- (1.) IN the writ petition, the petitioner, who was the Teacher-in- charge of Arya Kanya Maha Vidyalaya (Higher Secondary) (for short the "said institution"), has challenged the notice dated 7th May, 2005 whereby the said institution proposed to hold a departmental enquiry against her and the notice dated 1st August, 2005 whereby the Administrator of the said institution intimated that the Headmaster of Kumar Ashutosh INstitution for Boys, Dum Dum, had been appointed Enquiry Officer to enquire into the charges levelled against her and to submit an enquiry report. It is to be noted that on 25th, September, 2001 an Administrator was appointed over the said school.
(2.) ACCORDING to the petitioner, on or about 12th September, 2001 while she was the Teacher-in-Charge, she received a notice that the Managing Committee of the said Institution had passed resolution on that day discharging her service and had directed to hand over the charge of the school to its Secretary. Thereafter, the petitioner received a notice dated 2nd January, 2002 from the Administrator directing her to show cause why she did not hand over the bank cheque books, fixed deposit certificate and the keys. The petitioner, by letter dated 16th January, 2002, replied. On 27th May, 2002 the petitioner made a representation to the West Bengal Board of Secondary Education against the order of dismissal dated 12th September, 2001 with a prayer for a direction upon the Administrator to allow her to resume duties. Thereafter, from the sequence of events, it appears that the petitioner filed a writ petition being W.P.No.1715 of 2002, challenging the notice dated 2nd January, 2002. The said matter was disposed of on 22nd January, 2004 by granting liberty to the petitioner to prefer appeal before the Director of School Education, West Bengal, against the order of dismissal dated 12th September, 2001 in terms of Rule 12(2) of the Special Rules for the management of the secondary schools established and run by Arya Samaj and it was directed in the event such appeal was filed, the Director was requested to dispose of the same preferably within two months from the date of filing such appeal. It was recorded in the said order that since the petitioner had crossed the age of superannuation, she was entitled to have the provident fund to which she was entitled to in accordance with law. Pursuant to the said order, as evident from annexure-P/11, the Director of School Education, West Bengal, granted a hearing and the matter was disposed of by passing an order contained in the memo dated 24th March, 2005 the relevant portion of which is as under: "Now in the circumstances I would like to direct the Managing Committee/ Administrator of the school to look into two aspects namely, 1. Charge on misappropriation of fund is pending before the Court of law. Until and unless that case is finalized and corruption charges are established a permanent employee cannot be dismissed simply on accusation. 2. If the employee is to be dismissed then Article of Charges shall be framed, and forwarded to the employee concerned and, in that event Smt. Anjana Dubey shall receive the letter of charges and submit her submissions in writing to the authority concerned and Smt. Dubey shall be given the opportunity of being heard personally or though her Advocate. After carefully considering the above two points the Authority shall take a decision as per Law. With the above direction I dispose of the case. All concerned are being informed accordingly." It requires to be mentioned that the Director in his order had noted that a criminal case is pending before the learned 4th Metropolitan Magistrate, Bank shall Court, Kolkata, which was pursuant to a complaint by the school. It appears that the Director held that the permanent employee could not be dismissed simply on accusation and if an employee is to be dismissed then Articles of Charges shall have to be framed and forwarded to the employee concerned and the principles of natural justice should be complied with. I find that after order was passed by the Director, the impugned notices dated 7th May, 2005 and 1st August, 2005 were issued. Now the questions to be considered are: 1. Whether the proceedings as mentioned in the impugned notices dated 7th May, 2005 and 1st August, 2005 were in continuation of the show cause notice for termination dated 28th August, 2001 which culminated in terminating her on 12th September, 2001. 2. If the proceedings are bad in law, whether the petitioner is entitled to back wages for the period from 1st October, 2001 till 30th June, 2003, that is, the date on which she would have retired.
(3.) SO far as the first question is concerned, it is evident that the school authorities had issued a show cause notice dated 28th August, 2001 by which she was directed to give reply within seven days, and by letter dated 12th September, 2001 had terminated her service. Thereafter, criminal case alleging misappropriation of funds by the petitioner was initiated and it is continuing. SO far as the departmental proceedings are concerned, I find that the petitioner had challenged the same by filing a writ petition being W.P. No. 1715 of 2002, which was disposed of by directing the Director of School Education, West Bengal to decide which, as noted, was decided by an order dated 24th March, 2005. Pursuant thereto, the school authorities issued the impugned notices dated 7th May, 2005 and 1st August, 2005. The question is, whether the impugned notices dated 7th May, 2005 and 1st August, 2005 were in continuation of the earlier departmental proceedings. In order to decide the issue, the tenor of the orders passed by the authorities have to be scrutinised. Admittedly by notice dated 12th September, 2001, the petitioner was dismissed from service. That the earlier proceedings initiated in the year 2002 had come to an end is evident from the tenor of the order passed by the Director wherein it was observed that until and unless that case is finalized, and corruption charges are established, a permanent employee cannot be dismissed simply on accusation, and it was observed therein that in case of dismissal, articles of charges have to be framed and forwarded to the delinquent and opportunity must be given to the delinquent for defending herself. That order of the Director of School Education, West Bengal, was not challenged before any forum. Thereafter, pursuant to the order passed by the Director, as it appears from the impugned intimation dated 7th May, 2005 the school "proposed to hold a departmental enquiry" mainly on the ground that the petitioner on and from 1st September, 1999, acting as Teacher-in-charge had committed a grave misconduct and negligence resulting in huge monetary loss to the Institution. Therefore, it is evident from the language of the notice dated 7th May, 2005 that all earlier proceedings including the proceedings initiated by show cause notice dated 2nd January, 2002, were given a go-by and the departmental proceedings were initiated afresh. Now it is also to be looked into whether the subsequent departmental proceedings initiated by the notices dated 7th May, 2005 and 1st August, 2005 have the legal sanction in view of the provisions contained in the West Bengal Services (Death cum Retirement) Benefit Rules, 1971 (for short the "Rules") as amended from time to time. The relevant portion of the said Rules, is as under: "R. 10. Right of the Governor to withhold pension in certain cases.-(1) The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or negligence, during the period of his service, including service rendered on re-employment after retirement: Provided that (a) such departmental proceeding if instituted while the officer was in service, whether before his retirement or during his re-employment shall after the final retirement of the officer, be deemed to be a proceeding under this article and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; (b) such departmental proceedings, if not instituted while the officer was in service, whether before his retirement or during his re-employment (i) shall not be instituted save with the sanction of the Governor; (ii) shall not be in respect of any event which took place more than four years before such institution......" (Emphasis supplied) ;