Pratap Kumar Ray, J. - (1.) HEARD the learned advocates appearing for the parties. In this application the Petitioner has prayed the following reliefs: (a) A writ in the nature of Mandamus commanding and/or directing the Respondents, their agents and subordinates to cancel, set aside, quash, rescind, and withdraw (i) the impugned decision of the Appeal Committee of the Board taken in its meeting held on 29 February, 1992 in Appeal No. 13/91 communicated to the Petitioner under Memo No. 6117/8/1 dated 28.4.92 being Annexure 'I' to the petition, (ii) the impugned order dated 5.5.90 of the Headmaster, Belghoria High School withholding the payment of 5 (five) days salary from the pay packet of April, 1990 being Annexure 'C (iii) the impugned order dated 14.8.91 of the Board of Secondary Education, West Bengal, communicated by the headmaster through his letter dated 23.8.91 directing to be censured to the Petitioner being annexure 'K'; (iv) impugned order dated 22.9.90 of the Managing committee of Belghoria High School inflicting the punishment/ penalty for absence of 5 days on medical ground contemplating the conduct be censured be noted in the Service Book and forwarded to all concerned and conduct will further be reviewed after every six months for a period of two years and necessary action will be taken against the Petitioner in the event . -.of recurrence of any such lapses in further, in the situation so warrants, after expiry of the said period of two years commencing from the date of issue of the communication being Annexure 'E'; (v) the alleged charge -sheet framed by the impugned order/ memo dated 6.2.92 of the Secretary of the Managing Committee of Belghoria High School after inflicting punishment to the Petitioner and directing him to submit explanation since the alleged charges go to prove prima facie offence as to why disciplinary action, as provided under Rules, shall not be drawn against the Petitioner and why the absence for specified days will not be treated as unauthorized absence leading to break of service being Annexure 'P' and directing them further not to give effect or further effect to the same and directing them further to stay the operation of the same as the impugned orders have been passed imposing purported punishment behind the back of the Petitioner and without initiating any disciplinary enquiry proceedings and without prior approval of the Board and without issuing any charge -sheet asking to show cause and without affording any opportunity of hearing to the Petitioner and without following the procedure indicated under Rule 28(8) and 28(8a) of the Management Rules prescribed for initiating the disciplinary proceedings in terms of circular No. S/607 dated 21 June, 1982 and without complying with the natural justice Rules and violating the principles in Article 20(2) of the Constitution of India providing inter alia that 'no one shall be prosecuted and punished for the same offence more than once. (b) A writ in the nature of Certiorari calling upon the Respondents, their agents and subordinates to certify and transmit the entire records of the case to this Hon'ble Court so that conscionable justice may be rendered by quashing and/or setting aside the same ; (c) Any other writ or writs to which your Petitioner may be found entitled.
(2.) THE facts leading to the writ petition are as follows: In view of Petitioner's absence to the invigilation duty for the examination conducted by the West Bengal Board of Secondary Education as held in the month of April, 1990, the Headmaster of Belghoria High School by his decision dated May 5, 1990 withheld the salary for 5 days with reference to the salary for the month of April, 1990 and referred the matter for a decision by the West Bengal Board of Secondary Education as well as Managing Committee. A meeting held on June 24, 1990 by Managing Committee on endorsing the decision reached by the Headmaster of the school issued. By a notice dated September 22, 1990, the Committee censured the Petitioner's action for recording in the Service Book and Petitioner was placed under strong vigilance for 2 years in the matter of performance of the duty. In this letter the Petitioner was further directed to show cause for consideration by the Managing Committee and the Petitioner made a reply to such decision of Headmaster as well as the Managing Committee as referred to by contending that his illness was the reason for absence in the invigilation duty for which necessary leave application was filed. The Petitioner further replied the there was no cause of action for taking such decision by the Headmaster and the Managing Committee and prayed for quashing all those, by the letter dated April 9, 1991 the Headmaster of the concerned school had informed the Petitioner that the matter was discussed in the meeting of the Managing Committee and the decision to withhold the payment of salary for 5 days from the Pay Bill of April, 1990 remained unaltered pending final decision of West Bengal Board of Secondary Education. Challenging the action of the Managing Committee as well as of the Headmaster concerned, an appeal was preferred before the West Bengal board of Secondary Education by the Petitioner on April 30, 1991 highlighting his grievance upon contending that prior to any decision by the Headmaster withholding the salary, the Petitioner was not heard and further contending that when the authority granted leave for other dates during the month of April, 1990 by accepting the Medical Certificate as issued by the concerned Medical Officer refusal to grant 5 days salary which was also .covered under the leave application being supported by the certificate of the self -same Medical Officer was not justified. However, the appeal committee dismissed the appeal and communicated the decision under Memo No. 6117/8/1 dated April 28, 1998. This appeal was registered as Appeal No. 13/91. The appeal committee did not consider the legal aspect of the matter, namely, the question of jurisdiction of the Headmaster to issue the letter withholding the salary of the Petitioner as well as the relevant statutory provision and the jurisdiction of the Managing Committee to endorse the decision of the Headmaster and thereby to confirm such decision of withholding the salary. This decision of the appeal committee as well as decision of Headmaster and the Managing Committee all are under challenge in this writ petition. This writ petition has been opposed by filing affidavit. It is submitted by the learned advocate for the Petitioner that the impugned decision is not legally sustainable as the same is without jurisdiction. It has been argued that in terms of Rule 28 Clause (8a) of the Rules of Management of Recognized Non -governmental Institutions (aided and unaided) rules 1969 (hereinafter referred to as for brevity 'Management Rules 1969'), a procedure by drawing a proceeding in terms of Clause 8 of Rule 28 of the said Rules was required to be followed prior to withholding of the salary and after hearing the Petitioner, the Managing Committee had the jurisdiction to pass any decision. It is strenuously contended that impugned decision was passed without jurisdiction and the appeal committee did not at all consider the legal aspect of the matter. This submission of the Petitioner was opposed by the learned advocate appearing for the Respondents. It is submitted by Mr. Moitra, the learned Government Pleader appearing for the School Authorities that in terms of the circular letter of West Bengal Board of Secondary Education, so far as conducting the Public examination as it appears from the circular letter dated December 22, 1986, that all the teaching staff of the school were duty bound to attend the invigilation duty so that the examination as conducted by the said Board could have been take properly in the concerned center. It has been further submitted that in terms of the said circular letter No. Ex/MP -87/C/1 dated December 22, 1986 once duty was entrusted upon a teaching staff in the invigilation duty, absence if any, would be looked into seriously and the same would be deemed as misconduct. It is submitted that having regard to the very serious situation which relates to holding a public examination, the decision of the Headmaster as ln -charge of the Centre withholding the salary was justified. It is further submitted that withholding the salary was an interim measure subject to final decision of the Board of Secondary Education which as yet has not been finalized by the said Board. On that submission it is contended that the Petitioner is not entitled to get any relief in this matter. Having considered the respective submissions of the parties and the pleadings as made in their respective applications and rejoinders the only question which is required to be adjudicated in this case is as to whether the impugned decision of the Headmaster as well as the Managing Committee withholding the salary of the Petitioner due to absence of the Petitioner on the dates when he was allotted invigilation duties would be considered as justified and legal. For adjudication of this issue, the relevant rules are to be looked into. Under the management Rules, 1969, it is the Managing Committee who has been vested with the power to initiate any departmental proceeding by drawing up a formal proceedings in terms of Clause 8 of Rule 28 of Management Rules when the Managing Committee would decide to remove or dismiss any .permanent or temporary teaching and non -teaching staff. The said Clause 8 of Rule 28 reads thus: (8) Both in aided and unaided Institutions, the Committee shall have the power, subject to the prior approval of the Board, the 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 proposed 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 calling 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 Section 24 of the Act the powers and functions conferred on the Board by this sub -rule. Under Clause 8A of Rule 28 for any lapses on the part of the employees of the Institution which includes teaching and non teaching staff, scope was provided for initiation of proceeding to impose minor penalties. The relevant provision Clause (8a) of Rule 28 reads as follows: (8a) In case of lapses on the part of permanent or temporary teachers and other employees of an Institution, which do not warrant removal or dismissal of the persons concerned, the Committee may impose minor penalties, like stoppage of on increment in pay, reduction of pay in the time scale and censure, with the prior approval of the Board. In all such cases, the Committee shall observe the procedure laid down in Sub -rule (8).
(3.) UNDER Clause 9 of Rule 28, the Managing Committee was vested to grant leave casual or medical in terms of the rule, which reads as thus: (9) In aided and unaided Institutions the Committee shall have the power (i) to grant leave other than casual leave which shall be granted by the Head of the Institution and by the Secretary of the Committee in the case of the Head of the Institution; to grant increments in pay to teachers and other employees in accordance with the procedure laid down from time to time or where in aided schools that grant of increments is regulated by grant -in -aid rules, in accordance with such rules.;