Gitesh Ranjan Bhattacharjee, J. - (1.) The petitioner, Smt. Gita Das Adhikary, a science graduate, was appointed an assistant teacher in Tahalia Sovamoyee Balika Vidyalaya in the district of Midnapore in 1971. Thereafter she was deputed for training and obtained the B.Ed. degree in 1977. Her case is that she fell seriously ill from 31st December, 1982 and could not attend school for a long time since August, 1984 as she was suffering from serious gynaecologic disorder and ultimately she had to be operated upon by Dr. Mukulika Konar on 5th September, 1989. It is also her case that after Dr. Mukulika Konar expired she was treated by Dr. P. K. Dam, Gynaecologist/ Surgeon and as late as on 15th October, 1989 Dr. Dam advised her to avoid climbing stairs as far as possible. She also claims to have been treated by different other doctors from 1983 to 1988. It is her contention that as she was unable to attend the school due to serious illness she kept the school authorities informed of the same, particularly through one Sri Netai Kumar Das and one Sri Sudhir Garu who lived near the school. Her grievance is that the school authorities without asking her to show-cause and without giving her any opportunity of being heard terminated her service as assistant teacher of the school as per approval of the Board of Secondary Education with retrospective effect from the 14th August, 1984 by serving a letter dated the 31st January, 1987 upon her under the signature of the Secretary of the School. The petitioner challenges the order of her termination of service inter alia on the ground that the mandatory provisions of Rule 28(8) of the Management of Recognized Non-Government Institution (Aided and Unaided) Rules, 1969 (Management Rules, for short) have not been complied with.
(2.) The contention of the respondents on the other hand may be summarised here. On and from 14th November, 1983 the petitioner had been continuously absenting from the school duties without any leave application. As per resolution of the Managing Committee dated the 24th November, 1983 she was served with a notice by registered post on 28th November, 1983 directing her to inform the school authorities the cause of her such absence and non-submission of leave application, but the said letter was refused. Thereafter Smt. Anjali Jana a senior assistant teacher of the school was deputed to the writ petitioner on 16th February, 1984 with a letter from the Secretary of the School forwarding therewith a copy of the resolution of the Managing Committee dated the 9th February, 1984 requesting her to contact the school authorities on or before the 21st February, 1984. The petitioner came to the school on 17th February, 1984 and submitted leave application for 9 months with effect from 14th November, 1983. The Managing Committee of the School in its meeting dated the 23rd May, 1984 considered the said application and granted her leave without pay for 9 months with effect from 14th November, 1983 till 13th August, 1984 and directed her to join the school on 14th August, 1984 without fail. The petitioner duly received and acknowledged the said resolution of the Managing Committee on 3rd September, 1984 but after the expiry of the leave period the petitioner neither joined the school on 14th August, 1984 or ever thereafter nor sent any information to the school authorities. As per the resolution of the Managing Committee dated the 27th August, 1984 the petitioner was then served with a show-cause notice regarding her absence with effect from 14th August, 1984 under registered post with acknowledgement due directing her to reply on or before 10th September, 1984 but no response was received from her although she received and acknowledged the said notice. Then as per resolution of the Managing Committee dated the 15th September, 1984 another letter was served upon the petitioner asking her to show-cause by 15th October, 1984 regarding her long absence from duties but the said notice was refused by the petitioner. Lastly, on 30th October, 1984 a show-cause notice was issued to the petitioner by the Secretary of the School asking her once again to explain her long absence without notice from the school by 29th November, 1984 and it was also mentioned therein that failing such explanation her service would be terminated, but no response was received from her although the letter was received and acknowledged by her. The matter was then reported to the Secretary, Board of Secondary Education, West Bengal by the Secretary of the School in a latter dated the 24th April, 1985 alleging inter alia that the petitioner was guilty of gross professional misconduct and requesting for directive of the Board upon the school authorities. It was also mentioned in that letter that the interest of the school, particularly teaching of science subjects was being hampered for a long time. Then two reminders were also issued to the Secretary of the West Bengal Board of Secondary Education and ultimately by letter dated the 10th April, 1986 the Secretary of the Board wrote to the Secretary of the School informing that the matter was referred to the Committee constituted under Section 24 of the West Bengal Board of Secondary Education Act, 1963 for dealing with the cases relating to disciplinary proceedings against the teachers and non-teaching employees of the recognised (Non-Government Institutions (Aided and Unaided) under Rules 28(8), 28(8a) and 28(9)(viia) of the Management Rules and the said Committee was of the opinion that in the absence of any specific proposal of the school authorities in the matter of the service of the petitioner, the delinquent teacher, the said Committee was unable to issue any directive in the matter and the school authorities were directed by the Committee to adopt specific resolution in respect of the service of the petitioner and forward the same to the Board for its consideration. Thereafter the Managing Committee of the school in its meeting on 5th May, 1986 resolved that the service of petitioner be terminated immediately in the interest of the school as she had been absenting herself without showing any reason or seeking any permission from the school authorities for a long period causing grave situation in teaching science subjects. It was further resolved in the said meeting that the Board be requested to accord necessary permission to appoint temporarily one B.Sc. assistant teacher immediately in place of the petitioner for the interim period till a decision of the Board is obtained as there is no B.Sc. teacher to teach mathematics and science in the school. The resolution of the Managing Committee dated the 5th May, 1986 was then forwarded to the Board by the Secretary of the School under this letter dated 17th June, 1986 for consideration and appropriate guidance. Subsequently, a reminder in the matter was also issued to the Board on 16th September, 1986. The Secretary, West Bengal Board of Secondary Education in due course by his letter dated the 23rd December, 1986 informed the Secretary of the School that the Committee constituted under Section 24 of the West Bengal Board of Secondary Education Act, 1963 to whom the matter was referred, after careful consideration of the facts and circumstances, observed that there were sufficient grounds for dismissing the petitioner from the service and that the recommendation of the Managing Committee of the school for such dismissal was in the best interest of the institution and therefore the proposal of the Managing Committee for dismissal of the petitioner from the service under the provisions of Rule 28(8) of the Management Rules was approved. Thereafter the Secretary of the School by his letter dated the 31st January, 1987 informed the petitioner as directed by the Managing Committee of the School that her service as assistant teacher of the school was terminated with effect from 14th August, 1984 as per approval of the West Bengal Board of Secondary Education. The said letter was duly received and acknowledged by the petitioner. Due to the dismissal of the petitioner a permanent vacancy occurred and the District Inspector of Schools by his Memo dated the 4th July, 1987 accorded permission for appointment of a teacher to fill up the vacancy caused by the dismissal of the petitioner. The Managing Committee of the School after taking interview of candidates sponsored by the Employment Exchange prepared a panel of 3 candidates and submitted the same to the District Inspector of Schools for approval but the District Inspector by his order dated the 14th June, 1990 cancelled the said panel directing the Managing Committee to prepare a fresh panel in accordance with law. Challenging the legality and validity of the said order a writ petition was moved on behalf of one Mrs. Kanina Sahu before this Court whereupon Mahitosh Majumdar, J. passed order setting aside the said order of the D. I. of Schools and directed him to proceed with the matter in accordance with law. At the concluding stage of the hearing on the present writ petition, it is submitted before me by the learned Advocate for the respondents that the District Inspector of Schools has by his order dated the 1st October, 1992 approved the panel prepared by the Managing Committee of the School and accordingly appointment also has been given recently to fill up the vacancy caused by the termination of the service of the petitioner and as such there is no vacancy available now for the petitioner. In this paragraph 1 have described the case of the respondents. It is however to be mentioned here that the petitioner denied inter alia the contentions of the respondents regarding the issuance and service of alleged letters and notices by the school authorities upon her. Receipt of the letter of dismissal is however not denied. It may be mentioned here that the writ petition was filed in January, 1992.
(3.) At the hearing the learned Advocates of both sides placed before me Rule 28(8) of the Management Rules and thoroughly discussed the same for bringing out its requirement and import. Rule 28(8) prescribes the procedure for removal or dismissal of a teacher or other employee of a school. It has been a very forceful contention of the learned Advocate for the petitioner that in terminating the service of the petitioner the concerned authorities did not follow the procedure prescribed in the said Rule 28(8) and rather acted in flagrant violation of the same and therefore the impugned order of dismissal of the petitioner should be struck down on that ground alone. Hence it is necessary to study Rule 28(8) and for that purpose the said Rule is quoted below: "28(8). Both in aided and unaided institution 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 employee concerned, and offer him reasonable facilities 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, explanation 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".;