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1991 Supreme(Cal) 249
High Court of Calcutta
Mahitosh Majumdar, J.
Bholanath Roy – Appellant
Versus
State of West Bengal – Respondent
Decided On : May 10, 1991
Gobinda Chowdhury, Swapan Kumar Dutta
The Court held that the show cause notice issued by the school management was ultra vires and violative of Rule 28(8) of the West Bengal Act, 1969, as it did not comply with the mandatory requirements of the said rule and was issued in clear breach of the same. The Court also held that the school management had acted in a malafide manner and with a predetermined intention to terminate the services of the petitioner.
Headnote:
CONSTITUTION OF INDIA - ARTICLE 14, 21 - WEST BENGAL ACT, 1969 - RULE 28(8) - WRIT PETITION - INTERIM ORDER - INJUNCTION - EDUCATIONAL INSTITUTION - AIDED SCHOOL - ASSISTANT TEACHER - TERMINATION OF SERVICES - SHOW CAUSE NOTICE - PERSONAL LIBERTY - RIGHT TO LIFE - RIGHT TO LIVELIHOOD - RIGHT TO WORK - STATE LAWLESSNESS - JUDICIAL ACTIVISM - POLICE PROTECTION - NATURAL JUSTICE - PRINCIPLES OF AUDI ALTEREM PARTEM - REASONABLE OPPORTUNITY - FAIRNESS - MALAFIDE INTENTION - ARBITRARINESS - UNREASONABLENESS - EQUAL PROTECTION OF LAW - GOVERNMENTAL FUNCTIONARIES - STATUTORY DUTIES - POLICE ADMINISTRATION - DUTY TO MAINTAIN LAW AND ORDER - PREVENTION AND DETECTION OF CRIME - JUDICIAL REVIEW - WRIT JURISDICTION - FUNDAMENTAL RIGHTS - VIOLATION - SCHOOL MANAGEMENT - MANAGING COMMITTEE - DISCIPLINARY PROCEEDINGS - PROCEDURE - CHARGESHEET - EXPLANATION - APPROVAL OF THE BOARD - FINAL DECISION - BINDING EFFECT.
Fact of the Case:
The petitioner, an Assistant Teacher in an aided school, was prevented from attending school due to threats and intimidation by certain members of the Managing Committee. Despite lodging complaints with various authorities, no action was taken. The petitioner received a show cause notice from the school management proposing termination of his services. The petitioner challenged the show cause notice as being ultra vires and violative of Rule 28(8) of the West Bengal Act, 1969.
Finding of the Court:
The Court held that the show cause notice was ultra vires and violative of Rule 28(8) of the West Bengal Act, 1969. The Court further held that the Superintendent of Police, Officer-in-Charge of the local police station, and the District Inspector of Schools were responsible for keeping the petitioner out of his work without any salary for months together and also placing him at the mercy, vagaries, whims, and caprice of the School Committee and the Respondent no. 9 and his fellow-travellers. The Court directed the Superintendent of Police, Officer-in-Charge of the local police station, and the District Inspector of Schools to take immediate steps for the resumption of duties by the petitioner as an Assistant Teacher of the said school. The Court also directed the school management to see that the Members of the Managing Committee of the said School do not interfere with the functioning of the petitioner as an Assistant Teacher of the said School.
Issues: 1. Whether the show cause notice issued by the school management was ultra vires and violative of Rule 28(8) of the West Bengal Act, 1969? 2. Whether the Superintendent of Police, Officer-in-Charge of the local police station, and the District Inspector of Schools were responsible for keeping the petitioner out of his work without any salary for months together and also placing him at the mercy, vagaries, whims, and caprice of the School Committee and the Respondent no. 9 and his fellow-travellers? 3. Whether the Court could direct the Superintendent of Police, Officer-in-Charge of the local police station, and the District Inspector of Schools to take immediate steps for the resumption of duties by the petitioner as an Assistant Teacher of the said school?
Ratio Decidendi: 1. The Court held that the show cause notice was ultra vires and violative of Rule 28(8) of the West Bengal Act, 1969, as it did not comply with the mandatory requirements of the said rule and was issued in clear breach of the same. The Court also held that the school management had acted in a malafide manner and with a predetermined intention to terminate the services of the petitioner. 2. The Court held that the Superintendent of Police, Officer-in-Charge of the local police station, and the District Inspector of Schools were responsible for keeping the petitioner out of his work without any salary for months together and also placing him at the mercy, vagaries, whims, and caprice of the School Committee and the Respondent no. 9 and his fellow-travellers. The Court held that these authorities had failed to discharge their statutory duties and had acted in an arbitrary and unreasonable manner. 3. The Court held that it could direct the Superintendent of Police, Officer-in-Charge of the local police station, and the District Inspector of Schools to take immediate steps for the resumption of duties by the petitioner as an Assistant Teacher of the said school. The Court held that this was necessary to protect the petitioner's fundamental rights under Articles 14 and 21 of the Constitution of India.
Final Decision: The Court allowed the writ petition and declared the show cause notice issued by the school management to be ultra vires and null and void. The Court also directed the Superintendent of Police, Officer-in-Charge of the local police station, and the District Inspector of Schools to take immediate steps for the resumption of duties by the petitioner as an Assistant Teacher of the said school. The Court further directed the school management to see that the Members of the Managing Committee of the said School do not interfere with the functioning of the petitioner as an Assistant Teacher of the said School.
1. THIS writ application was presented on October 5 1988 when this court passed an order to the following effect :
"considering the urgency of the matter as pleaded in the writ application, requirement under Rule 21 of the Writ Rules is dispensed with. Considering the facts and circumstances of the case and the grievances of the petitioner, as effectively placed by Mr. Dutta, I am prima facie satisfied that an interim order of injunction is merited for grant of an interim order in terms of prayer (g)of the petition till Friday, October, 7, 1988. The petitioner shall mot be allowed to join his duties in the meantime. Let this application appear for hearing on Listed motion on October 7, 1988. Copies of this application are to be served upon all the respondents and an affidavit in service is to be filed in the meantime."
2. THIS Court while granting interim order of injunction directed that the copies of the writ application be served upon all the respondents and an affidavit of service be filed in the meantime. Accordingly, copies of the writ application together with all annexures ware duly served upon all the Respondents and affidavit of service was affirmed on October 7, 1988 and the matter was placed in the List of December 14, 1988 when Mr. Swapan Dutta was present on behalf of the petitioner, but no one was present for the -respondents. In those circumstances, this court passed an order, inter alia, to the following effect:
"14.12.88. Mr. Swapan Dutta for the petitioner. The petitioner has filed an A/s. Let it be kept with the record. The interim order passed on 5th October 1988 is extended until further orders. Let the A/O be filed within two weeks after the X-Mas holidays and let reply thereto be filed by two weeks thereafter and the matter will come up as a contested application four weeks after the X-Mas holidays."
Thereafter, on March 12, 1991, the matter was taken up for hearing when the order to the following effect was passed by this Court :
"12. 3. 91. Mr. Swapan Kumar Dutta. . . . . . for the petitioner. Despite service of the copy of the writ application upon the Respondents' and despite directions given for filing of affidavits, no one appears for the respondents nor any A/O has been filed. However, i allowed Mr. Dutta, learned Advocate for the petitioner to proceed with his arguments. Hearing is concluded and judgment is reserved. "
3. THE facts of the case are as follows : on July 20, 1964, the writ petitioner joined the nandanpur Rupchand Academy (Aided Higher Secondary and Co education) School (for short the said School)here after as an Assistant Teacher and since then the petitioner has been discharging his duties to the satisfaction of all concerned. The approval of the appointment of the petitioner to the post of Assistant Teacher was duly effected by the. concerned authority.
4. THE petitioner raised serious grievances in the writ petition against the interference with the functioning of the petitioner by some interested persons of the present ruling clique that the petitioner was and/or is prevented from attending the said School as a result whereof the petitioner had to file the criminal case against the persons owning allegiance to the present ruling clique in the State. The said case was initiated in the court of sub-divisional Judicial Magistrate, Arambagh, which was numbered as C. R. Case No. 313 of 1981. The accused in the said case were found guilty of offence of intentional insult with the intent to provoke breach of the peace punishable under Section 504 of the Indian Penal Code and accordingly, convicted by a judgment dated June 9, 1987 passed by the Judicial Magi strate, Additional Court, arambagh. Against the said judgment, Opposite Parties preferred an appeal which was at the material time pending before the Additional Judge, Hooghly. At the instance of Ka lobar an Manna (for short the respondent no. 9 hereafter), one of the accused parties in the said Criminal proceedings at the materia
