SHEKHAR B.SARAF,J. - (1.) This is an application under Article 226 of the Constitution of India wherein the writ petitioner is aggrieved by an order passed by the President, West Bengal Board of Secondary Education dated July 3, 2018.
(2.) By this order the President has passed an order approving the proposal for disciplinary proceedings (second stage) against the writ petitioner and the quantum of punishment being compulsory retirement from service. In the said order the President has also requested the School authority to lodge a FIR at the local Police Station for further investigation under proper sanction of law.
(3.) Mr. Bari appearing on behalf of the writ petitioner submits that the order per se is null and void as it has been passed by the President of the Adhoc Committee. He relied on Rule 28(8) of the Rules for Management of Recognised Non-Government Institution (Aided and Unaided), Rules, 1969 (hereinafter referred as the 'said Rules') as modified on January 8, 2010 to submit that the power of the Board to grant prior approval has to be exercised by the Board itself and not by the President of the Board. He submitted that the second stage approval has to be granted by the Board, and in the present case, the Adhoc Committee that has been given the power of the Board by the West Bengal Board of Secondary Education (Amended) Bill, 2016. He further submits that in the present case the enquiry report which has been relied upon by the President was never served upon the petitioner and non-supply of the enquiry report tantamounts to violation of the principles of natural justice that are required to be adhered to in disciplinary proceedings. To buttress his argument he relied on a Division Bench judgement of this Court in Sujit Das v. West Bengal Board of Secondary Education and Ors. reported in 1997 (2) CLJ wherein Rule 28 Clause 8 of the said Rules was considered. The relevant portions of the said judgement is delineated below : "30. A disciplinary proceedings as against a delinquent can be subdivided into 3 parts in terms of Rule 28(8) of the said Rules. The said Rule provides for drawing up of a formal proceeding and issuance of charge sheet to the teacher and offering him reasonable facilities for defending himself. The word 'formal proceeding' evidently means a proceeding initiated for the purpose of enquiring into the charges against the delinquent employee. In the said proceeding, the delinquent must be offered reasonable facilities for defending himself which, without any shadow of doubt, means that the principles of natural justice have to be complied with. The Rule of audi alteram partem roots in fairness. In entitles the delinquent to have a fair hearing. Charges when drawn up as against a delinquent are required to be proved in a proceedings after offering him reasonable facilities for defending himself. The word 'facilities' imports procedural fairness. 31. Unless the delinquent is provided with the facilities to have inspection and/or take copy of the documents upon which the Committee/Administrator relies upon, he cannot file a show cause, nor can the same satisfy the requirements of giving all opportunities to the delinquent Officer to defend himself. 32. Unless an effective show-cause is filed, the question of consideration thereof by the disciplinary authority at the first instance and Section 24 Committee at the second instance for the purpose of grant of approval would arise. 33. Moreover, the principles of natural justice in relation to a domestic enquiry must be held to comprise of two basic elements, i.e. the right to cross-examine the witness examined by the Managing Committee or the Administrator and right to examine witnesses in his favour. He at least is entitled to examine himself and make submissions as regards his defences. Unless, in my considered opinion, the Committee takes recourse to the said formalities, it cannot be said to have offered reasonable facilities for defending to a delinquent.";