Abdul Wahab Azad vs State of West Bengal & Ors.

A para teacher appointed after due process was not allowed to rejoin his duties after Puja vacation on November 2, 2016. He was prevented by the

respondent No. 12/13 from doing so. On enquiry he was told that this was because of the allegation stated to be against him in respect of a first

information report which appears at Annexure P/7. Apparently he made representation against the same to the respondent No. 6/7 which appears at

page ‘32’ (Annexure P/3) resulting in a cryptic Memo as in Anneuxure P/6 dated April 7, 2017 whereby the respondent No. 6/7 informed the

petitioner through the respondent No. 8/9 that the joining of the writ petitioner will be considered only after completion of the trial in connection with

Kaliachak P.S. case No. 642/2016 dated September 25, 2016. Hence the present writ petition has been filed under Article 226 of the Constitution of

India.

On going through the records disclosed in the writ petition it appears that the first information report is based on a written complaint which too is an

enclosure to the first information report. Neither the first information report nor the written complaint states that the name of the accused is Abdul

Wahab Azad. Both these documents allege that the name of the fifth accused is Ohab Sk and also allege that he is the son of Md. Akimuddin Sk.

From the letter of appointment of the writ petitioner appearing at annexure P/1 it appears that his name is Abdul Wahab Azad and not Ohab Sk.

Therefore, on the face of the records it does not appear that the authorities of the Sarva Shiksha Mission had sufficient materials before them to treat

the writ petitioner as the fifth accused without even the first information report alleging that the name of the fifth accused was Ohab Sk. @ Abdul

Wahab Azad.

I would have made heavier weather of this arbitrariness on the part of the authorities of the Sarva Siksha Mission, Malda, had it not been for the

fact that the writ petitioner, no doubt on advice given by those who called themselves lawyers in Malda , surrendered and was enlarged on bail and the

only step he took against such arbitrary deprivation by the State and its authorities of his right to livelihood was to make an effeminate representation

for justice. As such it is clear that the writ petitioner has accepted himself as accused Ohab Sk. but he was innocent and at any rate he could not be

deprived of his livelihood on the mere allegation of having committed an offence. This appears from the facts pleaded in the writ petition on the face

of which the grounds have been taken. Relevant paragraphs containing the same are reproduced hereinbelow:

“13 The petitioner states that firstly, he has been falsely impleaded in the police case as in the F.I.R. and prayer for lodging complaint, no where

the name of your petitioner has been written. Moreover, on 24.09.2016, when the police authority visited the place of occurrence, i.e., around 10.15

P.M., the petitioner was also not found in the place. Nothing has been recovered from the petitioner like other accused persons ever. Nor he has been

detained in custody even for a single day. In the complaint of the police department also, nowhere it can be found that your petitioner has been

absconded. In this context, it is pertinent to mention here that the name of your petitioner has been impleaded only as a suspected person. No proof,

nothing has been found against your petitioner by any of the competent authority and he has also granted bail from the competent Court of Law.

Copies of the F.I.R. and the prayer for lodging complaint by the police authorities are annexed hereto and collectively marked with the letter “p-

7â€​.

The petitioner further states that no departmental enquiry and/orproceedings have ever been initiated against your petitioner and moreover, there is

no impediment under any of the provisions of law, in which the authority concern had deny/restraint your petitioner to join in the said school as a para

teacher.

Moreover, the petitioner had not yet been convicted by anycompetent Court of Law and moreover, no concrete charge has ever been made

against your petitioner and therefore, the authority concern, have illegally restraint your petitioner to resume/re-join in the said school as a para

teacher.

The petitioner further states that he has been falsely made a partyin the criminal case and your petitioner prayed before this Hon’ble Court

that he is an innocent person.

The petitioner states that he did not know, when the trial of thecriminal case has been concluded and if the plea of the authority is like that,

therefore, the petitioner not only suffer from financial stringency but also his fundamental rights have been infringed.

The petitioner states that there is no provision of law, wherein it isstated that an incumbent cannot be allowed to join/resume his duty as a para

teacher due to the pendency of criminal case and that too on the advice of the Learned Government Pleader.

The petitioner states that not only the same the concern authorityhas also stopped the remuneration of your petitioner since November, 2016 and

for the same the petitioner alongwith his old, aged parents, wife and daughter suffers from great financial hardship and due to such act of the concern

respondent authorities, the petitioner faced all such problem.

The petitioner states that he cannot be obstructed from joining hisduties on the ground of pendency of the criminal case. Moreover, there is a

settled principles of law that pendency of the criminal cases does not curtain any right of an accused person till his conviction and in this instant case

even the charge against your petitioner has not been proved and after knowing all this things, the authority concern has obstructed your petitioner from

joining in the said school as a para teacher and as such the said action of the concern authority is nothing but violation of fundamental rights as

enshrined in Article 14 and 21 of the Constitution of India.â€​

Though I have tried to elicit from the learned advocate appearing for the State of West Bengal if there is any statutory rule which allows suspension

of a para teacher and docking his honorarium on the mere allegation of having committed offence involving moral turpitude, it does not appear that any

such statutory rule operates in the field of employment/engagement of para teachers under the Sarva Siksha Mission. It appears, therefore, that this

has to be considered in the light of a contractual employment/engagement where one of the parties being the employer is the ‘State’ within the

meaning Article 12 of the Constitution of India. As such the extension of service of the petitioner till a period of 60 years means the benefits including

his honorarium, his fruits of labour after 60 years are secured but at the same time does not absolve the State from its duties as model employer. In

the field of contract, it is perfectly open to the employer to refuse to accept the service of the employee provided, in a case where the employee is still

willing to render his service the employer continues to pay for the services of the employee which he has voluntarily chosen not to take. In other

words, where without there being a stipulation in the contract that on mere allegation of commission of an offence, the employee can be deprived of

his livelihood without terminating the contract of employment, the employer must pay the honorarium to the employer as long as the employee is in

service and no stipulation has been made that any part of his honorarium can be withheld.

So I have no hesitation in holding that for the entire period from November 2, 2016 till today the State of West Bengal has arbitrarily deprived the writ

petitioner of his livelihood and this has been done without following the procedure established by law or due process. Thus it is clear violation of

Article 21 read with Article 19 (1) (g) of the Constitution of India. For that reason I can pass necessary orders even under Article 226 of the

Constitution of India though this is a matter of contract in the field of public law.

Coming now to the challenge to annexure P/6 which has been impugned before this Court. Mr. Panda, learned advocate appearing for the petitioner

has produced before this Court a certified copy of the order dated June 27, 2018 which is kept on record. From the said order passed by the learned

Chief Judicial Magistrate, Malda it appears that the accused persons in the said criminal case have all been discharged. This naturally includes the

petitioner. In such view of the matter Annexure P/6 which was issued only in contemplation of the proceedings pending against the writ petitioner has

lost its force and writ petitioner ought to have been allowed to rejoin the school even according to the own lights of the respondent No. 6/7. Naturally

the respondent No. 11/12 or respondent No. 12/13 cannot allow the writ petitioner to rejoin and take the burden of paying his honorarium on

themselves if the State arbitrarily chooses to prevent the petitioner from rejoining his duties since it is the State which will disburse the amount payable

as honorarium to the para teacher from the funds partly sourced from the Central Government and partly from the State Government and the school

itself cannot be made liable for this amount for the fault of the State.

So far as the legality of the action of the respondents in not allowing the petitioner to rejoin his duties merely on the allegation of an offence even it

involves moral turpitude, there are no rules in this case which allow it. When the respondents are acting as State, where there are no rules if they

chose to deprive a citizen from his livelihoold, they must show they have followed the procedure established by law. No notice was given to the

petitioner before he was prevented from rejoining his duties that this action was contemplated by the respondents against him. The first representation

in writing by the writ petitioner is of January 9, 2017. This does not show that the petitioner acted with reasonable diligence when the matter of his

own livelihood is involved. Accordingly I hold that these acts were bad in law but not bad ab initio; the deprivation of the livelihood by not putting

honorarium to the petitioner from 2, 2016 till date to be in violation of Articles 14 and 21 of the Constitution of India and, therefore, the said Memo as

in Annexure P/6 is set aside with effect from date but the requirement to pay honorarium is declared with effect from November 2, 2016 without

however any payment of interest thereon. The writ petitioner shall be allowed to rejoin his duties forthwith id est within 24 hours from the date of

communication of this order. The arrear shall be calculated by the respondent No.6 and shall be disbursed without requirement of the school

authorities raising any bill in that regard by treating the period between November 2, 2016 till the date the writ petitioner is allowed to rejoin the duties

as a period that the petitioner was in service but was illegally prevented from continuing with the same. Such disbursement is to be made within a

fortnight from the date of communication of this order.

The valuable assistance of Mr. Subhendu Sengupta, learned advocate for the State is appreciated because it is only because of his fairness there is no

order passed imposing exemplary costs on the respondent No. 6/7.

The writ petition is allowed.

There shall be no order as to costs.   Â