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IN THE HIGH COURT AT CALCUTTA
Ruma Pal, M.H.S. Ansari & Ronojit Kumar Mitra, JJ.
Arun Kumar Hait
vs.
State of West Bengal & Ors.
SPECIAL BENCH Mat No. 765 of 1998
Decided On : April 8, 1999
DISCIPLINARY PROCEEDINGS - SUSPENSION - APPROVAL - INQUIRY OFFICER - PROCEDURE - WEST BENGAL BOARD OF SECONDARY EDUCATION ACT, 1963 - MANAGEMENT RULES, 1969 - RULES 28(8), 28(8A), 28(9)(VIIA) - NOTIFICATIONS S/607, S/606.
Fact of the Case:
The appellant was appointed as the Headmaster of Dum Dum Kumar Ashutosh Institution Branch on 26th March, 1996. On 17th October, 1996, the appellant was served with an order of suspension. The proposal of suspension was sent by the Managing Committee of the Institution to the West Bengal Board of Secondary Education (WBBSE) for approval in terms of Rule 28(8) and (8a) of the Rules for Management of Recognized Non-Government-Institutions (Aided & Unaided) Rules, 1969 (referred to as the Management Rules). The WBBSE disapproved the suspension and communicated the disapproval to the Institution on 17th December, 1996. The Institution challenged the disapproval order of the WBBSE by way of a Writ Petition (W.P. No. 60 of 1997: Durgadas Mukhopadhyay vs. West Bengal Board of Secondary Education & Ors.). An interim order was passed on 2nd May, 1997, staying the disapproval order of the WBBSE. The writ application is still pending. In the meanwhile, on 21st December, 1996, a charge sheet was drawn up by the Institution against the appellant. The charge sheet was sent to the appellant on 16th January, 1997.
Finding of the Court:
1. Suspension is not a sine qua non of disciplinary proceedings and may not at all be taken recourse to by the School Authorities disciplinary proceedings against a teacher/employee. 2. An approval of an order of suspension cannot be taken as a finding of guilt nor a disapproval of the proposed suspension mean that the disciplinary proceedings cannot be commenced and proceeded with. 3. The Managing Committee has the power to appoint an Inquiry Officer and Presenting Officer for the purpose of holding an inquiry either at the initial stage or at the punishment stage. 4. The Managing Committee must follow the principles of natural justice by giving the persons concerned an opportunity to cross-examine any witnesses and to present his evidence fairly and; the authority concerned must itself apply its mind to the report of the Enquiry Officer and arrive independently at a conclusion after such consideration as to the guilt or innocence of the person enquired against.
Issues: 1. Whether the Managing Committee has the power to initiate or to proceed with the disciplinary proceedings once the order of suspension has been disapproved by the Board? 2. Whether the Managing Committee under Rule 28 of the 1969 Management Rules has the power to appoint an Inquiry Officer and Presenting Officer for the purpose of holding an inquiry either at the initial stage or at the punishment stage? 3. What is the procedure to be followed by the Managing Committee under Rule 28 of the 1969 Management Rules?
Ratio Decidendi: 1. The power of suspension is only pending drawal of proceedings and can be made in the interest of the Institution. The continuance of the suspension is however subject to the proceedings being drawn up within a period of ninety days. These factors also show that the suspension is not part of the disciplinary proceeding itself. 2. The principle of casus omissus is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made. There is no such compelling language in Rule 28(8) of the Management Rules with regard to the holding of inquiry. The fact that the appointment of an Inquiry Officer is statutorily provided for in some cases indicates that the procedure is statutorily recognised as a "reasonable opportunity" for a delinquent to defend himself. 3. There are two overlapping procedures one express and the other implicit which are required to be followed by the Managing Committee in the initiation, holding and conclusion of disciplinary proceedings under Rule 28(8) of the 1969 Management Rules. The express procedure provides the basic skeleton which is "fleshed out", as it were, by the implicit procedural requirements.
Final Decision: Appeal dismissed.
Ruma Pal, J.
The appellant was appointed as the Headmaster of Dum Dum Kumar Ashutosh Institution Branch (referred to as the Institution) on 26th March, 1996. On 17th October, 1996 the appellant was served with an order of suspension. The proposal of suspension was sent by the Managing Committee of the Institution to the West Bengal Board of Secondary Education (WBBSE for short) for approval in terms of Rule 28(8) and (8a) of the Rules for Management of Recognized Non-Government-Institutions (Aided & Unaided) Rules, 1969 (referred to as the Management Rules). The WBBSE disapproved the suspension and communicated the disapproval to the Institution on 17th December, 1996.
2. The Institution challenged the disapproval order of the WBBSE by way of a Writ Petition (W.P. No. 60 of 1997: Durgadas Mukhopadhyay vs. West Bengal Board of Secondary Education & Ors.). An interim order was passed on 2nd May, 1997 staying the disapproval order of the WBBSE. The writ application is still pending.
3. In the meanwhile on 21st December, 1996 a charge sheet was drawn up by the Institution against the appellant. The charge sheet was sent to the appellant on 16th January, 1997.
4. On 25th July, 1997 the Institution intimated the appellant that one Shyamal Kumar Chowdhury had been appointed as the Inquiry Officer to inquire into the charges against the appellant and that one Taraprasad Halder, Advocate had been appointed as the Presenting Officer on behalf of the Managing Committee.
5. In August, 1997 the appellant filed a writ application inter alia challenging the disciplinary proceeding and the appointment of the Inquiry Officer (W.P. No. 17233 of 1997: Arun Kumar Hait vs. State of West Bengal & Ors.). By an order dated 5th January, 1998 the writ petition was disposed of directing the appellant to place all relevant materials, evidences, including his written statement of defence before the Inquiry Officer on 31st January, 1998.
6. On 29th January, 1998 the matter was mentioned before the Court by the appellant who submitted that it had not been possible for him to file his written statement of defence on the date fixed. The Court directed the appellant to ask the disciplinary authority for an extension of time.
7. Instead of filing the written statement of defence the appellant filed an appeal on 7th April, 1998 from the order dated 5th January, 1998 as modified by the order dated 29th January, 1998 disposing of the writ petition. The Appellate Court was prima facie of the view that in terms of Rule 28(8) of the Management Rules, disciplinary proceedings could be started only after obtaining the approval of the WBBSE to the suspension. The Appellate Court disagreed with what it stated was the view of another Division Bench in Sujit Kumar Das & Ors. vs. West Bengal Board of Secondary Education & Ors. reported in 1997 (2) CLJ 497 holding that even before the WBBSE approved the suspension the disciplinary proceedings could continue. According to the Appellate Court, the earlier Division Bench had failed to consider a circular dated 21st June, 1998. The matter was accordingly referred to a Larger Bench. An interim order was passed to the effect that although the inquiry proceedings could continue no proposal for any punishment of the appellant would be made and the proceedings with respect to the punishment would be kept in abeyance until further orders.
8. This Bench was specially constituted to resolve the stated dispute between the two views expressed by the two Benches. The Court formulated three questions covering the subject matter of reference, namely :
1. Whether the Managing Committee has the power to initiate or to proceed with the disciplinary proceedings once the order of suspension has been disapproved by the Board?
2. Whether the Managing Committee under Rule 28 of the 1969 Management Rules has the power to appoint an Inquiry Officer and Presenting Officer for the purpose of holding an inquiry either at the initial stage or at the punishm
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