Lakshman Chandra Paul vs State Of West Bengal & Ors

Rajasekhar Mantha, J

The Court : The writ petitioner challenges the continuation of the departmental proceedings against him since the permission granted by the West

Bengal Board of Secondary Education for initiation thereof is dated September 22, 2017. The petitioner superannuated from service of the School on

July 31, 2017.

The brief facts of the case are that a show cause notice was issued to the petitioner on May 9, 2016, alleging that during his tenure as Teacher-in-

Charge of Pochra Bhagaban Mahabir Digambar Jain Smarak High School, Paschim Burdwan, he did not maintain books of accounts and was

responsible for financial irregularities.

The writ petitioner approached this Hon’ble Court against the show cause notice and a proposal for holding departmental proceeding dated May 9,

2016.

A practising Advocate of the Asansol Court was appointed as the Enquiry officer. Such appointment of an Advocate as the Enquiry officer was

struck down vide order of a co-ordinate Bench of this Court, dated January 17, 2017, passed in W.P. No.245(W) of 2017.

Thereafter, a Head Master of another school was appointed the Enquiry Officer, which was again challenged before this Court on, inter alia, the

ground that the permission of the West Bengal Board of Secondary Education was not taken to initiate the departmental proceeding.

By an order dated April 4, 2017, passed by another co-ordinate Bench of this Court in W.P. No.5874(W) of 2017, the appointment of the second

Enquiry Officer was also set aside and the School was asked to approach the Board for permission to initiate the departmental proceedings. In the

meantime, the petitioner superannuated from service on July 31, 2017.

The Board gave permission to the School to initiate the departmental proceeding after giving due hearing to the School as well as the writ petitioner, on

September 22, 2017.

Counsel for the petitioner would argue before this Court that since as on the date of grant of the permission to initiate the departmental proceeding, the

writ petitioner was not in service, there was no master-servant relationship existing and hence the permission had become infructuous and the School

could not initiate the proceeding against the writ petitioner. He further submits that the provident fund dues of the petitioner have been released by the

School and also a “no due certificateâ€​ has been issued.

This Court notes that in W.P. No.13 of 2018, being the third proceeding prior to the instant one filed by the petitioner, vide an order dated May 14,

2018, a co-ordinate Bench of this Court had directed release of the provident fund dues as well as the provisional pension from June 2018 to the

petitioner. The said writ petition is stated to be pending.

What is relevant for this Court’s consideratrion is the fact that at the time when the departmental proceedings were contemplated and an Enquiry

officer was appointed for the first time, the writ petitioner was very much in service. A departmental proceeding is generally initiated either by

issuance of a show cause notice or a chargesheet or appointment of an Enquiry Officer. Since the Enquiry Officer was appointed and the permission

of the Board was sought at the direction of this Court, it cannot be said that the proceeding had been initiated after the cessation of the master-servant

relations between the petitioner and the School.

Counsel for the petitioner would further argue that while by invoking the applicable rules of the Board the show cause notice was to have been issued

to the petitioner after receipt of the permission from the Board, the petitioner was issued the show cause notice prior to receipt of such permission.

This Court is of the view that the same becomes irrelevant since at various stages since the School had decided to initiate the departmental proceeding

against the petitioner, there has been invervention by this Court at the instance of the petitioner. The petitioner cannot take advantage of the time spent

in the judicial proceedings and the time taken by the Board to grant permission as aforesaid.

Be that as it may, at the risk of repetition, it is stated that since the decision to initiate the departmental proceeding and initiation thereof, albeit set

aside by this Court (appointment of Enquiry officer), the proceeding must be deemed to have been initiated during the petitioner’s service.

Counsel for the School submits that the enquiry has since been completed and in terms of the rules the entire file has been referred to the West

Bengal Board of Secondary Education and the Director of School Education, who are to take steps in accordance with the applicable rules.

In those circumstances, the West Bengal Board of Secondary Education and/or the Commissioner of School Education shall take a suitable decision

on the School’s proposal as regards the enquiry conducted and completed, within a period of three weeks from the date of receipt of a copy of

this order and communicate the same to the School. The School shall be entitled to take enquiry to a logical conclusion and take all the consequential

measures thereafter.

With the aforesaid directions, the writ petition stands disposed of. There will be no order as to costs.

Urgent photostat certified copies of this order, if applied for, be supplied to the parties subject to their compliance with all the requisite formalities.