- (1.) This writ petition has been moved challenging an office memorandum dated February 23, 2004 issued by the Chairman District Primary School Council, Nadia. In the office memorandum it has been stated that the petitioner, a Head Teacher of Raghunath Siromoni Primary School under Nabadwip P.S. has been suspended with effect from January 19, 2004 due to her detention in jail custody for period exceeding 48 hours in connection with Nabadwip P.S.Case No.05/2004 dated January 19, 2004 under section 498A/306/34 of Indian Penal Code as per Government Notification No.906-S.E.(Pry) dated July 09, 2001. It has also been stated that the petitioner will be paid subsistence allowance.
(2.) The deemed suspension has been provided in a Government Notification which takes the form of rule is the subject-matter of discussion here. It is to be decided as to whether this deemed suspension is permissible or not. It is also to be decided as to what would be the effective period of such deemed suspension. Initially, for guidance of service conditions of primary teachers, rules were there under 1930 and 1963 Act that is Bengal (Rural) Primary Education Act, 1930 and West Bengal Urban Primary Education Act, 1963. Under this Bengal (Rural) Primary Education Act, there was a Government Notification being No.1493-Edn, dated July 25, 1940(as amended).The contents of such notification is quoted hereinbelow : "14(ii) A teacher of a primary school against whom proceedings have been commenced on a criminal charge but who is not actually detained in custody (that is, a person released on bail) may also be placed under suspension. If the criminal charge is related to the official position of the teacher or involves any moral turpitude on his part, suspension shall be ordered unless there are exceptional reasons for not adopting such a course. (iii) A teacher of a primary school who is detained in custody for a period exceeding 48 hours as a result of the proceeding on criminal charge or otherwise shall be deemed to have been suspended by an order of the appointing authority. A teacher who is undergoing a sentence of imprisonment shall also be dealt with in the same manner. (iv) During the period of suspension, a teacher shall be entitled to: (a) A subsistence grant at such rate not exceeding one-half of the pay of the teacher on the date of suspension as the suspending authority may decide: Provided that where the period of suspension exceeds twelve months, the suspending authority shall be competent to increase the subsistence grant for any period subsequent to the period of the first twelve months by a suitable amount not exceeding fifty percent of the subsistence grant allowed during the first twelve months, if in the opinion of the suspending authority, to be recorded in writing the period of suspension has been prolonged for reasons not directly attributable to the teacher; (b) Dearness Allowance, if any, at the rate at which it was drawn on the date of suspension or such portion thereof as the suspending authority may direct : Provided that no payment under clause (a) or clause (b) shall be made unless the teacher furnished a certificate to the effect that he is not engaged in any other employment, business, profession or vocation. (v) In addition to the provisions for removal and dismissal from service as prescribed under Rules 12 and 13, a teacher may also be dismissed or removed from service or otherwise punished by the appointing authority with the approval of the Director of Public Instruction, West Bengal, in the event of his conviction in any Court of Law. (vi) The teacher shall, however, be reinstated and full pay and allowance for the period of suspension shall be paid to him when he is acquitted by the Court or when he is exonerated from the charges against him in the report of the District Inspector of Schools or a decision of the Board under Rule 12 or as a result of appeal under Rule 13. When he is awarded a punishment other than dismissal or removal from service, he may be reinstated and such portion of pay and allowance for the suspension period may be allowed as the appointing authority may decide. (vii) Leave shall not be granted to a teacher while he is under suspension or committed to prison. (viii) These rules shall not be applicable in the case of teachers who have been detained under any law relating to preventive detention."
(3.) As would appear from the notification, the same has been issued under the powers conferred under section 66 of the Bengal (Rural) Primary Education Act, 1930. The notification which took the shape of rule was issued and/or framed in exercise of powers conferred by sub-section (1) and, in particular, by clause (P) of sub-section (2) of section 66 of Bengal (Rural) Primary Education Act, 1930. With effect from September 20, 1974, West Bengal Primary Education Act, 1973 came into force which extended to whole of West Bengal. This Act covered rural and urban area both and became a comprehensive one.;