Pratap Kumar Ray, J. - (1.) The Petitioner an approved Assistant Teacher being placed in a permanent post of Raninagar Junior High School has challenged the order of suspension, the disciplinary proceeding and 2nd show cause notice on proposed punishment of dismissal and thereby has prayed for the following relief 's: (a) A Writ of and/or in the nature of Certiorari do issue commanding the Respondents concerned and each of them to certify and transmit to this Hon'ble A court ah records, orders, notices charge sheets, replies, appeal observations and counter -; observations, Rules, Circulars and correspondences relating to the purported disciplinary proceedings culminating in the Show Cause notice numbered 278 dt. 1.11.93 and the order of suspension and further the order on appeal against such impugned suspension of your Petitioner so that conscionable justice may be administered by quashing and or setting aside. (b) A Writ of and/or in the nature of Mandamus do issue commanding the Respondents and each of them to withdraw, rescind and cancel the impugned disciplinary proceedings initiated against your Petitioner culminating in Show Cause Notice numbered 278 dt. 1.11.93 contained in Annexure 'A2' of .this petition ; (c) A Writ of and/or in the nature of Prohibition do issue commanding the Respondents concerned and each of them to forbear from giving any effect or further effect to the impugned disciplinary proceedings culminating in Show Cause Notice numbered 278 dt. 1.11.93 contained in Annexure 'A2' of this petition and to any step or action taken out of the said proceedings against the Petitioner and to withdraw, recall, rescind and cancel the same ; (d) A Writ of and/or in the nature of Mandamus do issue commanding the Respondents concerned and each of them to rescind, cancel and/or modify the impugned order passed by the Appeal Committee in Appeal No. 17/89 on May 19, 1990 and further to set aside the purported order or suspension contained in Annexure 'Q' to this petition.
(2.) By the interim order dated February 11, 1994, Paritosh Mukherjee, J. (as His Lordship then was) allowed the Managing Committee to proceed with the departmental proceeding and to pass a final order, but restrained the said authority to communicate the final order without the leave of the Court. This writ application has been opposed by the Managing Committee of the School by filing affidavit. In their affidavit, it has been disclosed that the 2nd show cause notice proposing punishment of dismissal, which was the subject matter of the writ application, reached its finality by decision of the Managing Committee dismissing the, Petitioner from the service and the same was subsequently approved by the West Bengal Board of Secondary Education. In course of hearing, in view of the changed circumstances that the order of dismissal from service was approved and the same reached its finality, by the order dated May 16, 2002, the leave granted by me allowing the Petitioner to assail the order of dismissal which was disclosed in the affidavit -in -opposition. The Petitioner's subsistence allowance as was being enjoyed by the Petitioner, accordingly was stopped. By Supplementary Affidavit, Petitioner assailed the order of dismissal from service. This Court directed the Managing Committee to produce the records of the case for necessary satisfaction of this Court about performance of all the formalities as were required to complete the disciplinary proceeding of a teaching staff in terms of Rules of Recognized Nongovernmental Institute (Aided and Un -aided) Rules, 1969 hereinafter referred to as Management Rules of 1969 read with the Circular Letters issued by the concerned authority prescribing the procedures of such departmental proceeding. It has been frankly conceded by Mr. K.K. Maitra, learned Senior Advocate appearing for the School Authority namely Respondent Nos. 7 to 10, that departmental proceeding was not completed in terms of the settled law as passed by the Division Bench of this Court and subsequently confirmed by the Special Bench relating to departmental proceeding of teaching staff. From the records, it appears that the Petitioner though was served with the charge sheet but no formal enquiry was held and completed by appointing any Enquiring Officer, Only on the basis of the reply of such show cause notice filed by the Petitioner, the matter was adjudicated upon in the first stage by taking a decision to complete the departmental proceeding, which got its approval by West Bengal Board of Secondary Education hereinafter referred to as said Board,, In the second stage, in terms of the procedure of departmental proceeding applicable in the field, the same thing was repeated and ultimately the proposed punishment of dismissal was approved by the said Board, which ultimately culminated to a final order of removal of service by the resolution of the Managing Committee of the School. From the records itself it is ex -facie clear that the charges were not proved by examination of witnesses on allowing the Petitioner to cross -examine them and further Petitioner was not allowed to place his own witnesses in support of his case. No Enquiring Officer was appointed to complete the departmental proceeding. The relevant rules for initiation of departmental proceeding and to pass the order of dismissal of service is Rule 28(8) of the Management Rules, 1969, which reads thus: Rule 28(8). Both in aided and unaided Institutions the Committee shall have the power, subject to the prior approval of the Board, to, remove or dismiss permanent or temporary teachers and other employees. For this purpose the Committee shall first draw up formal proceedings and issue charge -sheet to the teacher or the employee concerned and offer him reasonable facility for defending himself. The teacher or the employee reposed to be proceeded against shall submit his explanation, ordinarily, within a fortnight of the receipt of the charge -sheet. The Committee shall send to the Board all relevant papers including the charge -sheet, explanations submitted by the teacher or the employee concerned and the reasons for Which the Committee decides in favour of taking disciplinary action. If the Board considers that there are sufficient grounds for taking disciplinary action the Committee shall issue formal notice Galling upon the teacher or the employee concerned to show cause, ordinarily within a fortnight why ' he should not be dismissed or removed from service. The Committee shall, then, send again to the Board all relevant papers including the explanation submitted by the teacher or the employee concerned and the recommendations of the Committee for the action proposed to be taken. So far as the Committee is concerned, the decision of the Board shall be' final: Provided that the Board may delegate to any committee constituted under Sec. 24 of the Act the powers and functions conferred on the Board by this sub -rule.
(3.) By Notification No. S/607 dated Calcutta, the June 21, 1982 issued by the Secretary, West Bengal Board of Secondary Education, a procedure for sending the proposals for obtaining approval in respect of disciplinary proceeding against the member of the teaching and non -teaching staff - of secondary school was introduced, which reads thus: WEST BENGAL BOARD OF SECONDARY EDUCATION 77/2 Park Street, Calcutta - 16. No.S/607 Dated, Calcutta, the 21st June, 1982 To The Management of all recognized Non -Govt. Secondary Institutions in the state. Sub: Proposal for obtaining approval in respect of disciplinary proceeding against any member of the teaching/non -teaching staff of secondary schools under Rules 28(8) and (8a) of the Management of Recognised Non -Govt. Institutions (Aided and Unaided) Rules, 1969, as amended. The Management of recognized secondary schools is hereby informed that in the matter of submission of proposal/seeking Board's approval for the initiation of disciplinary proceedings in respect of any member of the teaching/non -teaching staff of a school under Rule 28(8) and (8a) of the management Rules, the formalities as set below shall be observed: 1. The school management shall initiate disciplinary proceedings against any member of the teaching/non -teaching staff .of the school in two stages as noted hereunder: (a) First stage: The procedure of the 'first stage' shall comprise the following ad seriatim: (i) Resolution of the Managing Committee containing the charges against the person to be proceeded against; (ii) Formal charge -sheet to be issued to the person concerned, containing the articles of charges as per resolution of the Managing Committee ; (iii) Reply to the charge -sheet by the person proceeded against to be submitted to the Managing committee ordinarily within a fortnight from the date of receipt of the charge -sheet; (iv) Consideration of the reply by the Managing Committee and its decision thereon, with the underlying reasons for taking such decision to be stated in detail. The school management shall, thereafter, send to the Board their proposal along with attested copies of all relevant papers coming within the scope of the 'First State' above. If the Board considers there are sufficient grounds for taking disciplinary action against the person concerned on the basis of papers submitted by the school and also papers that may be subsequently called for, if necessary, the Board will accord first approval to the school's proposal for initiating disciplinary proceeding against him/her. In air cases, the Board will acknowledge the school's letters on the subject at the earliest opportunity. If no communication from the Board of received within one month of submission of the proposal regarding the punishment to be meted out to the teacher/non -teaching employee, the school concerned will meet the Secretary of the Board, along with all relevant papers with a prayer for expeditious disposal of the case. (b) Second stage The procedure of the second stage, if necessary, shall comprise the following ad seriatim: (i) On receipt of the Board's aforesaid approval, the Managing Committee shall issue a show -cause notice, on the basis of their resolution, to the person concerned ordinarily within a fortnight, specifying the nature of the punishment proposed to be awarded to him/her, as provided under Rule 28(8) or (8a) ; (ii) On receipt of the person's reply to the show -cause notice, the Managing Committee shall consider the reply in its meeting and take a decision thereon in the form of a resolution; (iii)The school management shall thereafter forward all relevant papers as mentioned in (i) and (ii) above, to the Board for consideration ordinarily within one month of the reply to the show -cause notice, as indicated under (b)(ii). The Board will then consider the case in all its aspects, decide it finally and communicate its decision to the school authority for implementation. The decision of Board on the matter is final and binding upon all concerned. 2. The school management shall not remove any person from service or award any punishment without the prior approval of the Board and without following the procedure indicated under Rule 28(8) arid/or (8a) of the Management Rules as elaborated in item 1 above. 3. All communications relating to the aforesaid matter shall be sent to the Secretary of the Board by name, with the superscription 'Disciplinary Proceeding' written legibly on the envelope.;