11th April, 2000. The respondent has filed the affidavit-in-opposition therein.
( 4 ) HOWEVER, on 7th February, 2001 the petitioner was served with a copy of application for extension of time to conclude the disciplinary proceedings before the Division Bench. Such time was extended for a period of two months from the date of the order i. e. 13th July, 2001.
( 5 ) IN any event, on 29th August, 2001 an order of suspension till superannuation of the petitioner was passed relying upon the enquiry report, copy of which was not formally served upon the writ petitioner. Such order is impugned under the present writ petition.
( 6 ) SEVERAL allegations are made by the petitioner in respect of charges levelled against her, process of disciplinary proceedings etc. when the respondent authorities denied such allegations.
( 7 ) H
