Dipak Kumar Pradhan & Ors vs State Of West Bengal & Ors

Protik Prakash Banerjee, J

This is a writ petition under Article 226 of the Constitution of India by which several writ petitioners have joined to challenge almost identical decision of the respondent school managing committee and/or headmaster by which on June 27, 2013 punishment was imposed on such petitioners pursuant to the order of the Administrator being no.023 and 024 dated 24.05.2013 and 27.05,2013 respectively which were alleged to be pursuant to the relevant Government Orders. Initially there were 12 petitioners but since one of the petitioners chose to appear through a separate learned Advocate I detagged the matter and dismissed the writ petition as against him, being the petitioner no.5. The other petitioners have put in deficit Court fees as submitted by Mr. Soumen Dutta, learned Advocate for the petitioners and I granted them leave to join their separate causes of action in the present writ petition. During hearing Mr. Dutta abandoned the handwritten correction to prayer (a) challenging the Memorandum Memorandum No. 1256-F(P) dated 18th February, 2013.

Very briefly the genesis of this writ petition lies in Memorandum No. 1256-F(P) dated 18th February, 2013 issued by the Secretary to the Government of West Bengal which states as follows:-

"All actions in terms of the order should be completed by 31st March, 2013. Compliance report on the action taken should be sent to the Finance Department."

It is an admitted position that on February 20, 2013 the petitioners did not attend their duties at Contai K.M. Bidyabhaban. It is also admitted that subsequently each of the petitioners applied for casual leave. The petitioners therefore were held to be in violation of the said Government Orders and notices to show cause were issued to them. These notices are appearing at page nos.38 to 60 of the writ petition. The notices were dated 18th March, 2013 and gave the petitioners 15 days time from the receipt of the letter to show cause. The affidavit-in-opposition of the respondents no.4 and 5, being the school authorities, clearly show that they sent their proceedings for approval to the Board in terms of Annexure R-5. Annexure R-5 at page 25 of affidavit-in-opposition of the respondent no.4 and 5 shows that the Board had been written to by the Administrator of the School by a letter dated 16th April, 2013 contrary to the allegations contained in paragraph 5(vii) of the affidavit-in-opposition. The Board did not approve any action. For the sake of convenience the contents of paragraph 5(vii) are set out hereinbelow:-

"That the Memo of proposed action to be taken by the school authority was sent to the Board for their approval and after getting their approval only on 29.04.2013 the action was taken against the absentees.

The memo seeking approval and the approval granted by the Board are annexed hereto and marked with letter 'R-5' collectively."

However, the reply of the Board dated April 29, 2013 at page 27 of the opposition clearly shows that the Board has said it has nothing to do with the matter.

"In response to the above application the relevant department has informed that as no order/circular regarding the absentee teachers on 20.02.2013 in the school was issued from Board's end, the decision to be taken in this regard by the M.C. of the school is final."

Whatever way I look at it is clear the decision dated June 27, 2013 or orders of the Administrator dated May 24, 2013 and May 27, 2013 referred to therein and even the recourse of the Board on which the respondents no.4 and 5 have relied on to try and explain their non-compliance with the time schedule given in the Memorandum dated February 18, 2013 are all beyond March 31, 2013 and therefore do not even on their face show that compliance was made with the mandatory provisions of the Memorandum.

This shows that the Administrator made a show of complying with the order of the Government when really by deliberate delay it allowed the petitioners to take the point of non-compliance of the mandatory provisions of the said Memorandum dated February 18, 2013.

Even though a subsidiary question was raised by Mr. Dutta that the petitioners have a right to casual leave which is disputed by the State, I have chosen not to go into this question because the case can be decided on one simple point whether non-compliance with mandatory time schedule would render the disciplinary proceeding invalid once the Board has held that it has nothing to do with the matter and the decision of the Managing Committee is final. The only source of power to take action against the petitioners is the said Memorandum dated February 18, 2013 read with Memorandum dated March 6, 2012 which also clearly states what is the punishment to be given in the event the cause shown by the absentee is not satisfactory. This is at page 20 of the affidavit-in-opposition being Annexure R-1. Therefore even though the same is not a statute it has the same force of law which binds the Administrator of the School and the Managing Committee since the Administrator, Managing Committee and Headmaster of the school are purporting to act as creatures who are bound by the said Memorandum dated February 18, 2013 read with Memorandum dated March 6, 2012. The must act as prescribed therein, i.e. to say in the same manner as prescribed therein and/or not at all, and any other mode of acting is to be held as necessary forbidden. This is a species of procedural ultra vires which has been raised by the petitioners in the eye of law.

The learned advocate for the School could not explain the satisfaction of the Court why the delay had occurred except to submit that all steps had been taken by his client within March 31, 2013 but has stated in the opposition it was the delayed reply of the Board on April 29, 2013 which led to the delay. However, as I have already recorded above even the first recourse to the Board was made on April 16, 2013 as appears from Annexure R-5 at page 25 of the opposition. Therefore on the face of the record the disciplinary proceeding under a special Memorandum beyond the time delimited by it and the punishment was also imposed beyond the time limited by it. It is thus wholly without jurisdiction and is quashed by way of judicial review. The amount of money deducted shall consequentially be refunded to the petitioners within a period of fortnight from the date of communication of this order.

The writ petition is thus allowed.

There shall be no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.