HARISH TANDON - (1.) THE petitioners are the widow and the son of deceased teacher. It is specific case of the petitioners that Late Sasanka Sekhar Mukhapadhyay , the husband and the father of the petitioners No.1 and 2 respectively was appointed as a Primary School teacher on 1.12.1961 and the said service was confirmed by the District Inspector of School (Primary Education) Howrah on 4.01.1980. From 13.08.1980, the said teacher became a mental patient and was medically unfit to continue his duties and thereafter applied for medical leave before the concerned authority.
(2.) AFTER recovery from mental imbalance, the said teacher applied to the chairman, Howrah District Primary School Council to resume his duties on 22.03.1999. A Sub-Inspector of School intimated the chairman that there is no service record of the said teacher in the office but it has been observed that the said teacher was found working up to the month of August, 1980 and requested the chairman, Howrah District Primary School Council to take necessary decision in this regard. The chariman showed inability to consider the said case in view of a long absence of 20 years of the said teacher. Ultimately, the Assistant Secretary, Government of West Bengal rejected the prayer of the said teacher on 5th Janurary 2000, by which he intended to resume his duties by the State Government. Thereafter, several representations were made by the said teacher for reconsideration but those representations were not considered and disposed of by the authorities. Ultimately, the said teacher died on 05.02.2002. The petitioner No.1, thereafter made an application to the chairman, District Primary School Council, Howrah for disbursement of the admissible benefits with the further prayer for consideration of the candidature of the petitioner No.2 on compassionate ground. Apropos such application, several reminders and/or further application were made renewing the similar prayer but the authorities have not considered and disposed of those representations as well. Mr Subir Sanyal, learned Advocate appearing for the petitioner submits that the authorities cannot withheld the admissible benefits of a teacher under the statutory rules if dies prematurely. He further submits with the service of the teacher was not terminated and as such the candidature of the petitioner No.2 on compassionate ground should be considered by the authorities concerned. Mr. Tulsi Das Maity, the learned Advocated appearing for the District Primary School Council submits that due to long absence of 20 years, the teacher can not be allowed to resume the duties and can not be said to be in service. He further submits that there is no service record of the deceased teacher available with the office of the chairman, District Primary School Council. Mr. Saikat Banaerjee, the learned Advocated appearing for the state respondent submits in the same tune as of Mr. Maity. In addition thereto, he submits that although the deceased teacher was found to have been appointed as the Primary Teacher but because of the long absence there is no service record available in the office and as such it would be deemed that the said teacher discontinued the service. Having heard and considered the submission of respective counsels, a piquant situation arose before the respondent authorities. The Sub-Inspector of School showed his inability to furnish the leave statement of the deceased teacher in absence of any record, even the chairman District Primary School Council could not come to any positive decision because of non-availability of the relevant record pertaining to the service of the deceased teacher. None of the authorities have doubted or raised any objection about the appointment of the said teacher, rather the authorities are unanimous that the said teacher was appointed and such appointment was duly approved. From Annexure-P4, it appears that the said teacher applied for leave on medical ground. The office of the District School Board, Howrah issued the annual submission of provident fund account on 17th March, 1984. Admittedly, the service of the said teacher is not terminated. The Chairman, District Primary School Council, Howrah, in its letter dated 13.10.1999 found that the said teacher was appointed on 01.12.1961 and discharged his duties up to the middle of the month of August 1980 and requested for consideration of the matter on compassionate ground and the matter of regularisation of the leave to the Secretary Education Department, Government of West Bengal.
(3.) BY the impugned memo, the said prayer is turned down without assigning any reason. It is imperative on the part of the Administrative Authority to pass speaking order as the failure thereof breaches the principle of natural justice in view of the division bench judgement of this court in case of Prafulla Kumar Singh Vs. Dr. Sachidananda Sarkar reported in (2011) 3 WBLR 590 (CAL) where the division bench held: On a bare reading of the impugned order, it appears that no reason is assigned as to why the contempt application was dismissed save and except a finding that there has been no contempt. The said order is hit by principle of speaking order. The speaking order principle has already settled its root. Reference is made to this effect:- It is the basic principle of law that every order passed by any administrative body or any quasi judicial body and/or even by the judicial body must disclose the reason of the order so that the person concerned who is affected thereby may approach the higher forum and/or higher Court assailing the decision thereof. In the case Chairman, Rani Lakshmi Bai Kshetrya Gramin Bank v. jagdish Sharan Varshney & Ors., reported in (2009) 4 SCC 240, the Court held that reason must be given by the appellate or revisional authority even when affirming the impugned decision. Reliance was placed in that case, the case of Divisional Forest Officer, Kothagudem v. Madhusudhan Rao, reported in (2008)3 SCC 469, M.P. Industries Limited v. Union of India, reported in AIR 196 SC 671 and Seamen Engineering and Manufacturing Company of India Limited v. Union of India, reported in (1976)2 SCC 981. In that case the court explained and discussed the contra decision passed in the case S.N.Mukherjee v. Union of India, reported in (1990) 4 SCC 94 by explaining the said decision that in case of affirmation, no reason separately required to be given as held in S.N. Mukherjee (supra) should be read as an observation meaning thereby that order of affirmation need not contain any elaborate reasoning as contained in original order, but it can not be understood to mean that even brief reason need not be given in order of affirmance. The court further explained in that case the earlier case of State of Bikaner and jaipur v. Prabhu Dayal Grover, reported in (1995)6 SCC 279, since in the case Prabhu Dayal Grover, (supra), it was observed that for affirmative order there was no necessity of giving any reason to this effect that the observation of the Prabhu Dayal Grover (supra),should be read as that the Appellate Authority should disclose briefly application of mind as without any reason cannot be satisfied. It has been further held at least that brief reason should be given so that one can know that the Appellate Authority has applied his mind. Right to information and right to be informed about a reason of any decision is within the domain of Article 19(1) read with Article 21 of the Constitution of India in terms of the views expressed by the Apex Court in the case Ravi S. Naik Sanjay Bandekar v. Union of India, reported in AIR 1994 SC 1558. It has been held in the case Manager Government Branch Press v. D. B. Belliappa, reported in AIR 1979 SC429 that administration is under a general duty to act fairly and fairness founded on reason is the essence of right and equality. Lord Denning MR in the case Breen v. Amalgamated Engineering Union Limited, reported in (1971)2 QB 175 even held it is one of the fundamental of good administration to assign a reason in the decision. In the M.P. Industries Limited (supra) case, Justice Subbarao held in considering the principle of reasoned decision that justice not only should be done but it should be felt to have been done, where reason is a must. Absence of any reason is nothing but non-application of mind is the view expressed in the case Shanti Prasad Agarwalla v. Union of India, reported in AIR 1991 SC 814. In the case Steel Authority of India Limited v. S.T.O., reported in (2008) 9 SCC 407 wherein in para 17 the court held reason is heart bit of very conclusion. It introduces clarity and without the same it becomes lifeless. In the case State of West Bengal v. Alpana Roy, reported in (2005)8 SCC 296 on considering the cases, namely, Breen (supra), Amalgamated Engineering union Limited (supra) and Alexander Machnery (Dudly) Ltd. V. Crabtree, reported in 1974 ICR 120 (NIRC), in para 8 the Court held reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the unscrutable face of sphinx, it can, by its silence render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reason at least sufficient to indicate an application of mind to the matter before the Court. In Alexander Machinery (Dudly) Ltd. (supra) the Court held falure to give reasons amounts to denial of justice. Reasons are live links between the minds of the decision taker to the controversy in question and the decision or conclusion arrived at. The same view reiterated in the case Jagatamba Devi v. Hem Ram & Ors., reported in (2008)3 SCC 509, wherein in para 10, the decision of Breen (supra) and Alexander Machinery (Dudly) Ltd. (supra) was quoted. Non-speaking order violates the principle of natural justice is the view expressed by the Constitution Bench in the case S. N. Mukherjee v. union of India, reported in AIR 1990 SC 1984 by holding that quasi judicial and administrative body if fails to pass any speaking order it breaches the principle of natural justice. Speaking order principle is applicable to a judicial action also as held in Smt. Swarnalata Ghosh v. Harendra Kumar Banerjee, reported in AIR 1969 SC 1167.;