Back
IN THE HIGH COURT AT CALCUTTA
SUBRATA TALUKDAR, SUPRATIM BHATTACHARYA, JJ.
Ashish Kumar Tiwari – Appellant
Versus
The State of West Bengal and Others – Respondents
MAT Nos. 1605, 1606, 1607, 1610 of 2022, IA No. CAN 1 of 2022
Decided On : 30-06-2023
WEST BENGAL BOARD OF SECONDARY EDUCATION ACT - Rule 28(8) - GENERAL CLAUSES ACT - Omission of Rule 28(8) of the 1969 Rules renders disciplinary proceedings initiated under the Rule ineffective and infructuous.
Fact of the Case:
Two teachers of an aided school were suspended and disciplinary proceedings were initiated against them. The Board initially disapproved the proposal for suspension and disciplinary proceedings. However, on a fresh consideration, the Board approved the proposal. Subsequently, the State Government issued a notification omitting Rule 28(8) of the 1969 Rules, which dealt with the powers of the Managing Committee and the Board in disciplinary proceedings. The school challenged the Board's order approving the disciplinary proceedings, and the teachers challenged the validity of the disciplinary proceedings in light of the omission of Rule 28(8).
Finding of the Court:
The court held that with the omission of Rule 28(8) of the 1969 Rules, the authority of the Board to approve suspension and the first stage of disciplinary proceedings stood extinguished with immediate effect. Therefore, the orders passed by the Board dated 25.9.2018 approving the disciplinary proceedings became ineffective.
Issues: 1. Whether the omission of Rule 28(8) of the 1969 Rules extinguished the authority of the Board to approve suspension and the first stage of disciplinary proceedings? 2. Whether the disciplinary proceedings initiated under Rule 28(8) became ineffective and infructuous due to the omission of the Rule?
Ratio Decidendi: 1. The court relied on the principle that where a statute repeals an enactment, unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactment. 2. The court held that the disciplinary proceeding against the teachers was initiated by the Managing Committee to be valid upon fulfilment of the role to be exercised by the Board under the pre-existing Rule 28(8). 3. With the role of the Board extinguished by the Notification dated 8.3.2018, the disciplinary proceedings cannot stand partially modified to the extent that the Managing Committee would now complete this disciplinary proceedings from the stage the Board stood left out.
Final Decision: The court set aside the judgment and order passed in WPA 22714 of 2018, WPA 22721 of 2018, WPA 2561 of 2020, and WPA 2562 of 2020. The disciplinary proceeding impugned in the writ petition was set aside as a whole. However, the school was allowed to proceed de novo under the new Rules if and so advised.
JUDGMENT :
1. These appeals have been preferred against the Judgment and Order passed by the Hon’ble Single Bench on the 7th day of September, 2022 in the writ petitions being No. 2561 of 2020 filed by Ashish Kr. Tiwari, WPA 2562 of 2020 filed by Sushil Kr. Rai, WPA 22714 of 2018 and WPA 22721 of 2018 have been filed by the Managing Committee of Shree Balkrishna Vithalnath Vidyalaya and another.
2. For the sake of convenience all the four appeals being MAT 1605 of 2022, MAT 1606 of 2022, MAT 1607 of 2022 and MAT 1610 of 2022 are dealt analogously.
3. Through the impugned Judgment and order the Hon’ble Single Bench has dismissed WPA No. 2561 of 2020 and WPA NO. 2562 of 2020 and has allowed WPA NO. 22714 of 2018 and 22721 of 2018.
4. The lis involves common questions of law that is whether by the notification no. 214-SE dated 8.3.2018 issued by the School Education Department of West Bengal, the jurisdiction and authority of the West Bengal Board of Secondary Education (in short the Board) in respect of disciplinary proceedings against the two employees stood extinguished and in consequence to that whether the order dated 5.9.2018 is legal and sustainable.
5. The fact of the instant lis is that two employees writ petitioners in WPA 2561 of 2020 and WPA 2562 of 2020 were teachers of Shree Balkrishna Vitalnath Vidalaya.
Both the teaching and non teaching staff of the school receive dearness allowance from the State and the school is an aided school within the meaning of the West Bengal Board of Secondary Education Act 1963 and the Management of Recognized Non-Government Institutions (Aided and Unaided) Rules 1969.
Disciplinary proceedings were instituted against both the employees/ writ petitioners. Initially approval for suspending the employees and the first stage of disciplinary proceedings was declined by the Board vide order dated 10.7.2018. As per the orders dated 10.7.2018 passed in writ petition 15242(W) of 2018 and writ petition 15243 (W) of 2018 the order of the President of the Ad-hoc Committee of the Board was set aside and the matter was remanded back for consideration afresh by the Ad-hoc committee of the Board. Pursuant to the said direction of this Court the Board once again disapproved the proposal of the first stage of the disciplinary proceedings against both the employees as also the orders of suspension. The employees sought for reinstatement in service in the school and other consequential reliefs. The School in question filed WPA 22714 of 2018 and WPA 22721 of 2018 challenging the Board’s order dated 25.9.2018.
6. The powers of a Managing Committee of aided and non aided institutions to deal with their employees have been defined under West Bengal Board of Secondary Education Act 1969 (for short the 1969 Act).
Rule 28 (8) of the said Act lays down as follows:
….
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 the5 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 ex
Omission of a rule in a statute renders proceedings initiated in accordance with the rule ineffective or infructuous.
Minority institutions are not bound by external regulations like the Rules of 2018, provided they ensure fair hearing in disciplinary proceedings.
Point of law: A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceeding is kept pending by the employer the employee cannot be made to reti....
The court established the validity of the Special Rules in relation to the Management Rules, 1969 and determined that the Special Rules had not been rescinded and were still in operation.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
