- (1.) A clause in the applicable rules relating to suspension of a primary school teacher falls for consideration in this appeal. The appellants are aggrieved by the order allowing the writ petition without calling for any affidavits and insist that the matter is of some significance on a point of principle.
(2.) FOLLOWING a criminal complaint against him, the writ petitioner-a head teacher at the Kubra Primary School under the Birbhum District Primary school Council-was arrested and produced before the Sub-Divisional Judicial magistrate in Rampurhat on August 6,2002. He remained in detention thereafter and was enlarged on bail on November 11, 2002. On November 1, 2002 the chairman of the District Primary School Council issued a letter of suspension citing the petitioner's detention in custody for a period exceeding 48 hours and the chairman's authority under a notification of February 5,1977 to issue the order of suspension. The order of suspension continued despite a representation of January 6, 2006 made by the writ petitioner for withdrawal thereof. The writ petition was filed in or about March, 2007 seeking a mandamus for rescinding the suspension notice and ancillary writs and directions. The learned Single Judge held that the petitioner could not continue to remain suspended after he was enlarged on bail as the order of suspension was to come to an end immediately upon the release of the petitioner. The notice of suspension was quashed and the reasons given in the impugned order are as follows : "this Court had considered the aforesaid issue repeatedly and specifically held that suspension ends on the release of the teacher concerned from custody. It is well settled that the "deemed suspension" will come to an end when the concerned teacher will be released from detention by the competent criminal Court and mere pendency of investigation on a criminal charge cannot be a sufficient ground for keeping a teacher under suspension. In the case of Basudev Malik v. State of West Bengal, reported in (2004)1 Cal HN, page 32 Justice bhattacharya specifically held that upon release of the teacher from detention by the competent criminal Court, the "deemed suspension" will come to an end. The relevant portion from the aforesaid judgment is quoted hereunder : the moment he will be released from detention by the competent criminal court the "deemed suspension" will come to an end and the petitioner should be permitted to join his duty subject to the final decision in the criminal case. ' the identical view was also taken by this Hon'ble Court in the following decisions : (i) (2006)1 Cal HN, 34 (Chhabi Chakraborty v. State of West bengal) and (ii) (2006)2 Cal LJ (Cal), 456 (Malay Kumar Laha v. Visva bharati ). "
(3.) THE appellants argue that the learned Single Judge did not consider the matter in the context of the applicable rules. Counsel for the District Primary school Council says that the Basudef v. Malik judgment that the learned Single judge relied on was rendered on a different set of rules ; that the Chhabi chakraborty judgment is at variance with a Supreme Court pronouncement; and, that the Malay Kumar Laha verdict was given by a learned Single Judge by merely relying on His Lordship's earlier decision in the Chhabi Chakraborty case. Counsel submits that the rules relevant in the present context are substantially the same as the rules that fell for consideration of the Supreme court in the judgment reported at (2003)6 SCC 516 : (2003)2 WBLR (SC) 587 (Union of India v. Rajiv Kumar ). It is urged that there was no settled position of law, on the construction of the applicable rules, that the learned Single Judge could rely on to quash the order of suspension without calling for any affidavit.;