Shekhar B.Saraf - (1.) The grievances raised and issues involved in all the five writ petitions are common, and accordingly they were heard together and are being decided conjointly. The main issue involved in the writ petitions is that the writ petitioners were appointed as nonteaching staff (Group D) of the respondent school and the respondent school has initiated disciplinary proceedings against all the five writ petitioners. The main issue in these writ petitions is whether the said respondent school can continue with the said disciplinary proceedings initiated against the said writ petitioners.
(2.) For the purpose of convenience, the facts in writ petition W.P. No. 42 of 2017 are being taken into consideration and are chronologically delineated hereinbelow: a. The writ petitioner was employed as a sweeper with The Calcutta Boys' School [hereinafter referred to as the 'said school'] in the month of July, 1986. b. In a meeting of the managing committee of the Calcutta Boys' School held on 10th February, 2015 it was brought to notice of the committee that an erstwhile gardener namely Mr. Arup Rong had made several allegations against the Principal and Secretary, Mr. Raja McGee. It was also brought to the notice that certain non-teaching staff members (including the petitioner herein) had collaborated with the said gardener who filed a criminal case against other staff members including the Principal and Secretary, Mr. Raja McGee. In order to take appropriate steps and to maintain the reputation of the school, the managing committee decided and resolved that the Enquiry Committee constituted on 27th April, 2013 shall be empowered to hold an enquiry against all the employees of the school that had lodged complaint against the staff members of the school including Mr. Raja McGee. The said resolution is provided below: "RESOLVED THAT, the same Enquiry Committee, constituted on 27th April 2013, be appointed to conduct an enquiry to probe into the circumstances which led to the conspiracy against the Principal & Secretary and the interest of the School; THAT, the Enquiry Committee shall enquire into all aspects including involvement of the staff of the Calcutta Boys' Schools and such other people; THAT, the Enquiry Committee be empowered to initiate Departmental proceedings against all the employees of the School that had and or have lodged false/malicious complaints against the Staff Members of the School, including, Mr. Raja McGee, Principal & Secretary in support of the case of the gardener, Arup Rong by issuing Show Cause notice to them; THAT, in the event of replies to the Show-Cause notices not being found satisfactory the Enquiry Committee be empowered to appoint an Enquiry Officer to conduct the Enquiry in accordance with law and strict adherence to the principles of Natural Justice, Equity and Fair Play; THAT, the Enquiry Committee be empowered to initiate necessary steps/actions as deemed fit to facilitate a smooth and fair process of Enquiry and that it be obligatory for all persons concerned to cooperate with the Enquiry Committee/ Enquiry Officer duly appointed, and to comply with all instructions/ directives issued by them; FURTHER RESOLVED THAT, the Enquiry Committee evaluate the findings and submit its report to the Chairman, Bishop Dr. Phillip S. Masih, in a tentative period of three months. Any alteration in the period of enquiry would be in consultation with the Chairman, Bishop Dr. Phillip S. Masih." (underlined by me for emphasis) c. On 12th April, 2016 the writ petitioner was served with a show cause notice [hereinafter referred to as 'said show cause notice'] by the Enquiry Committee of the said school and in lieu of such show cause notice the writ petitioner on 20th April, 2016, replied to the said show cause notice. Thereafter, on 13th May, 2016, the writ petitioner received a letter of 'Suspension Pending Enquiry' from the Enquiry Committee of the said school which was to come into effect from 15th May, 2016. d. It was informed to the writ petitioner on 30th May, 2016, by way of a Charge Sheet containing the Articles of Charge [hereinafter referred to as the 'said Charge Sheet'] by the said school that the Enquiry Committee of the said school had decided to initiate a Domestic Enquiry Proceeding [hereinafter referred to as the 'said Enquiry Proceeding'] against the writ petitioner which was to be conducted by an Enquiry Officer. The relevant portion of the Article of Charge framed against the writ petitioner by the respondent School Authorities are quoted below: "ARTICLE of CHARGE I UNAUTHORISED ABSENCE That 15th.August has all along been a day to commemorate the Independence Day Celebrations in School, wherein it is mandatory for all Teaching/Non Teaching staff to be physically present, for the Flag Hoisting. Despite specific notice having been issued, as per norm, you, Mr. John Gomes, kept yourself deliberately and wilfully absent on 15.08.2013 without prior leave and or permission, of the School Authorities. ARTICLE of CHARGE II INSUBORDINATION The School Authorities issued a letter dated 16th. August, 2013 warning you not to repeat such act in future. You refused to accept the letter and the same was dispatched by post at your residential address. You, Mr. John Gomes, deemed it fit to ignore the said letter. ARTICLE of CHARGE III GIVING FALSE FABRICATED EVIDENCE TO THE PREJUDICE OF THE REPUTATION, GOODWILL OF THE SCHOOL A complaint had been filed by one Arup Rong, [subsequently found to be false] being Taltala P.S. Case No. 288/08.08.2013 u/s 377 IPC against the Principal, Mr.Raja McGee alleging acts of unnatural sex. You have recorded statements u/s 161 Cr.PC, before the investigating officer, on 26/09/2013 in support of the statements of Bansi Jana and Sanjay Kumar alleging that you are a witness of the act of threat and intimidation by the Principal, Mr. Raja McGee and Office Assistant Indraman Jaiswal on 26.08.2013, 04.09.2013 and 09.09.2013 wherein they were threatened of losing their jobs if they support the cause of said Arup Rong in the Taltala P.S.Case 288 dt 08.08.2013 u/s 377 IPC." e. The writ petitioner being aggrieved by the said show cause notice filed a Writ Petition bearing W.P. No. 524/2016 before this Court on 15th June, 2016, praying before this Court as follows: "i) Writ/Order/Direction in the nature of Prohibition do issue upon the respondents prohibiting them from taking any step further and/or further step on the basis of the impugned show cause notice dated 12th April, 2016 being Annexure "P-2" herein and from exercising powers not warranted under the statute; ii) Writ/Order/Direction in the nature of Mandamus do issue upon the respondents to rescind/cancel/withdraw the impugned show cause notice dated 12th April, 2016 being Annexure "P-2" herein and further to command them to act and proceed thereafter strictly in accordance with law; iii) Writ/Order/Direction in the nature of Certiorari do issue upon the respondents to produce and/or cause to be produced the entire records relating to the issuance of the show cause notice dated 12th April, 2016 being Annexure "P-2" herein and on such production being made render conscionable justice by quashing the same;" f. It is to be noted that in the above writ petition there were three respondents namely (a) Calcutta Boys' School, (b) Mr. Raja McGe, Principal and Secretary and (c) Mr. Rev. Mahendra Mishra, Enquiry Committee, Calcutta Boys' School. g. Subsequent to filing the writ petition, the petitioner wrote to the respondent no. 3, that is Mr. Mahendra Mishra, Member Enquiry Committee and agreed to participate in the hearing before the Enquiry Officer. The contents of the letter are provided below: "Re : Your letter dated 30th May, 2016. Sir, 1. By a letter dated 30th May, 2016 you have asked the undersigned to submit the written statement against the Memorandum of alleged charges framed by your good office. The said letter was received by the undersigned on 22.06.2016. 2. In compliance of your direction I submit that I am ready and willing to attend your office in person to participate in the hearing of the case and to submit written statement about my defence against the alleged allegation of insubordination. 3. You are, therefore, requested to provide a little more time and to allow the undersigned to take the assistance of a legal practitioner as the undersigned has no knowledge about the proceedings which has been drawn up by your good office/Enquiry Officer." h. The Writ Petition bearing W.P. No. 524/2016 was disposed of by Hon'ble Justice Shivakant Prasad by an order dated 14th July, 2016, which says as follows: "Accordingly these sets of writ applications can be disposed of with a common order with this finding that since the petitioners have already submitted to the Enquiry Authority, the Enquiry Authority will give proper opportunity to the petitioners to submit their defence statement and to offer them the defence assistant from any of the senior members of the staff of the school or if they desire any legal assistance may be given from any lawyer of their choice. Accordingly, the Enquiry Authority after submission of a statement of defence will conclude the enquiry proceedings preferably within one month from date without affording any unnecessary time to the petitioners." i. On 27th July, 2016, the writ petitioner diligently answered to the said Charge Sheet drawn against him and also specifically replied to the Articles of Charge drawn against the writ petitioner. j. On 16th August, 2016, the Enquiry Committee by way of a notice informed the writ petitioner that an Enquiry Officer has been appointed to conduct the said Enquiry Proceeding and therefore the writ petitioner was asked to be present on 23rd August, 2016, in the premises of the said school. k. The writ petitioner failed to represent himself on 23rd August, 2016, before the Enquiry Committee and the same was also recorded. Thereafter, the writ petitioner was served with the second notice of Enquiry on 23rd August, 2016, and was asked to be present for the said Enquiry Proceeding to be held on 30th August, 2016, in the school premises. l. On 30th August, 2016, the writ petitioner appeared before the Enquiry Officer with his legal representative. The Enquiry Officer denied the legal representative of the writ petitioner to participate in the said Enquiry Proceeding stating that such action of writ petitioner is not duly authorised by the Enquiry Committee. Thereafter, the said Enquiry Proceeding was adjourned till 5th September, 2016. m. Being aggrieved by the conduct of the Enquiry Officer the writ petitioner on 7th September, 2016, filed another writ application bearing W.P. No. 913/2016 praying before the Court as follows: "i) Writ/Order/Direction in the nature of Prohibition do issue upon the respondents prohibiting them from continuing the enquiry proceeding ex-parte or to take any step and/or further steps on the basis of the impugned Article of Charge being Annexure "P-3" herein and from exercising power not warranted under the statute; ii) Writ/Order/Direction in the nature of Mandamus do issue upon the respondents to rescind/cancel/withdraw the impugned show cause notice, order of suspension and Article of Charges issued on 13th May, 2016 and 30th May, 2016 being Annexure "P-3" herein and further to command them to act and proceed thereafter strictly in accordance with law; iii) Writ/Order/Direction in the nature of Certiorari do issue upon the respondents to produce and/or cause to be produced the entire records relating to enquiry proceeding dated 29th August, 2016, being Annexure "P-6" and on such production being made render conscionable justice by quashing the same;" n. It is to be noted that in the above writ petition there were eight respondents namely (a) State of West Bengal, (b) Calcutta Boys' School (c) Rev. Bishop Philips, (d) Raja McGee, Principal and Secretary, Calcutta Boys' School, (e) Mr. S.N. Lahiri, Member Enquiry Committee, Calcutta Boys' School, (f) Mr. Darryl Joseph, Presenting Officer, Enquiry Committee, Calcutta Boys' School, (g) Rev. Mahendra Mishra, Enquiry Committee, Calcutta Boys' School (h) Mr. Amit Prakash Lahiri. o. The writ petition bearing W.P. No. 913/2016 was allowed by Hon'ble Justice Rajiv Sharma by an order dated on 8th November, 2016, which says as follows: "This Court directs Mr. Lahiri, a practising Advocate of this Court, who has already been engaged as the defence assistance before the enquiry officer, to appear before the enquiry officer as and when the date is fixed by the said enquiry officer and in case of any opposition by the school authority or the enquiry officer, Mr. Lahiri shall inform the Commissioner of Police, Kolkata, about the same in writing who, in turn, shall ensure proper assistance of police authorities to Mr. Lahiri so that he can appear as the defence assistance of the petitioner before the enquiry officer as and when the date is fixed." p. Thereafter, the writ petitioner along with his legal representative was present on 16th December, 2016, before the Enquiry Officer for the continuation of the said Enquiry Proceeding in accordance with the order passed by this Court on 8th November, 2016. The Enquiry Officer fixed the next date of hearing on 3rd January, 2017, to which the writ petitioner objected but the said objection was not entertained by the Enquiry Officer. q. On the next date of hearing that is on 3rd January, 2017, the legal representative of the writ petitioner came up for the very first time with an objection challenging the maintainability of the said Enquiry Proceeding and challenging the authority of the Disciplinary Committee of The Calcutta Boys' School. Further, the Enquiry Officer intervened and said that the defence will be given all reasonable opportunity to present their defence when their turn comes. Hence, the next date for hearing was fixed on 6th January, 2017. r. On 6th January, 2017, the legal representative of the writ petitioner by way of a letter wrote to the Enquiry Officer challenging the legal validity and authority of the said Enquiry Proceeding initiated against the writ petitioner. s. As the enquiry was not held on 6th January, 2017, the same was rescheduled and was held on 10th January, 2017, wherein, the said letter dated 6th January, 2017, was taken up and the Enquiry Officer made a remark that the Enquiry Officer was not the appropriate forum to deal with the points mentioned in the said letter. t. The petitioner immediately thereafter, on January 19, 2017 filed the present writ petition challenging the Order of Suspension and Article of Charge dated 13th May, 2016 and 30th May, 2016 passed by the said school. It is to be noted that the writ petitioners in all the other writ petitions are also challenging the same Order of Suspension and Article of Charge dated 13th May, 2016 and 30th May, 2016 passed by the said school. It is to be noted that in all the above writ petitions there are eight respondents namely (a) State of West Bengal, (b) Calcutta Boys' School (c) Rev. Bishop Philips, (d) Raja McGee, Principal and Secretary, Calcutta Boys' School, (e) Mr. S.N. Lahiri, Member Enquiry Committee, Calcutta Boys' School, (f) Mr. Darryl Joseph, Presenting Officer, Enquiry Committee, Calcutta Boys' School, (g) Rev. Mahendra Mishra, Enquiry Committee, Calcutta Boys' School (h) Mr. Amit Prakash Lahiri.
(3.) Mr. Sudip Deb learned counsel appearing on behalf of the petitioner submits to the Court that the writ petitioner is a non-teaching staff of the said school and the enquiry proceedings initiated against the writ petitioner is not valid in the eyes of law.;