Bhushan Gupta vs State Of Assam And Ors

Heard Mr. B Purkayastha, learned counsel for the petitioner, Mr. B Kaushik, learned standing counsel for the Elementary Education Department of

the Government of Assam and Mr. B.J Ghosh, learned counsel for the respondent No.6 Smti Ratna Suklabaidya.

The respondent No.6 Smti Ratna Suklabaidya is the Headmistress of Brahmanshashan MV School under the North Karimganj Block in the

Karimganj district and she was placed under suspension by an order dated 15.02.2020 of the Director of Elementary Education, Assam. Smti Ratna

Suklabaidya assailed the order of suspension before this Court in WP(C) No.2622/2020, wherein by the judgment dated 14.10.2020, the suspension

was interfered and Smti Ratna Suklabaidya was required to be reinstated in service. A reading of the judgment of 14.10.2020 goes to show that the

requirement of paragraph 21 of the pronouncement of the Hon’ble Supreme Court in Ajay Kumar Choudhary vs- Union of India, reported in

(2015) 7 SCC 291 was not satisfied in respect of the suspension of Smti Ratna Suklabaidya and therefore, she was ordered to be reinstated. On being

reinstated by the order of 23.10.2020, the Director of Elementary Education, Assam passed the consequential order reinstating Smti Ratna

Suklabaidya as the Headmistress of Brahmanshashan MV School.

The present writ petition is being instituted by the School Managing Committee of Brahmanshashan MV School. According to the petitioner, the

respondent No.6 Smti Ratna Suklabaidya was placed under suspension on a complaint being lodged by the School Managing Committee as regards

misappropriation of certain school funds. According to the petitioner, there is a strong apprehension in the mind of the School Managing Committee as

well as others involved in the school that reinstating the respondent No.6 Smti Ratna Suklabaidya as the Headmistress of the school may adversely

affect the departmental proceeding that is contemplated against her. In fact, the order of reinstatement dated 23.10.2020 also provides that Smti Ratna

Suklabaidya had been reinstated in the post of Headmistress pending drawl of a departmental proceeding.

Mr. BJ Ghosh, learned counsel for the respondent No.6 Smti Ratna Suklabaidya has raised an objection that the writ petitioner herein is Sri

Bhushan Gupta, who has approached the Court on his individual capacity. Mr. Ghosh by relying upon the pronouncement of this Court in Sanjay

Kumar Sharma and another â€"vs- Union of India and Another, reported in (2020) 6 GLR 72 has raised an objection that a writ of mandamus cannot

be sought by an individual person unless the person concerned represents the group or authority who otherwise would have locus-standi to seek for a

writ of mandamus.

In the instant case, we have taken note that the judgment relied upon by the respondent No.6 pertains to a writ where a mandamus was sought for

by the Directors of a Company for not being considered as its qualified Directors and the said mandamus was refused on a conclusion being arrived

that there was no legal right of the petitioner in the said writ petition which was violated.

In the instant case, the facts of the case can be differentiated to the extent that it is the writ petitioner through the SMC, who along with the SMC

had raised a complaint of misappropriation against the respondent No.6 and if the same respondent No.6 is now reinstated back to her original post,

there is an apprehension that the respondent No.6 may influence the enquiry and the proceeding to be initiated against her. From the said point of

view, it cannot be said that the writ petitioner has no legal right to approach the Court for ventilating their grievance. As the respondent No.6 Smti

Ratna Suklabaidya has been reinstated pursuant to the provision of Hon’ble Supreme Court in paragraph 21 of Ajay Kumar Choudhary(supra), we

take note of that in the same provision itself the Supreme Court had also provided that upon the person concerned being reinstated, the Government

may also prohibit him from contacting any person or handling any record or document till the stage of his preparation of defence. It was also provided

that upon the person being reinstated, the Government is free to transfer the person to any Department in any of its offices within or outside the State

so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. Paragraph 21 of

Ajay Kumar Choudhary(supra) is extracted below:-

“21. We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the

Memorandum of Charges/Charge sheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Charge sheet is

served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the

concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may

have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any

person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the

universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in

the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to

set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and

would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal

investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.â€​

In view of the aforesaid provisions of the Supreme Court in Ajay Kumar Choudhary (supra), we are of the view that it would also incumbent upon

the State authority while reinstating a person after suspension pursuant to paragraph 21 of Ajay Kumar Choudhary (supra) to take a call and pass a

reasoned order as to whether the person concerned may influence the progress of the proceeding or enquiry to be initiated against him/her.

In the instant case, we have taken note that the record does not reveal that the Director of Elementary Education, Assam has passed a reasoned

order as to whether the reinstatement of the respondent No.6 as the Headmistress of the concerned school would adversely affect the progress of the

enquiry and proceeding. All that we have taken note is the District Elementary Education Officer, Karimganj in the order of 06.01.2021 had merely

provided that the respondent No.6 Smti Ratna Suklabaidya will act as the Headmistress and maintain discipline, punctuality and academic affairs of

the Brahmansashan MV School. The said provision would be insufficient as regards a decision being taken as to whether upon being reinstated on the

same post, the person concerned may influence the progress of the departmental enquiry and proceeding.

In view of the above, we require the writ petitioner through the School Managing Committee of the school to submit a representation before the

Director of Elementary Education, Assam highlighting as to in what manner the respondent No.6 may influence the departmental enquiry and

proceeding. In the event, any such representation is submitted, the Director shall pass a reasoned order thereon specifically arriving at his conclusion

as to whether there is any apprehension that the respondent No.6 may interfere with the progress of the enquiry and proceeding. For deciding the

representation, the Director may also give a hearing to the respondent No.6 Smti Ratna Suklabaidya.

The reasoned order be passed by the Director within a period of fifteen days from the date of submission of the representation by the petitioner. In

the event, no order is passed by the Director within fifteen days from submission of the representation, the respondent No.6 shall not continue as the

Headmistress of the concerned school.

The writ petition is disposed of in the above terms.