Arun K. Mukherjea, J. - (1.) The short facts of the case are as follows: The petitioner was a record-supplier in the Office of the Board of Secondary Education (hereinafter referred to briefly as 'the Board') which had been constituted some time in 1950 under the West Bengal Secondary Education Act (37 of 1950). Some time in April, 1960, there was a theft and leakage of certain question papers from the office of the Board. The petitioner along with two other employees of the Board was suspended by an office order of the Board. The petitioner was later on prosecuted for an offence under S. 120-B and S. 380 of the Indian Penal Code. The petitioner was acquitted of the offence charged under S. 380 of the Indian Penal Code but was found guilty under S. 120-B of the Indian Penal Code and sentenced to eighteen months' rigorous imprisonment. The petitioner preferred an appeal before this High Court from the aforesaid order of conviction and sentence. The appeal was admitted on 17th March, 1961 and the petitioner was released on bail on the same day. On 17th March, 1961, the Board passed an order dismissing the petitioner from service with effect from 20th February, 1961 on the sole ground of his conviction and sentence in a criminal case. There was no other charge or allegation made against the petitioner and the Board apparently did not consider it necessary to start any disciplinary proceeding against the petitioner before passing the order of dismissal. The petitioner, as was to be expected, protested against the order of dismissal and asked for rescission of the order of dismissal. Such request was, however, rejected by the Administrator of the Board. By an order dated the 18th March, 1964, a Division Bench of this High Court allowed the petitioner's appeal and set aside the order of conviction and sentence that had been passed on the petitioner earlier. It is not necessary for us to go into the details of the grounds on which the order of acquittal was made but it may be of some relevance to point out that the learned Judges of the Division Bench, while acquitting the accused, made an observation that they were not even satisfied that there had in fact been a theft from the Board's Strong Room. Immediately after this acquittal the petitioner informed the Secretary of the Board about this fact of acquittal and asked him to withdraw the order of dismissal and to reinstate him in his original post of record-supplier and also asked for payment of arrear salaries with such allowances and increments as he would have been entitled to in the ordinary course from the date of suspension up to the date of such reinstatement. Neither the Secretary nor the Board took any notice of this letter. What is more surprising is that neither the Secretary nor the Board considered it necessary to send even a reply to the petitioner. Some time later, the petitioner sent a copy of the judgment of this High Court to the Board. The reaction of the Board was again the same. The Board neither took any action nor cared to send a reply to the petitioner. The petitioner has now come up with an application under Article 226 of the Constitution of India for a writ of mandamus or a writ in the nature thereof commanding the respondents to cancel or rescind the order of dismissal dated the 17th Mar. 1961 and to treat the petitioner as if he has been in continuous and uninterrupted service of the respondent and to pay all arrears of salary due to him. Though this really covers all the facts that are necessary tor dealing with this case, there is one other important aspect of the matter which ought to be mentioned at this stage.
(2.) The West Bengal Secondary Education (Temporary Provisions) Act was enacted in 1954 by which all powers, duties and functions of the Board were in effect given to an Administrator appointed by the State Government. Section 8 of the Act of 1954 stated that this Act was not to be construed as effecting or implying in any way the dissolution of the Board as a body corporate. It is this Administrator who was acting as the Board at the time of the suspension and subsequent dismissal of the petitioner. Thereafter, another Act was passed in 1963 called the West Bengal Board of Secondary Education Act, 1963. This Act came into force on the 1st of January, 1964. I shall hereinafter refer to this Act briefly as 'the new Act'. The new Act authorises the State Government to establish a Board named the West Bengal Board of Secondary Education. The Board that was set up under this Act was for all practical purposes a successor to the old Board in the sense that it was to carry on the duties and functions of the Board as if the old Board under the 1950 Act as modified by the subsequent 1954 Act and the new Board under the new Act were one and the same "person". For the sake of convenience and to avoid confusion, I shall hereafter refer to the Board constituted under the new Act as 'the new Board' and the Board that was functioning under the Acts of 1950 and 1954 as 'the old Board'. Section 46 of the new Act is the most important section for our purposes and is set out verbatim as hereunder: "46, (1) The West Bengal Secondary Education Act, 1950 (hereinafter referred to as 'the said Act'), and the West Bengal Secondary Education (Temporary Provisions) Act,1954, are hereby repealed. (2) Upon such repeal, (a) all property and assets vested in the Board of Secondary Education and all rights, liabilities and obligations acquired by such Board before the commenment of this Act shall stand transferred to the State Government: Provided that the State Government may by order made in this behalf re-transfer all or any of such property or assets to the Board and thereupon such property or assets shall vest in the Board, (b) all legal proceedings or remedies instituted or enforceable by or against the Board of Secondary Education before the commencement of this Act may be continued or enforced, as the case may be, by or against the Board, or until the Board is established by or against such officer or authority as the State Government may by order specify, (c) all officers and other persons in the employment of the Board of Secondary Education immediately before the commencement of this Act shall, until other provision is made, continue in the service of the Board, (d) all recognised schools shall be deemed to have been recognised under this Act until the expiration of the period of recognition subject, however, to the power of the Board to withdraw recognition in accordance with the provisions of this Act, (e) all syllabuses, courses of studies and text-books in force shall, until other provision is made under this Act, continue to be followed, and (f) all appeals, referred to in sub-sec. (3) of Section 30 of the said Act and pending immediately before the commencement of this Act, shall be continued and be heard and determined by the Appeal Committee constituted under Section 18 of this Act, and, until such Appeal Committee is constituted, by the Director of Public Instruction, Government of West Bengal and for the purpose of disposal of such appeals the regulations made under the said sub-section (3) of Section 30 of the said Act shall be deemed to continue in force." It will appear that even after the repeal of the Act of 1950 as well as of the Act of 1954, all legal proceedings or remedies instituted or enforceable by or against the previous Board were to continue against the new Board. It will also appear that all officers who were in the employment of the old Board immediately before the commencement of the new Act were to continue in the service of the new Board.
(3.) On these facts I can see almost no answer to the petitioner's case that immediately after his acquittal by the High Court he was entitled to be reinstated to his old post of record-supplier and also to get all arrear salaries and other benefits not only as if he had been in the employment of the new Board ab initio but also as if he had been so continuously from the date of his dismissal. Indeed, I have grave doubts whether the old Board was right in dismissing the petitioner on 17th March, 1961, without drawing up any disciplinary proceedings or without giving him a reasonable opportunity of defending himself against any charge or allegations that the old Board might have had against the petitioner merely on the ground of his conviction on a criminal offence in a Court of law, There is no doubt that the old Board was acting on the principle that is embodied in proviso (a) to Article 311 (2) of the Constitution of India which provides that if a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge, he cannot invoke the provision of Article 311 (2) under which such dismissal or removal or reduction is prohibited until he has been given a reasonable opportunity of showing cause against the action, if is almost certain that Article 311 (2) did not apply either to the old Board or to the servants of the old Board. (In fact, that Article does not apply to the servants of the new Board either.) Therefore, the law that will apply in the case of the petitioner is the law that has been laid down by the Supreme Court in the case of Dock Labour Board v. Jaffar Immam, A.I.R. 1966 SC 282 . The Supreme Court has held that where a statutory body or authority is empowered to terminate the employment of its employees, the said authority or body cannot be heard to say that it will exercise that power without due regard to the principles of natural justice. In delivering the judgment of the Supreme Court in this case, Gajendragadkar J. followed the earlier decisions of the Supreme Court in the Associated Cement Co, Ltd. v. P. N. Sharma, A.I.R. 1965 SC 1595 and Bhagwan v. Ram Chand, A.I.R. 1965 SC 1767. and also the test laid down by Lord Reid in Ridge v. Baldwin, 1964 AC 40 . In this view of the matter, I do not see how the dismissal of the petitioner by the old Board in the circumstances of this case can be defended or sustained. Even assuming that the old Board could legally dismiss the petitioner without giving him a reasonale hearing on the ground of his conviction and sentence by a Criminal Court, it is difficult to find any justification for the old Board's refusal to reinstate him as soon as the order of conviction and sentence were set aside on appeal. It is a well-known principle of law that as soon as a person convicted of a criminal offence is acquitted on appeal, it is to be taken as if there was no conviction at any stage. Some decisions have even gone to the extent of saying that after acquittal one should proceed on the basis as if no charge had ever been made against the delinquent. In Union of India v. R. Akbar, A.I.R. 1961 Mad 486 a Division Bench of the Madras High Court held that an acquittal of a person of a criminal charge by a higher Court setting aside the conviction passed by a subordinate Court or an inferior Court tantamounts to the person not having been convicted at all. The setting aside of a wrong order of Court results in the position as if such order was never in existence though as a fact the order had been passed and lasted till it was set aside.;