Albany Hall Public School and anr. vs Naaz Khan Singh and ors.

On consent of both the parties the appeal is taken up for hearing treating the same as on day''s list since the appeal was heard on earlier occasions.

This appeal is preferred by the Albany Hall Public School through its Managing Trustee, Albarn Educational Trustee, 47, Gorachand Road, Kolkata-700014, as appellant being aggrieved by the judgement and order dated 5th December, 2016 passed in writ petition being W.P. No.22594(W) of 2016 (Naaz Khan Singh Vs. State of West Bengal & ors.) on the grounds mentioned in the appeal.

The judgement aforesaid impugned in this appeal has been passed in two writ petitions viz., W.P. No.22594(W) of 2016 (Naaz Khan Singh Vs. State of West Bengal and ors.) and the other connected writ petition being W.P. No.22582(W) of 2016 (Kaushik Kumar Singh Vs. State of West Bengal & ors.) who were working as assistant teacher and headmaster respectively in the said school at the relevant point of time.

The respondent/writ petitioner was appointed in the year 2006 and was dismissed from her service vide order dated 2nd July, 2015 on the ground that at the time of her appointment she had submitted false post-graduate certificate of M.Com. and further she had indulged in instigating of parents, students causing indiscipline in the school.

The case of the dismissed teacher/writ petitioner before the writ court was that order of dismissal has been passed without holding any enquiry and opportunity of hearing, as such the order of termination impugned therein is liable to be set aside in view of violation of principle of natural justice.

The case of the appellant/institution was that the service of the petitioner has been dispensed with under the provisions of Regulation 23 of Code of Anglo Indian Schools (hereinafter referred to as the ''Code''). Rule 23 of the Code reads :

"23. Termination of appointment of confirmed staff :-

The service of a confirmed member of staff may be terminated with three months'' notice on either side or by the payment of three months'' salary by either party in lieu of notice with adequate reasons being assigned by either party, provided that in the case of termination of the service of a confirmed member of staff by a school, the school shall pay the member an amount calculated at the rate of half a month''s salary for each completed year of service upto a maximum of 10 months'' salary in addition to Provident Fund and Gratuity as accrued."

According to Rule 23 quoted above, before termination of service of a confirmed staff it is mandatory for the school authority (a) to pay three months'' notice or pay of three months'' salary in lieu thereof; and (b) provide adequate reasons in the order of termination.

The order of termination of the appellant herein reads:-

"To 02.7.2015

Ms. Naaz Khan Singh,

B/46/EH/3, Gora Chand Road, (2nd Floor),

Kolkata-700014.

Sub : Letter of termination of service

Madam,

Reference is made to our letter dated 29.6.2015. It is amply clear that despite sufficient opportunity that has been given to you to answer charges, you have failed to answer satisfactorily.

In view of this it is regretted to inform you that your service in our school is hereby terminated and your name is struck off the strength of our school with immediate effect.

As per code of regulations of Anglo Indian Schools a cheque bearing sl. No.350198 dated 02.07.2015 for Rupees 59,246/- (Rupees Fifty nine thousand Two hundred Forty six) only issued in your favour drawn on Axis Bank Ltd., CIT Road Kolkata-14, for three months salary is enclosed.

(Mr. R.A. Raymond)

Enclosure : cheque as above Managing Trustees & Administrator"

The letter dated 29.6.2015 is appended as annexure P12 wherein the alleged reasons have been provided for her termination which is reproduced for ready reference :-

"Ms. Naaz Khan Singh, 29.6.2015

B/46/EH/3, Gora Chand Road, (2nd Floor),

Kolkata-700104.

Madam,

Please refer to your letter dated 24.6.2015 in reply to an explanation called for vide our letter dated 18.6.2015.

The validity of your M.Com certificate was not questioned earlier and so same was forwarded to the D.I. office for enhancement of D.A. to post graduate scale. It has not come to light that certificates issued by Shobhit University distance learning programmes from 2014 onwards is invalid and therefore your M.Com certificate issued in March 2014 is invalid. I would further put on record that as per your letter your filled up your form for the M.Com Examination in the month of November 2013 and completed your examination in the month of March 2014 which makes me astouned at the fact that you completed a two year degree course in a span of 4 to 5 months and attained the said degree in so short a time. This itself places Shobhit University in a questionable position and its credibility needs to be ascertained this improbability of issuing a degree instantly renders the same to be questionable and this anomaly on the part of Shobhit University may be one of the reasons for UGC to deem Shobhit University as invalid and unrecognised so I would pertinently as you as to why your degree issued by this university should be ''valid in the eye of law'' as stated in paragraph 1 of your letter.

The Teachers Training Certificate Course in the year 2005 issued by the Council for the Indian School Certificate Examination is not in any way equivalent to a B.Ed degree course as this course was not done under any University as the Council is not affiliated to any University. Under these circumstances your certificate is not a degree attained from a recognised University. The Council for the Indian School Certificate Examination is an Examination body for the school level and is in no position to issue a professional degree as the same has been conveyed to us by the Council. Further your statement contradicts itself as on one hand you claim that you have passed the Teachers Training Certificate Course from the Council for the Indian School Certificate Examination which according to you is equivalent to a degree course, but at the same time you pursued your B.Ed for the second time from Jodhpur University. In this connection I would again require you to explain as to what made you pursue the same B.Ed Degree from a University when you are confident about the validity of your B.Ed from the Council which according to you enables you to draw Government D.A as a trained teacher. The then principal who according to your letter requested you to pursue your B.Ed clearly shows that your B.Ed certificate from the Council for Indian School Certificate Examination was unsatisfactory and unacceptable.

What further offends and surprises me is that you have falsely charged me of printing your qualification in the School Diary after having disclosed your qualifications to me. This is a false allegation and I take exception to the same. For your information, I have got evidence that Mr. Kaushik Kr. Singh the then Headmaster who is presently suspended had approved of the matter to be printed in the School Diary and had never consulted me on any matter to be printed in the School Diary. The entire onus of any misinformation or error in the School Diary falls on Mr. Kaushik Kr. Singh the suspended Headmaster. The very fact that you have not yet submitted your B. Ed. Degree from Jodhpur University till date is unacceptable as the same is confirmed is your letter that you will produce your B.Ed. Marksheet when it will be available to you. In the light of all these anomalies it does not deter me to reiterate that you took full advantage of the position of the then Headmaster Mr. Kaushik Kr. Singh and had your qualifications printed in the School Diary without having procured the same. This act of yours has caused incalculable damage to the reputation of the School which has reflected adversary on other teachers of the School as well.

You have not submitted your Admit Card till date for any of the degree courses as instructed by me in my letter dated 18th June, 2015. You have failed to comply to the same which creates a further doubt as to whether you did appear for the said examinations or not.

Your reiteration and repetition that your degree from Shobhit University being ''valid'' is a matter of further question as according to you your academic qualification does not require approval from AICTE as it does not come under Technical education, yet, it is surprising that you attained the M.Com. Degree under Shobhit University and from an Institute of Engineering and Technology.

You have vehemently stated in your letter that I have malafide intentions to put you in trouble and made false allegations against you, I take strict note of your uncalled for statement for which I strongly put you to task on grounds of "insubordination" and for suppressing and concealing true facts I charge you with "Gross Misconduct". The severest disciplinary action will be initiated against you which may even amount to dismissal from service without reference to the general normal procedure in vogue.

I will be placing this letter along with your letters of explanation dated 17.6.2015 and 24.6.2015 before the Managing Committee for necessary action.

Please acknowledge receipt of this letter.

(Mr. R. A. Raymond)

Managing Trustee & Administrator"

It appears from the letter dated 29.6.2015 that an exchange of correspondence between the parties before the letter dated 2.7.2015 quoted above was issued. The seeds of dispute appear in letter dated 15.5.2015 which is appended as annexure P6. Subject matter of this letter was "serious charges levelled against you for instigating innocent children and parents and loudly agitating inside the school premises & Administrator''s office". The content of the letter reads:

"Mrs. Naaz Khan Singh,

The school hereby informs you that there is a heinous charge against you for inciting innocent children and parents, shouting inside the school office rooms, class rooms and disrupting grossly the smooth running of the school on 11.5.2015 at 10. Children in the class rooms were shocked and in panic. In addition, you instigate your girls and through them you lodged a false complaint of molestation against one of our innocent staff members. CCTV footage shows that you ... the agitated children and parents and disrupted the congenial atmosphere of the school grossly. The said footage as evidence is kept in save mode which shows the allegation as true. We are surprised to note that you did not attend school nor signed the register but came with the intention to disrupt the peace of the school which is very evident as you did not attend school at 7:15 a.m. which is required for you to do so.

You are hereby asked to furnish a reply within 72 hours from date as to why these charges are levelled against you and as per our cctv footage necessary action shall not be taken against you.

If we do not receive any reply from your end, the matter will be considered and initiated in your absence, ex parte which please note."

In reply to the letter dated 15.5.2015 above, the writ petitioner by her letter dated 16.5.2015 has stated that on 11.5.2015 when she came to school at about 7.45 a.m., she saw many guardians along with their wards agitating before the school gate against the illegal order of suspension of the headmaster of the school, who is her husband and who was the writ petitioner in the connected writ petition being W.P. no.22582(W) of 2016. Seeing the agitation, she had returned to her residence that she had been informed by the darwan by telephone, to come to the school and in response to this she returned to school at 9.20 a.m. on 11.5.2015 and she went to the Administrative office. Therefore, there is no question of any shouting inside the school premises and classroom.

She also denied in her aforesaid letter that there was any CCTV footage showing her shouting and agitating or doing any act as alleged.

The Writ Court in the writ petition being W.P.22594(W) of 2016 in the case of Naaz Khan Singh & ors. Vs. State of West Bengal & ors. after appreciating Regulations 23 and 24 of the Code held : " On perusal of the provision of Regulation 23, it reflects that the service of a confirmed member of staff can be terminated with three months'' notice on either side or by the payment of three months'' salary by either party in lieu of notice with ''adequate reasons'' to be assigned by either party. Thus for dispensing with the holding of an enquiry as required under regulation 24 adequate reasons are to be assigned but on perusal of the order of dismissal, it reflects that no adequate reasons have been assigned prior to the passing of the dismissal order. Further the aforesaid Regulation no.23 also provides that the school shall pay to the member of the staff an amount calculated at the rate of half a month''s salary in addition to Provident Fund and Gratuity as accrued. But admittedly only the amount of Rs.59,246 has not been paid without disclosing the calculations as to how the authorities had arrived at that amount and further the provident fund or gratuity has been paid which is accrued to the petitioner prior till the date of the order of dismissal. Thus, the Regulation 23 of the Code has also not been adhere to while passing of the order of dismissal.

In view of the above, the order of dismissal dated 2nd July, 2015 has been passed in an arbitrary manner and in violation of provisions of regulations as well as principle of natural justice. The same is hereby quashed.

The writ petition is allowed."

The learned Counsel for the appellant/ institution would argue that as regards the respondent/ writ petitioner in this appeal is concerned, no enquiry was necessary as there was no charge was levelled against her, as such no reason was given in the order of her termination.

He has cited a decision rendered in K.K. Saxena Vs. International Commission on Irrigation and Drainage & others, 2015(4) S.C.C. 670, in support of his case.

It is apparent from the letter dated 15.5.2015 that the petitioner/respondent herein had been charged with "serious" and "heinous" conduct. It also appears that full payment of her dues has not been made to her by the School Management, as per Regulation 23 of the Code and her service having been terminated in violation of the Regulation 24, the appellant on second thought charged her of having obtained the service in the institution as assistant teacher on the basis of a fraudulent educational certificate, her M.Com. and her B.Ed. degrees were from an unrecognised institution. It also appears from the reply dated 17.6.2015 to the letter dated 16.6.2015 of the institution about the charges to her educational qualification, her parawise stand was:- " 1. With reference to paragraph No-1 of your letter dated 16-06-2015, I say that I passed M. Com examination from Shobhit University in the month of May 2014 and this University has been established under Section 3 of UGC Act 1956 and the Post Graduate Degree issued by this University is accepted by the Education Department of West Bengal Govt. After obtaining M. Com degree from Shobhit University, I submitted my degree before the then Principal, Mrs. Selma Imam from granting Post Graduate Scale of pay.

I say that according to the provision of rule, the then Principal forwarded my M. Com degree before D.I. of school (S.E.) Kolkata for granting post graduate Scale of pay as I have been enjoying Govt. D. A. since 2006. It is pertinent to mention that you yourself attested my mark sheet of M. Com examination at the time of recommending for post graduate scale of pay before D.I of the School. So it is not correct that I have not submitted my M. Com mark sheet after repeated request. However, I have again submitted my M. Com. mark sheet to you on 16-06-2015 according to your desire.

With reference to paragraph 2 of your letter dated 16-06-2015, I say that I have passed M. Com B.Ed degree before the month of October 2014 and school diary was published in the month of April 2015, so Mr. K. K. Singh has rightly printed my qualification as M.Com B. Ed degree against my name. I further say that there is no dispute regarding my M. Com degree Post Graduate degree has been verified by the Education Department, the Govt. of West Bengal, as a result the D.I office has released post graduate scale of pay and issued approval with post graduate degree, so your allegation regarding fake degree of M. Com issued by Shobhit University is not at all correct. I further say that you have declared Shobhit University is not recognised by UGC in your letter dated 16-06-2015 with out any valid document which is not only illegal but also contrary to the decision of D.I. of schools (SE) Kolkata.

With reference to paragraph 3 of your letter dated 16-6-2015, I say that I have completed my B.Ed. degree in the year 2014 from Jodhpur University as would appear from internet and I could not collect my B.Ed. mark sheet as I was busy with school affairs and I have wrote a letter to the registrar of the university to send my mark sheet and I will produce the same when it will be available.

So there is no hide and seek regarding my degree which has been printed in school diary and I am enjoying Govt. D.A. from State Govt. according to my qualification so all degree are genuine and valid.

In this circumstances, you are requested to withdraw your letter dated 16- 06-2015 as I have explained all your queries with valid reasons. I hope you will be satisfied to my explanation of your queries and I will be highly oblige if you withdraw your letter dated 16-06-2015 and allow me to continue my work peacefully."

Counsel for the respondent argued that the foundation and the motive in the letter dated 15.5.2015 is that no enquiry admittedly has been held. The writ petitioner has not been granted any opportunity of hearing and any reasonable person on the basis of the report and also on the basis of the fact would come to the conclusion that termination of the respondent/writ petitioner was illegal. The motive was shrouded and camouflaged in the order of termination.

It appears from the letter dated 17th July, 2015 that a cheque amounting to Rs.1,26,886/- has been paid to the writ petitioner/respondent and the respondent/writ petitioner received the same under protest.

We may point out here at this stage that in the order dated 9.12.2016 the Court has inadvertently stated that - " Considering the fact that the three months salary has already been accepted by the writ petitioner unconditionally and even without reserving her right to approach the court for ventilation of her grievances, we stay the operation of the impugned order till the end of January, 2017."

It appears from record that word ''unconditionally'' is an inadvertent typing mistake as the record shows that amount was accepted by her under protest.

Counsel for the appellant in support of his case cited the decision in the case of K. K. Saksena Vs. International Commission on Irrigation and Drainage and others, reported in (2015) 4 S.C.C. 670, paragraphs 3 to 49. Perusal of the said paragraphs relied upon by the learned Advocate for the appellants clearly shows that the judgement is clearly distinguishable. In that case the employee appears to be a workman to whom the provident fund had been paid, but in the instant case the provident fund has admittedly not been paid to the teacher concerned, who is not a workman, but a teacher at the time of termination of her service by the institution. That case being under the Industrial Disputes Act which is a special Act for resolving industrial disputes between an employer and a workman is not applicable to the facts and circumstances of this case, particularly when the appointment and superannuation of a permanent staff in an Anglo Indian School is governed by the Regulations framed as Code of Anglo Indian School.

Reliance has also been placed by the learned Advocate for the appellant relying upon a judgement rendered by the Apex Court in the case of Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre For Basic Sciences, Calcutta and others, reported in (1999) 3 S.C.C. 60. The relevant paragraph 21 reads:- "21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as ''founded'' on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."

Admittedly, this case pertains to the question as to whether termination of service of the petitioner was punitive or simplicitor? It is in that context that observation has been made in paragraph 21 of the judgement quoted above Law on probation i.e. termination of service during or in course of employment is different from the service of a confirmed employee of an educational institution, to whom aforesaid a separate Code applies, wherein specific procedure for termination of service is provided under Regulations 23 and 24 of the Code. The Government of West Bengal, Education Department, Secondary Branch by notification dated 24.12.1993, notified the school for the purpose of payment of dearness allowance to the staff of the school and as such, the contention of the appellant that writ petition was not maintainable, is without substance. Suffice it to say that the teachers and staff who are provided D.A. by the Government through the school and whose terms and conditions notified by the State Government fall under Article 12 of the Constitution.

Lastly, the Counsel for the appellant has relied upon a decision reported in 2015(2) C.H.N. (Cal) 464 in the case of Md. Harul Al Rasid Vs. Union of India. The relevant paragraph 14 of the judgement is quoted below :- "14. Thus, it is evident that in case of service jurisprudence a delinquent would not be entitled to be reinstated as a matter of right if the disciplinary proceedings have been quashed due to technicalities and a defective enquiry. If the enquiry is to be started de novo the delinquent would not be entitled to be reinstated. This would be more so when an employee is placed under suspension pending the enquiry and the enquiry held against him has been set aside for irregularities or because of a procedural defect. The Court may opine whether the enquiry should either start de novo or from the point at which the defect occurred, depending on the service rules applicable. However, the employee would be placed in the same position that he was before the order of punishment was imposed on him, that is, he would still continue under suspension. If the service rules applicable to an employee warrant the reinstatement of the employee in service due to a defective enquiry, the Court would not hesitate in reinstating him unless as the Supreme Court has observed, the charge against the delinquent is of such magnitude and the gravity of the misconduct does not warrant the reinstatement of the delinquent in service during the pendency of the enquiry. This is because the Court has to balance all factors and determine whether it would be in the interest of justice and better administration to reinstate the employee while the disciplinary enquiry proceeds de novo or from the point at which it was vitiated."

The case cited by the learned Counsel for the appellant is also clearly distinguishable and do not apply to the facts and circumstances of the present case. Perusal of the case shows that in that case enquiry had been initiated against the delinquent employee and was pending. The Court directed for de novo enquiry from the point at which the defect occurred depending on the service rules applicable.

We may again notice that in the instant case no enquiry whatsoever has been held and therefore, no direction can be given for de novo enquiry.

In view of above, the cases cited by the learned Counsel for the appellant are not applicable for the reasons given by us in the judgement, which are clearly distinguishable on facts and law from the instant case.

Therefore, we do not find any illegality and infirmity in the order passed by the impugned judgement and order passed by the learned Single Judge. The order of termination of the respondent/writ petitioner has rightly been quashed.

Accordingly, the application for stay being C.A.N. 11851 of 2016 as well as the appeal is dismissed.

The appellant is directed to comply with the direction of reinstatement of service of the writ petitioner/respondent forthwith with continuity of her service from the date of her termination upto the date of her joining in the institution. She will be permitted by the Administrator to join the institution from 14.2.2017 as she is going to school and putting her signature. She will be permitted to take her classes as usual without any further punitive action. The petitioner shall also be paid her 75% backwages. In the facts and circumstances the amount already paid to the petitioner, that shall be adjusted in the part of her salary which is allowed under the order of this Court.

Oral prayer has been made by the learned Advocate for the appellant for staying the operation of this order. We find that the action of the appellant is malafide and not in consonance with the rules, therefore, we do not find any merit for staying our order. Accordingly, the prayer for stay is rejected.

No order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on usual undertakings.