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Dr. A.K. Chakravarthy Vs. Jagannath Kishore College and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1982)IILLJ427Cal
AppellantDr. A.K. Chakravarthy
RespondentJagannath Kishore College and ors.
Cases ReferredUnion of India v. S.N. Chatterjee and Ors.
Excerpt:
- bankim chandra ray, j.1. the petitioner who is the principal of jagannath kishore college, purulia, had challenged in this writ petition the order of suspension as well as the charge-sheet contained in the resolution of the meeting of the governing body of the said college held on 31-1-81 as well as the second charge-sheet sent to the petitioner by a letter dated 28-4-81 on the grounds that the said charge-sheets were vitiated by closed mind, bias and the second charge-sheet was contrary to the charge-sheet served early.2. the facts of the case, in short, are as follows :the petitioner was appointed as the principal of the jagannath kishore college, purulia, which is a government-sponsored-college against a permanent vacancy on 1st of december, 1978. the term of appointment were that he.....
Judgment:

Bankim Chandra Ray, J.

1. The petitioner who is the Principal of Jagannath Kishore College, Purulia, had challenged in this writ petition the order of suspension as well as the charge-sheet contained in the resolution of the meeting of the governing body of the said college held on 31-1-81 as well as the second charge-sheet sent to the petitioner by a letter dated 28-4-81 on the grounds that the said charge-sheets were vitiated by closed mind, bias and the second charge-sheet was contrary to the charge-sheet served early.

2. The facts of the case, in short, are as follows :

The petitioner was appointed as the Principal of the Jagannath Kishore College, Purulia, which is a Government-sponsored-College against a permanent vacancy on 1st of December, 1978. The term of appointment were that he would remain Principal for one year with effect from the date of his joining the post on probation and confirmation and other conditions of his service would be guided by the West Bengal College Teachers (Security of Service) Act, 1975 and the rules framed thereunder in addition to the Government Orders and Statutes/Regulations/Rules/Ordinances, Act of the University of Burdwan. The college is affiliated to the University of Burdwan. The governing body of the college was reconstituted on 27th December, 1978 and the petitioner as Principal was the Ex-Officio Secretary of the Governing Body. The college, being a Government-sponsored college, is governed by the terms and conditions of a sponsored college as an approved in Government Order No. 1173-Edn/4C-147/56 dated 31st October, 1956, a copy of which is annexed as Annexure 'A' to the petition. In accordance with the said rules the Principal of the college is the Chief Administrative officer and drawing and disbursing Officer of the said college. In contravention of the rules of the governing body some members of the governing body of the said college attempted to convene a meeting of the governing body of the said college on requisition and this matter was referred to the Director of Public Instruction, Government of West Bengal, on 23rd April, 1980 for his opinion and necessary action. Instead of giving any opinion or direction and clarification in this matter the Director of Public Instruction sought an explanation from the petitioner on 23rd June, 1980, The petitioner gave a reply to the same, On 24th of December, 1980, the Director of Public Instruction, Government of West Bengal, requested the petitioner to convene a meeting of the Governing Body of the said college in order to enable several important matters relating to the college to be discussed. It has also been stated in the said letter that the Government will depute an officer of the Education Directorate who will be present at the meeting of the governing body as an observer. An ordinary meeting was convened on 31st January, 1981 by the petitioner and an observer was sent by the Government, to be present in the meeting and he participated in the deliberations of the meeting which was contrary to the provisions of the rules and regulations. In this meeting matters which were not in the agenda were discussed and it was decided to hold disciplinary proceeding against the petitioner and the petitioner was placed under temporary suspension-A committee was appointed to enquire into the charges mentioned therein against the petitioner. It was also resolved in the said meeting to serve a show-cause notice upon the petitioner mentioning the charges against him and show-cause notice was served on him in the said meeting, It has been pleaded that this Resolution of the Governing Body adopted in this meeting held on 31st January, 1981 is highly illegal and without jurisdiction as it in clear violation of the terms and conditions of the sponsored-college approved as contained in G.O. No. 1173-Edn/4C-147/56 dated 31-10-56. It has also been pleaded that the Resolution of the Governing Body placing the petitioner under temporary suspension and holding enquiry against him is in violation of the terms and conditions of the sponsored-college as amended under Rule 19 of the West Bengal Teachers (Security of Service) Act. 1975. It has also been stated that the said resolution adopted by the members of the Governing Body for initiating disciplinary proceeding against the petitioner is mala fide and violative of the provisions of the West Bengal College Teachers (Security of Service) Act, 1975 and the rules framed thereunder. It has been further submitted that the order of suspension is a penalty in accordance with provisions of the said Act and the said order of suspension is illegal as the same has been made without complying with the mandatory provisions of the said Act and the rules framed thereunder. It has also been pleaded that the first charge-sheet contained in the resolution dated 31st January, 1981 is vitiated by bias and closed mind. It has also been submitted that the second charge-sheet which was later served upon the petitioner by the letter dated 28th April, 1981 by the members of the Equiry Committee is illegal and bad as the same is contrary to the first charge-sheet and it is materially different from the first charge-sheet. Moreover, the said charge-sheet, it does not appear from the resolution of the Governing Body of the college which is the appointing authority of the petitioner was framed by the disciplinary authority and so it is also bad. It has also been submitted that the second charge-sheet was served in order fill up the lacuna in the resolution of the governing body and the charge-sheet framed against the petitioner in the meeting dated 31st January, 1981. The second charge-sheet is also motivated and mala fide. The second charge-sheet is annexed '3' to the petition. The petitioner sent a reply on receipt of the second charge-sheet that the second charge-sheet is contrary to the first charge-sheet and it is useless to send a reply to the first charge-sheet framed against him on 31st January, 1981. It has also been submitted that the charge - sheet proved the closed mind of the authority and as such it is not sustainable in law.

3. On these statements and allegations the instant rule was issued and there was an interim order to this extent that if any order of dismissal or discharge of service or any penal order is made the same shall not be given effect to until further orders and this interim order was initially made for a period of three weeks from the date of issuance of the Rule with liberty to pray extension of the said interim order on notice to the respondents. On 22nd of September. 1981, after hearing the learned advocates for the parties the interim order was modified to the extent that the college authorities may conclude the enquiry and pass the final order but such final order would not be given effect to until further order of this Court. The college authority was also directed to pay all arrears and current subsistence allowance to the petitioner.

4. Mr. D.K. Mukherjee, learned advocate appearing on behalf of the petitioner, has submitted that though the college is a sponsored college and it is not within the 'other authorities' in Article 12 of the Constitution of India still the instant writ application at the instance of the Principal against the show-cause notices and charge-sheet dated 31st January, 1981 and the charge-sheet dated 29th April, 1981 in accordance with the Annexures 'G' 'K' and 'J' to the petition is maintainable inasmuch as the petitioner has acquired a statutory status which purports to have been infringed and or threatned to be infringed by the impugned show-cause notice and charge-sheets. It has been submitted by Mr. Mukherjee that the terms and conditions of the petitioner's service are governed by the West Bengal College Teachers (Security of Service) Act, 1975 and this Act confers a status on the petitioner. The impugned order of suspension and initiation of disciplinary proceedings being made in violation of the provisions of the statute the Governing Body of the college is amenable to writ jurisdiction. Some decisions have been cited at the Bar in support of this submission. It has also been submitted by Mr. Mukherjee that the alternative remedy by way of appeal as provided in Section 12 of the said Act will not provide an appropriate relief to the petitioner as the Appellate Tribunal cannot go behind the findings arrived at by disciplinary authority. It has also been submitted that the impugned disciplinary proceeding is vitiated by non-observance of the principles of natural justice and as such this application before this Writ Court in maintainable. It has been thirdly submitted that the Enquiry Committee was not properly constituted as the members are biased against the petitioner and the enquiry to be held by such a body will violate the principles of natural justice inasmuch as justice must not only be done but must seem to have been done. On a look at the charge-sheet in Annexure 'D' it will be clear and evident that the said charge-sheet discloses the biased and closed mind of the diciplinary authority. Moreover, the members constituting the Enquiry Committee arc also biased against the petitioner and as such the enquiry by such a committee is contrary to the norms and principles of natural justice. The charge-sheet which is based on the closed mind of the disciplinary authority is liable to be quashed and set aside. It has been lastly submitted that the order of suspension made by the Governing Body at its meeting on 31st January, 1981 is punishment within the meaning of Section 8(4) of the West Bengal College Teachers (Security of Service) Act, 1975 and the same being made in disregard of the mandatory provisions of Sub-section (2) of Section 9 and Rule 7 of the West Bengal College ; Teachers (Security of Service) Rules, 1975 is illegal, arbitrary and bad as the said order of suspension was made without holding any enquiry as required by Rules 7 and 10 of the said Rules.

5. Mr. S.B. Bhunia, learned advocate appearing on behalf of the respondent Nos. 4 and 6 to 14 contended on the other hand that the petitioner had no lacus standi to maintain this writ application inasmuch as the said college being a sponsored-college is not a 'State' within the meaning of Article 12 of the Constitution of India and this writ application is not competent. It has been submitted that the issue of a writ against a non-statutory body amounts to overstepping the limits of the jurisdiction under Article 226 of the Constitution of India. It has been next contended by Mr. Bhunia that the remedy provided by Article 226 being a discretionary remedy, this jurisdiction should not be allowed to be invoked without exhausting the alternative statutory remedy provided by Section 12 of the said Act by preferring appeal against the order of disciplinary authority. Several decisions on this point have been cited at the Bar. It has also been submitted that in order to get reinstatement in service the only remedy left to the petitioner is to take recourse to the remedy provided by the statute by the statute by filing appeal and not by a writ petition before this Court as the writ Court cannot grant the remedy sought for in this writ petition. It has been thirdly contended by Mr. Bhunia that the petitioner has accepted subsistence allowance under the order of suspension and so he is debarred from challenging the same as not an order of suspension pending disciplinary proceeding under Section 11 of the Act and it cannot be assailed as a punishment under Section 9(1)(iv)of the Act. It has been submitted that the petitioner cannot approbate the reprobate It has also been submitted that the charge-sheet in Annexure 'J' to the petition is a charge-sheet and the contention of the petitioner that it is the second charge-sheet is totally unfounded. This charge sheet has been prepared in accordance with the provisions of Section 9(2) read with Rule 7 of Rules framed under the said Act and as such there has been no infringement of the provisions of the Act and the Rules framed thereunder in the framing of the charge-sheet and in serving the same on the petitioner. It has been further contended that the resolution of the governing body, dated 31st March, 1981 whereby the petitioner was placed under temporary suspension and was asked to show cause is not a charge-sheet but the petitioner was merely asked to show cause against the order of suspension. As such it has been submitted that the second charge-sheet cannot be contended to be bad being contrary to the earlier charge-sheet. It has been lastly submitted that as no objection has been raised by the petitioner as to the personnel of the Enquiry Committee immediately on the service of the order of suspension and the show-cause notice and thereafter on the inssuance of the charge-sheet; Annexure ' J' such an objection cannot be permitted to be raised at this stage when the enquiry has been completed and report has been submitted by the Enquiry Committee and disciplinary authority after consideration of the enquiry report in accordance with the permission given by this Court has come to a final decision and in fact passed a final order of termination of the petitioner's service, which, however, was not given effect to as permitted by this Court.

6. At the outset before considering the merits of the submissions made on behalf of the parties it is pertinent to deal with and dispose of the preliminary objections raised on behalf of the respondent to the competence of this writ application in this jurisdiction. Undoubtedly, the Jagannath Kishore College, Purulia, is a Government-Sponsored-College and in view of the decision made by this Court in the case of Kalpana Bishui v. State of West Bengal and Ors. reported in 85 CWN 1069, a writ application against this college is not maintainable as the Government-sponsored-college is not maintainable as the Government-sponsored-college is not an agency or instrumentality of the state and is not an 'authority' within the meaning of Article 12 of the Constitution of India. The next question interlinked is whether the instant writ application challenging the show-cause notice and the order of suspension adopted at the meeting of the Governing Body of the college on 31st January, 1981 as well as the second charge-sheet sent to the petitioner by a letter dated 21st April, 1981 by the members of the Enquiry Committee is maintainable in this jurisdiction. Similar question came up for consideration in the case of Kalpana Bishui v. State of West Bengal and Ors. (supra) and this Court held that a writ application against an order of the Governing body of the college is maintainable as it purports to affect the petitioner's legal rights conferred by the West Beagal College Teachers (Security of Service) Act, 1975 even though the Government- sponsored-college is not a statutory body or an agency of instrumentality of the State.

7. In this case undoubtedly the terms and conditions of service of the petitioner who is the Principal of the college is governed by the West Bengal College Teachers (Security of Service) Act, 19/5 (West Bengal Act XXXVI of 1975), and therefore, in my opinion, the instant writ application is maintainable. It has been submitted by Mr. Bhunia, learned advocate on behalf of the respondents, that this finding arrived at by this Court is not a correct finding and it requires to be reviewed inasmuch as this finding has been arrived at on reference to the decisions made in the case of Executive Committee of Vaish Degree College. Shamli and Ors. v. Lakshmi Narain and Ors. 1976-II L.L.J. 163 and Aley Ahmed Abidi v. District Inspector of Schools, Allahabad and Ors. in : AIR1977All539 . It has been submitted that the decision in 1976-II L.L.J. 163 is a mere obiter observation and there was no specific issue on the question as to the maintainability of the writ application against a non-statutory body for enforcement of rights conferred by statute or for infringement of mandatory obligations imposed by a statute. It has also been submitted that the observation made in : AIR1977All539 ) cannot also be relied upon because the said observations was made on the concession of the learned advocate for the respondent. It has been strenuously and very persuasively urged by Mr. Bhunia that no writ application is maintainable against a Government -sponsored-college even though there has been an infringement of the provisions of the West Bengal College Teachers (Security of Service) Act, 1975. In support of this , submission Mr. Bhunia has referred to a decision of the Supreme Court. I am unable to accept this submission of Mr. Bhunia in view of my findings arrived at in the earlier decision referred herein before and also for the reasons set out hereunder.

8. Before considering the legal position on this question it is appropriate to refer to the provisions of Article 226 of the Constitution of India:

226(1) Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

On a plain reading of the said provisions it is quite clear and evident that this writ jurisdiction of the High Court extends to the issuance of a writ not only to any authority including in appropriate cases any Government within the territories in relation to which this Court exercises jurisdiction but also to issue writ to any person within those territories notwithstanding the fact that the seat of the Government or the authority or the residence of such person is not within those territories if the cause of action, wholly or in part, arises within the territories in relation to which this Court exercises jurisdiction. The order of mandamus is of a most extensive remedial nature and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal requiring him or them to do some particular thing therein specified which pertains to him or their office and is in the nature of public duties. Its purpose is to remedy defect or to render justice: and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where, although there is an alternative legal remedy, yet. that remedy by way of redress is less convenient and eventual and effective (Para 89 III, Halsbury's Laws of England, 4th Edn.)'. 'The Order of mandamus will be granted ordering that to be done which a statute requires to be done, and for this rule to apply it is not necessary that the party or Corporation on whom the statutory duty is imposed should be a public official or an official body. (Para 99 Halsbury's Laws of England, Page 117)'. 'An order of mandamus is a command directed to any person, Corporation or inferior tribunal requiring them to do some particular thing which pertains to his or their office and is in the nature of a Public Body. (H.N. Seervai's Constitutional Law of India, 2nd Edition, page 758, para 16, 19).

9. It has been observed by the Supreme Court in the case of Engineering Majdoor Sabha v. Hind Cycles Ltd., reported in 1962-II L.L.J. 760. 'Article 2 26 under which a writ of certiorari can be issued in an appropriate case, is, in a sense. wider than Article 136, because the power conferred on the High Court to issue certain writs is not conditioned or limited by the requirement that the said writs can be issued only against the order of Courts or Tribunals. Under Article 226(1) an appropriate writ can be issued to any person or authority, including in appropriate case any Government, within the territories prescribed. Therefore, even if the arbitrator appointed under Section 10A of the industrial Disputes Act is not a Tribunal under Article 136 of the Constitution in a proper case a writ may lie against it under Article 226'' This observation was made by Gajendragadkar, J., as his Lordship then was. In Rohtas Industries v. Its Union 1976-I L.L.J. 274 Krishna Iyer, J. observed as follow: 'The extensive and extraordinary power of the High Court under Article 226 is as wide as the amplitude of the language indicates and so it can affect any person even a private individual and be available for any other purpose even one for which another remedy may exist. The amendment to Article 226 in 1963 inserting Article 226(1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to 'the residence of such person',' In the case of Praga Tools Corporation v. C.V. Imanual reported in 1969 II-L.L.J. 749 in paragraph 6, it has been observed by Shelat, J.:

6. No doubt, Article 226 provides that every High Court shall have power to issue to any person or authority orders and writs including writs in the nature of habeas corpus mandamus, etc. or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest...therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command and directed to a person, Corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that a person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for official of a society to compel him to carry out the terras of the statute under or by which the society is constituted or governed and also to companies or Corporations to carry out duties placed on them by the statutes authorising their undertakings.

Following this decision it has been held in the case of Aley, Ahmed Abidi v. District Inspector of School, Allahabad and Ors. reported in : AIR1977All539 that a writ can be issued not only against a statutory body but also against any person provided that he is exercising a public or statutory power or doing a public or a statutory duty. This legal position has been contended by the learned advocate appearing on behalf of the respondents. The decision of Moss Kumkum Khanna v. Mother Acquises reported in : AIR1976Delhi35 as well as the decision of Ramswarup Gupta v. Madhya Pradesh State Co-operative Marketing Society reported in : (1977)ILLJ271MP , were referred to and relied upon in the above case. Similar view has been observed in a recent pronouncement of the Supreme Court case of S.P. Gupta & others. v. President of India and Ors. reported in AIR 1982 SC 147, where it has been observed by Bhagawati, J., as follows :

The traditional rules in regard to locus standi is that judicial redress : is available only to a person who suffered a legal injury by reason of violation of his legal right or legally protected interest by the impuged action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action.

10. Therefore, on a conspectus of all these decisions I am of opinion that a writ application is maintainable not only against any authority including in appropriate cases any Government but also against any person, if such person is invested with the duties enjoined by a statute. In other words, if a non-statutory body is enjoined by the statute to observe the provisions of the statute while taking penal action against its employees such a non-statutory body like Governing Body of the Jagannath Kishore College. Purulia, is amenable to the writ jurisdiction of this Court and for infraction of the duties and obligations imposed upon it by the statute the aggrieved person can very well challenge its action by a writ application before this Court.

11. The next question that requires to be considered in this connection is whether the instant writ application is maintainable at the instance of petitioner who has not exhausted the alternative remedy provided by Section 12 of the West Bengal College Teachers (Security of Service) Act, 1975. It has been urged by Mr. Bhunia that the remedy provided by Article 226 of the Constitution is a discretionary remedy and this discretionary remedy should not be allowed to be availed of and exhausted by the petitioner. It has been, on the other hand, urged on behalf of the petitioner that the alternative statutory remedy cannot in any way prevent the petitioner from getting relief from this jurisdiction as the alternative statutory remedy will not afford and/ or provide appropriate relief inasmuch as the Appellate Tribunal cannot determine the question whether the charge-sheet is vitiated by the principles of natural justice being biased and the same being issued with a closed mind by the disciplinary authority. It has been further submitted that the impugned charge-sheet being contrary to the first charge-sheet the same can be challenged in this writ jurisdiction and the writ Court is competent to interfere in this matter as the alternative remedy is not sufficient to give appropriate relief to the petitioner.

12. It has been observed by the supreme i Court in the case of State of Uttar Pradesh v. Mohammad Nooh reported in AIR 1958 SC 86:

The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior Court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the Superior Court will decline to interfere until the aggrieved party has exhausted his other statutory remedities, if any. But this rule requiring the exhaustion of statutory remedies before writ will be granted, is rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies.

It has been held that the Superior Court will readily issue a writ of certiorari in a case where there has been a denial of natural justice before a Court of summary jurisdictions. The breach of the principles of natural justice is itself a miscarriage of justice which cannot be cured by preferring an appeal as provided in the statute itself'. This has been observed by Amiya Kumar Mookherji, J., in the case of Hindusthan Pilkington Glass Works Ltd v. Superintendent, Central Excise. Asansol and Ors. reported in (1977) 2 CLJ 408, in the case of N.T. Veluswami. The ar v. Raja Nainur and Ors. reported in : AIR1959SC422 , it has been observed by Venkataraman Aiyer, J., who spoke for the Supreme Court that the High Court may properly exercise its discretion in declining to interfere under Article 226 of the Constitution of India where there is a appropriate alternative remedy provided in this statute. It has been held in that case that the statutory remedy by way of appeal against a decision of the Tribunal to the High Court being more expedient and efficacious. It has been held that it would be a proper exercise of discretion under Article 226 of the Constitution to decline to interfere with interlocutory orders. It has been held in the case of C.A. Abraham v. Income Tax Officer, reported in : [1961]41ITR425(SC) , that the Income-tax Act provides a complete machinery for assessment of tax and imposition of penalty and for obtaining relief in respect of any improper orders passed by the Income Tax authorities, and a person who is aggrieved by an order of the Appellate Assistant Commissioner imposing a penalty, cannot be permitted to abandon the to resort that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India when he had adequate remedy open to him by way of appeal to the Tribunal. It has also been held that the petition having been entertained and leave having been granted, it was just and proper not to dismiss the appeal in liming.

13. All the above decisions clearly establish that the High Court under Article 226 of the Constitution have jurisdiction to interfere with an order infringing the provisions of this statute even if there is an alternative remedy provided by the statute but it has been also held that it is for the High Court to decide whether it will exercise its discretionary remedy in a case where there is an equally appropriate and efficacious remedy by way of appeal. In the instant case impugned charge-sheet has been assailed on the ground that the disciplinary authority was biased against the petitioner and the charge-sheet had been framed against the petitioner with a closed mind and as such it violates the principles of natural justice which requires that justice must not only be done but must seem to have been done. It has also been submitted that this writ application will give appropriate relief to the petitioner which the petitioner cannot get by taking recourse to the statutory remedy by way of appeal as provided in Section 12 of the Act in as much as the Appellate Court will not go behind the findings of the disciplinary authority. In my opinion, there is substance in this contention made on behalf of the petitioner and as such I am constrained to hold that this application is maintainable in this Court. It has been contended by Mr. Bhunia that the petitioner being an employee that is, principal of Jagannath Kishore College which is undoubtedly a Government sponsored College, the terms and conditions of his service is in the domain of contract and is in the nature of private employer and employee and as such to get reinstatement his proper remedy is to take recourse to the statutory remedy provided by Section 12 of the said Act. In support of this submission Mr. Bhunia, learned advocate, has cited the decision of Badiyanath Bose v. Smt Sudha Roy and Ors. reported in 70 CWN 571. In that case the respondent Sudha Roy, was appointed as an Assistant Headmistress of Basanath Kumari Balika Vidyapith, Chakdah and subsequently she was appointed as the Asst. Headmistress of that school. Her service was terminated by a notice issued by the Managing Committee of the School giving her 3 months salary in lieu of notice. She filed a suit against the order of termination of her service and ultimately it came up in second appeal before this Court. It was held that the contract of service between the respondent and the Managing Committee of this school was not a kind of contract to which Article 311 of the Constitution of India could apply nor it was governed by the Industrial Disputes Act. and as such the Court could not pass any decree for reinstatement even if there was a wrongful dismissal. It was further held that if she wanted reinstatement then she had to adopt the procedure laid down by the statute and she ought to prefer an appeal praying for reinstatement from the appellate authority. This case has no application to facts of the present case for the simple reason that the petitioner in the instant case though an employee in a Government-sponsored college yet he has acquired a statutory status as the terms and conditions of his service are governed by the provisions of the West Bengal College Teachers (Security of Service) Act, 1975. It cannot, therefore, be said nor can it be contended any longer that the relationship between the petitioner and the governing body of the College is one of master and servant as in the case of a private employer and employee. The terms and conditions of service of the petitioner are no longer in the domain of contract but they are expressly governed by the terms and conditions of the statute and as such the petitioner has acquired a status which entitles him to make an application for an appropriate writ before this Court for setting aside and/or quashing the illegal order passed by the governing body interfering with the terms and conditions of his service and in case of illegal termination of his service he can also move this Court for quashing that order and for his reinstatement. The above decision is, therefore, not applicable to this case.

14. It has been urged that the order of suspension has been made as a punishment as provided in Section (9)(1)(iv) of the said Act and the same being made in utter violation of the mandator of the mandatory provisions of Sub-section (2) of Section 9 read with Rule 7 of the West Bengal College Teachers (Security of Service) Rules, 1977, and without holding any enquiry is illegal and bad and the same is liable to be quashed and set aside. It has on the other, hand, been contended on behalf of the respondents that the impugned order of suspension as contained in the resolution adopted by the governing body at a meeting held on 31st January, 1981 is not made as a punishment under Section 9(1)(iv) of the said Act; it is a suspension of the petitioner pending the enquiry into the disciplinary proceeding started against him in accordance with the provisions of Section 11 of the said Act. Therefore, the order of suspension cannot be questioned as a punishment imposed without observing the procedure prescribed by the Act and Rule framed thereunder. It has been further submitted that the petitioner haying already obtained benefit under the said order by receiving subsistence allowance he is debarred from questioning the order of suspension on the ground that it is not a suspension simpliciter but it is punishment as envisaged by Section 9(1)(iv) of the Act. This submission made on behalf of the respondents, in my opinion, is sustainable in law inasmuch as it appears from the resolution-itself which has been annexed as Annexure 'G' to the petition that the petitioner was placed under suspension pending completion of the disciplinary proceeding. Therefore, this order of suspension has been made in accordance with the provisions of Section 11 of the said Act and the petitioner has been paid subsistence allowance in accordance with the provisions of Sub-section (3) of Section 11 of the said Act This order, therefore, cannot be impeached as illegal and unwarranted on the ground that it is a punishment imposed without complying with the procedure prescribed. The petitioner also having received subsistance allowance under the order of suspension cannot challenge the same as not an order of suspension pending disciplinary proceeding under Section 11 of the Act. It is not a punishment under Section 9(1)(iv) of the Act. The petitioner, in my opinion, cannot appropriate and reprobate. Reference can be made in this connection to the decision of Ramendra Mohan Tagore v. Keshab Chandra Chanda, reported in 38 CWN 488 at page 490 where it has been held that where a party accepts costs under a Judge's order which, but for the order, would not at that time be payable, he cannot afterwards object that the order was made without jurisdiction.

15. The most vital issue that requires to i be considered in this case is whether the charge-sheet as mentioned in Annexure 'G' is vitiated by bias and closed mind of the disciplinary authority and as such the same is liable to be quashed and set aside. To consider this issue it is necessary to refer herein the relevant portions of the proceedings of the meeting of the governing body dated 31st January, 1981 containing the charge-sheet. The relevant excerpts are quoted herein below :

This meeting condemns the action of Dr. A.K. Chakravarty, the Principal-Secretary, in walking out of last Governining body meeting (4, 10, 80) which was convened by him, and the items on the agenda therein, too, were drawn up by him to the exclusion of all other items approved by the President. The meeting feels that the Principal Secretary's leaving the said meeting...had been an act of flagrant defiance of the Governing Body insubordination, and indiscipline, whereby he had undermined the dignity of the august Governing Body as also of high office he holds....Be it resolve-ed, therefore, that the committee be formed consisting of the following members to enquire into the Principal secretary, Dr. A.K. Chakravarty's acts of omission and commission which have been persistently prejudicial to the academic and financial interests of the institution further resolved that a notice be issued to Dr. A.K. Chakravarty in this every meeting, asking him to show cause...why penal action should not be taken against Dr. A.L. Chakravarty, on the following counts :----...a committee having been formed to enquire into his maladministration and gross abuse of power and authority, it is resolved that Dr. A.K. Charavarty be placed under suspension with immediate effect.

16. On close scrutiny of the said charge-sheet as contained in the said resolution it is clear and apparent that the members of the Governing Body are biased against the petitioner and they have already formed their mind in regard to the charges contained in the said resolution and the charge-sheet has been framed with a closed mind. It is also to be noted that before the enquiry to the charges contained in the charge-sheet was started the Governing Body which is the disciplinary authority has asked the petitioner to show-cause why penal action should not be taken against him. This also clearly discloses the closed mind and bias of the disciplinary authority who passed the resolution and issued the charge-sheet to the petitioner. It has been contended by Mr. Bhunia that the resolution dated 31-1-81 as contained in Annexure 'G' to the petition and the letter that has been issued by the respondent No. 4 Sri Chittaranjan Mahato, the President of the Governing Body of the college asking the petitioner to show cause within 7 days why penal action should not be taken against him on the counts as contained in the letter annexed as Annexure 'H' to the petition is not a charge-sheet but it is merely a show-cause notice against the order of suspension. It has been further contended by Mr. Bhunia that this letter has been issued only to further comply with the principles of natural justice and this discloses that the members of the Governing Body are not biased but, on the other hand, they gave opportunity to the petitioner to show cause against the order of suspension. This argument of Mr. Bhunia, learned advocate appearing on behalf of the respondent, Governing Body, is totally unsustainable in as much as firstly the west Bengal College Teachers (Security of Service) Act, 1975 does not provide for giving any opportunity of hearing and or showing cause to the delinquent employee against the order of suspension made by the disciplinary authority pending disciplinary proceeding. Secondarily from the resolution itself as well as from the letter from the President of the Governing Body, respondent No. 4 it is clear and apparent that the letter dated 81 (Annexure 'H' to the petition) was issued by the respondent No. 4 in accordance with the directions contained in the proceedings of the meeting of the Governing Body asking the petitioner to show cause why penal action should not be taken against him on the following four charges mentioned therein. Therefore, considering from all aspects the submission of Mr. Bhunia, learned advocate for the respondents cannot be upheld that the proceeding of the meeting as contained in Annexure 'G' and the letter Annexure 'H' do not contain the charge-sheet but it is merely a show-cause notice against the order of suspension, it has been next submitted on behalf of the petitioner that the second charge-sheet Annexure 'J' was sent to the petitioner by a letter of the enquiring authority dated 28th April, 1981 and this charge-sheet contained 4 charges which are totally different from the charges mentioned in the earlier charge-sheet, it has also been submitted that there is nothing to show whether this charge-sheet was framed by the disciplinary authority and whether the members of the Enquiry Committee were authorised to serve this charge-sheet on the petitioner. It has, therefore, been submitted that the charge-sheet being not properly framed by the disciplinary authority nor the same being served on the petitioner by the disciplinary authority and the same being contrary to and different from the charges contained in the earlier charge-sheet the same is unsustainable and is liable to be quashed and set side. It appears from the proceedings of the Governing Body meeting held on 21-4-81 wherein the aforesaid second charge-sheet was alleged to have been framed there was no specific agenda for framing a fresh charge-sheet. The relevant portion of the proceedings arc quoted herein below :

Agenda (1) the proceeding of the meeting of the Governing Body dated 31-1-81 is read out and confirmed. Agenda No. (2); Discussed item No. 2. in the agenda. The action of Principal on suspension, Dr. Anil Kr. Chakravarthy in not handing over charge to prof. A.K. Dan and in not furnishing any reply to the show-cause notice served on him in the last governing body meeting (31-1-81) is condemned.

It is resolved unanimously that the charge-sheet drawn up on the basis of available records, be forwarded to Dr. Anil Kr. Chakravarthy, the suspended Principal, and that he be asked to submit to the Enquiry Authority within 7 (seven) days of the receipt of the charge-sheet his written defence along with a statement whether he wants to be heard in person. In this connection, the representation of Sri Susanta Kumar Hazra, requesting to exclude his name from the Enquiry Committee on the ground that he may have to testify as a witness in the relevant enquiry, is also considered and it is, therefore, resolved, unanimously in that Shri C.R. Mahato, M.P. and Prof. N.M. Mondial be appointed Enquiry Authority in this case and an order in the following form be issued to these two members who will constitute the Enquiry Authority.

It is evident that there was no agenda regarding the framing of fresh charge-sheet nor it is clear from the said proceedings whether the first charge-sheet framed in the earlier resolution of the Governing Body was given a goby. It is also not clear if the member of the Governing Body have framed this charge-sheet in supersession of the earlier charge-sheet. Moreover, from the language of the resolution of the agenda No 2 it clearly appears that the members of the Governing Body are biased against the petitioner. It is well-settled that rules of natural justice will apply to the cases not covered by law validly made. In other words, these rules do not supplant the law of the land but supplement it. The rules of natural justice will operate unless excluded by statute. It will be pertinent to refer in this connection to a relevant passage from De Smith's judicial review of Administrative Action:

Natural justice is said to demand not only that those whose interests may be directly affected by an act or decision should be given prior notice and an adequate opportunity to be heard, but also that Tribunal should be disinterested and impartial. In classical Roman law the Judge who made a suit his own was liable in quassidelict to the party damnifed. In English law the Judge who violates the maxim, Nemo Judex in causa sua, does not incur civil liability but prohibition may issue to restrain him from acting, and his adjudication may be impeached on appeal or by means of an application for certiorari to quash or for such other remedy as may be appropriate.

Braction wrote that a Judge was not to hear a case if he was suspected of partiality because of consangunity, affrmity, friendship or enmity with a party, or because of his subordinate status towards a party or because he was or had been a party's advocate.

17. In the case of Maneka Gandhi v. Union of India : [1978]2SCR621 , it has been observed by the Supreme Court that there are three rules of natural justice; namely, (1) no one shall be a Judge in his own cause (Nemo dehel esse judex propria causa) (2) no decision without any opportunity of hearing (audi alteram partem) (3) Administrative bodies in arriving at a decision must act justly, fairly, and not capriciously or arbitrarily. It was observed in A.I.R. 1958 S.C. 86 at pages 90-91, paragraph 7 that in departmental trial against a police constable before a Deputy Superintendent of Police, to contradict the testimony of a prosecution witness the Dy. Supdd. of Police who conducted the enquiry himself gave a testimony, there is a grievous violation of natural justice. The act of the prosecution officer in having his own testimony recorded in the case indubitably evidences a state of mind which clearly discloses considerable bias against the respondent. If it shocks our notions of judicial propriety and fair play, as indeed it does it was bound to make a deeper impression in the mind of the respondent as to the unreality and futility of the proceedings conducted in this fashion, 'the bias in disciplinary proceedings must be a real possibility as to a reasonable mind and not merely an apprehension, suspicion, or surmise based on material worth consideration.'

18. This observation has been made in the case of Tarit Kumar Talukdar v. Commissioner of Police and Ors. reported in (1979) CLJ 227 at page 230 para 9. In the case of Union of India v. S.N. Chatterjee and Ors. (1981) CHN at Page 209, it has been held that 'one of the fundamental principles of natural justice is that a Judge must decide impartially between the parties before him and he should have no direct interest in the subject-matter of the enquiry which would lead him to decide the matter either in favour or against one of the parties. It is also a settled principle that the interest in the Judge as aforesaid which disqualifies him to be so, need not necessarily be a pecuniary interest. The principle applies equally to cases where the Judge or the Adjudicator is so situated with reference to the lis that there is a real likelihood of bias taking place in the final decision of the case. In the instant case as I have said already it is clear and apparent from the charge-sheet as contained in the resolution of the Governing Body, the disciplinary authority dated 31-1-81 that the charge-sheet was framed with a closed mind and the disciplinary authority, that is the members of the Governing Body are clearly biased against the petitioner. Moreover, before holding the enquiry into the charge-sheet framed, the disciplinary authority has asked to show cause why penal action should not be taken against him. This clearly shows the closed mind and bias of the disciplinary authority.

19. It is also evident from the proceedings of the meeting of the Governing Body held on 27th April, 1981, that out of the 3 members appointed by the Governing Body as the Enquiry Committee, Sri Susanta Kumar Hazra, the respondent No. 6 resigned from the Enquiry Committee on the ground that the had to testify as a witness in the relevant enquiry. It also appears that the President, respondent No. 4 who is also interested inasmuch as it will appear from the statements of facts in regard to the articles of charge-sheet No. 3 annexed as Annexure 'J' to the petition, one of the documents to be relied upon is the President's Governing Body, memorandum to the Hon'ble Education Minister copy of the proceeding of the General Governing body meeting held on 10-4-80 and also relevant papers of the Governing Body meeting held on 17-4-79. It has been contended that the members of the Governing Body are, therefore, biased against the petitioner and as such the [Enquiry Committee will work injustice and it will vitiate the principles of natural justice. Considering the facts and circumstances I am compelled to hold that the first charge-sheet as contained in Annexure 'G' to the petition is vitiated by bias and closed mind. The second charge-sheet is also bad in as much as the same contained charges which are totally differ -rent from the charges contained in the first charge-sheet and as such as the second charge-sheet is also illegal and bad. More over, from the second charge-sheet as I have said before it appears that the respondent No. 4 who is the President of the Governing Body and is also a member of the Enquiry Committee is also biased against the petitioner as he has to consider his own letters and documents in considering the articles of charges framed against the petitioner. Therefore, in the circumstances, I cannot but hold that both the charge-sheets are vitiated by bias and closed mind and as such the enquiry proceedings that have been held by the members of the Enquiry committee who are also biased against the petitioner utterly contravened the principles of natural justice in as much as justice must not only be done but must appear to have been done. Therefore, in my opinion these charge-sheets and the enquiry held by the Enquiry Committee on the basis of the charge-sheets are liable to be quashed and set aside.

20. For the reasons aforesaid, the rule succeeds and is made absolute. Let a writ of mandumus issue commanding the respondents to forbear from giving effect to the impugned order of the charge-sheets mentioned in Annexures 'G' and 'J' to the petition as well as to forbear from giving effect to the enquiry that has been held on the basis of the charge-sheet and the order made, if any, on the basis of these charge-sheets. Let a writ of certiorari issue commanding the respondents to quash, cancel and set aside the charge-sheets mentioned in Annexures 'G' and 'J' to the petition as well as the enquiry held thereon and also the order of termination that has been made on the basis or such enquiry. This will, however, not in anyway, prevent the authorities concerned from proceeding with the disciplinary proceedings in accordance with law.

21. There will, however, be no order as to costs. The operation of the order be stayed for one week.


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