PROTIK PRAKASH BANERJEE,J. - (1.) A para teacher appointed after due process was not allowed to rejoin his duties after Puja vacation on November 2, 2016. He was prevented by the respondent No. 12/13 from doing so. On enquiry he was told that this was because of the allegation stated to be against him in respect of a first information report which appears at Annexure P/7. Apparently he made representation against the same to the respondent No. 6/7 which appears at page '32' (Annexure P/3) resulting in a cryptic Memo as in Anneuxure P/6 dated April 7, 2017 whereby the respondent No. 6/7 informed the petitioner through the respondent No. 8/9 that the joining of the writ petitioner will be considered only after completion of the trial in connection with Kaliachak P.S. case No. 642/2016 dated September 25, 2016. Hence the present writ petition has been filed under Article 226 of the Constitution of India.
(2.) On going through the records disclosed in the writ petition it appears that the first information report is based on a written complaint which too is an enclosure to the first information report. Neither the first information report nor the written complaint states that the name of the accused is Abdul Wahab Azad. Both these documents allege that the name of the fifth accused is Ohab Sk and also allege that he is the son of Md. Akimuddin Sk. From the letter of appointment of the writ petitioner appearing at annexure P/1 it appears that his name is Abdul Wahab Azad and not Ohab Sk. Therefore, on the face of the records it does not appear that the authorities of the Sarva Shiksha Mission had sufficient materials before them to treat the writ petitioner as the fifth accused without even the first information report alleging that the name of the fifth accused was Ohab Sk. @ Abdul Wahab Azad.
(3.) I would have made heavier weather of this arbitrariness on the part of the authorities of the Sarva Siksha Mission, Malda, had it not been for the fact that the writ petitioner, no doubt on advice given by those who called themselves lawyers in Malda , surrendered and was enlarged on bail and the only step he took against such arbitrary deprivation by the State and its authorities of his right to livelihood was to make an effeminate representation for justice. As such it is clear that the writ petitioner has accepted himself as accused Ohab Sk. but he was innocent and at any rate he could not be deprived of his livelihood on the mere allegation of having committed an offence. This appears from the facts pleaded in the writ petition on the face of which the grounds have been taken. Relevant paragraphs containing the same are reproduced hereinbelow: "13 The petitioner states that firstly, he has been falsely impleaded in the police case as in the F.I.R. and prayer for lodging complaint, no where the name of your petitioner has been written. Moreover, on 24.09.2016, when the police authority visited the place of occurrence, i.e., around 10.15 P.M., the petitioner was also found in the place. Nothing has been recovered from the petitioner like other accused persons ever. Nor he has been detained in custody even for a single day. In the complaint of the police department also, nowhere it can be found that your petitioner has been absconded. In this context, it is pertinent to mention here that the name of your petitioner has been impleaded only as a suspected person. No proof, nothing has been found against your petitioner by any of the competent authority and he has also granted bail from the competent Court of Law. Copies of the F.I.R. and the prayer for lodging complaint by the police authorities are annexed hereto and collectively marked with the letter "p-7". 14. The petitioner further states that no departmental enquiry and/or proceedings have ever been initiated against your petitioner and moreover, there is no impediment under any of the provisions of law, in which the authority concern had deny/restraint your petitioner to join in the said school as a para teacher. 15. Moreover, the petitioner had yet been convicted by any competent Court of Law and moreover, no concrete charge has ever been made against your petitioner and therefore, the authority concern, have illegally restraint your petitioner to resume/re-join in the said school as a para teacher. 16. The petitioner further states that he has been falsely made a party in the criminal case and your petitioner prayed before this Hon'ble Court that he is an innocent person. 17. The petitioner states that he did know, when the trial of the criminal case has been concluded and if the plea of the authority is like that, therefore, the petitioner only suffer from financial stringency but also his fundamental rights have been infringed. 18. The petitioner states that there is no provision of law, wherein it is stated that an incumbent cannot be allowed to join/resume his duty as a para teacher due to the pendency of criminal case and that too on the advice of the Learned Government Pleader. 19. The petitioner states that only the same the concern authority has also stopped the remuneration of your petitioner since November, 2016 and for the same the petitioner alongwith his old, aged parents, wife and daughter suffers from great financial hardship and due to such act of the concern respondent authorities, the petitioner faced all such problem. 20. The petitioner states that he cannot be obstructed from joining his duties on the ground of pendency of the criminal case. Moreover, there is a settled principles of law that pendency of the criminal cases does curtain any right of an accused person till his conviction and in this instant case even the charge against your petitioner has been proved and after knowing all this things, the authority concern has obstructed your petitioner from joining in the said school as a para teacher and as such the said action of the concern authority is nothing but violation of fundamental rights as enshrined in Article 14 and 21 of the Constitution of India.";