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2011 Supreme(Cal) 398
HIGH COURT OF CALCUTTA
SOUMITRA PAL, J.
Anjana Dubey - Appellants
Vs
State Of West Bengal - Respondents
W.P. No. 1664 of 2005
Decided on: March 18, 2011
J. Pandit, S. Bose, S.K. Sanyal, S. Das
Departmental proceedings against a government employee must be instituted within four years from the date of the alleged misconduct or negligence, as per Rule 10 of the West Bengal Services (Death-cum-Retirement) Benefit Rules, 1971.
Headnote:
SERVICES - DEPARTMENTAL ENQUIRY - LIMITATION - ARTICLES OF CHARGES - BACK WAGES - PENSION - West Bengal Services (Death-cum-Retirement) Benefit Rules, 1971, R.10 - West Bengal Recognised Non-Government Education Institution Employees (Death-cum-Retirement) Benefit Scheme, 1981, R.19(5).
Fact of the Case:
Petitioner, a Teacher-in-charge of a school, challenged the departmental enquiry notices issued against her, alleging misappropriation of funds and negligence. The petitioner had earlier been dismissed from service in 2001, but the Director of School Education had directed the school authorities to follow the principles of natural justice and frame Articles of Charges before dismissal. Despite this, the school authorities issued fresh departmental enquiry notices in 2005.
Finding of the Court:
The Court held that the departmental proceedings initiated by the impugned notices were bad in law as they were not in continuation of the earlier proceedings and were instituted more than four years after the alleged incident, in violation of Rule 10 of the West Bengal Services (Death-cum-Retirement) Benefit Rules, 1971. The Court also found that the petitioner was entitled to 50% of the back wages for the period she was illegally dismissed, from 12th September 2001 to 30th June 2003, when she would have retired.
Issues: 1. Whether the departmental proceedings initiated by the impugned notices were in continuation of the earlier proceedings? 2. Whether the departmental proceedings were barred by limitation under Rule 10 of the West Bengal Services (Death-cum-Retirement) Benefit Rules, 1971? 3. Whether the petitioner was entitled to back wages and provisional pension?
Ratio Decidendi: 1. The impugned notices were not in continuation of the earlier proceedings as they were issued after the earlier proceedings had been concluded by the Director of School Education's order. 2. The departmental proceedings were barred by limitation under Rule 10 of the West Bengal Services (Death-cum-Retirement) Benefit Rules, 1971, as the alleged incident took place in 1999 and the notices were issued in 2005, more than four years later. 3. The petitioner was entitled to 50% of the back wages for the period she was illegally dismissed, as per the principles laid down in State of U.P. v. Ved Pal Singh: AIR 1997 SC 608.
Final Decision: The Court allowed the writ petition in part, quashed the impugned notices, and directed the school authorities to pay 50% of the back wages to the petitioner within two months. The Court also directed the State of West Bengal to pay the provisional pension to the petitioner within eight weeks from the date of presenting the certified copy of the order.
1. IN the writ petition, the petitioner, who was the Teacher-in- charge of Arya Kanya Maha Vidyalaya (Higher Secondary) (for short the "said institution"), has challenged the notice dated 7th May, 2005 whereby the said institution proposed to hold a departmental enquiry against her and the notice dated 1st August, 2005 whereby the Administrator of the said institution intimated that the Headmaster of Kumar Ashutosh INstitution for Boys, Dum Dum, had been appointed Enquiry Officer to enquire into the charges levelled against her and to submit an enquiry report. It is to be noted that on 25th, September, 2001 an Administrator was appointed over the said school.
2. ACCORDING to the petitioner, on or about 12th September, 2001 while she was the Teacher-in-Charge, she received a notice that the Managing Committee of the said Institution had passed resolution on that day discharging her service and had directed to hand over the charge of the school to its Secretary. Thereafter, the petitioner received a notice dated 2nd January, 2002 from the Administrator directing her to show cause why she did not hand over the bank cheque books, fixed deposit certificate and the keys. The petitioner, by letter dated 16th January, 2002, replied. On 27th May, 2002 the petitioner made a representation to the West Bengal Board of Secondary Education against the order of dismissal dated 12th September, 2001 with a prayer for a direction upon the Administrator to allow her to resume duties. Thereafter, from the sequence of events, it appears that the petitioner filed a writ petition being W.P.No.1715 of 2002, challenging the notice dated 2nd January, 2002. The said matter was disposed of on 22nd January, 2004 by granting liberty to the petitioner to prefer appeal before the Director of School Education, West Bengal, against the order of dismissal dated 12th September, 2001 in terms of Rule 12(2) of the Special Rules for the management of the secondary schools established and run by Arya Samaj and it was directed in the event such appeal was filed, the Director was requested to dispose of the same preferably within two months from the date of filing such appeal. It was recorded in the said order that since the petitioner had crossed the age of superannuation, she was entitled to have the provident fund to which she was entitled to in accordance with law.
Pursuant to the said order, as evident from annexure-P/11, the Director of School Education, West Bengal, granted a hearing and the matter was disposed of by passing an order contained in the memo dated 24th March, 2005 the relevant portion of which is as under:
"Now in the circumstances I would like to direct the Managing Committee/ Administrator of the school to look into two aspects namely, 1. Charge on misappropriation of fund is pending before the Court of law. Until and unless that case is finalized and corruption charges are established a permanent employee cannot be dismissed simply on accusation. 2. If the employee is to be dismissed then Article of Charges shall be framed, and forwarded to the employee concerned and, in that event Smt. Anjana Dubey shall receive the letter of charges and submit her submissions in writing to the authority concerned and Smt. Dubey shall be given the opportunity of being heard personally or though her Advocate. After carefully considering the above two points the Authority shall take a decision as per Law. With the above direction I dispose of the case. All concerned are being informed accordingly."
3. IT requires to be mentioned that the Director in his order had noted that a criminal case is pending before the learned 4th Metropolitan Magistrate, Bank shall Court, Kolkata, which was pursuant to a complaint by the school. IT appears that the Director held that the permanent employee could not be dismissed simply on accusation and if an employee is to be dismissed then Articles of Charges shall have to be framed and forwarded to the employee concerned and
