JUDGMENT
A. Kabir, J.
1. The respondent No. 1 in the appeal was appointed as the principal of the Krishnanagar Women’s College and her service was confirmed on 22nd December, 1990. On 24th March, 2000, she was served with a notice to show cause in respect of various allegations. The respondent No. 1 replied to the show cause notice on 7th April 2000, denying all the allegations contained therein. On 11th April, 2000, the Governing Body of the College decided to issue a charge sheet to the respondent No. 1 and placed her under suspension on the same day.
2. The order of suspension was challenged by the respondent No. 1 in a writ petition numbered A.S.T. No. 1562 of 2000 and on 16th May, 2000, the learned single Judge directed the respondent No. 1 herein to hand over the keys and other documents pertaining to the College to the Chairman of the Governing Body. The learned Judge also directed that the suspension order would be kept in abeyance, but granted liberty to the College authorities to take necessary steps after giving the said respondent a hearing in accordance with law and till such time the said respondent was to be treated as on leave.
3. The aforesaid order of the learned single Judge was challenged in appeal by the respondent No. 1 herein being M.A.T. No. 1824 of 2000. On 19th June 2000, on consent of the parties the writ petition was taken up for hearing and disposed by the Appeal Court. After considering the relevant provisions of the West Bengal College Teachers (Security of Service) Act, 1975, the Division Bench held that the order of suspension was valid and dismissed the writ petition. A direction was given to expedite the disciplinary proceedings and to conclude the same within three months from the date of the communication- of the order.
4. According to the respondent No. 1 herein when the stipulated time period was almost over she was informed by one Shri Nirmal Kanti Sarkar, advocate, by a letter dated 26th September. 2000, that he had been appointed as Enquiry Officer to conduct the disciplinary enquiry and by a subsequent letter dated 9th October, 2000, he instructed the respondent to submit her reply to the charge sheet dated 17th April 2000.
5. The respondent replied to the said letter on 14th October, 2000, indicating that she had not been informed by the Governing Body of the College of Shri Sarkar’s appointment as Enquiry Officer.
6. On 29th October 2000, the respondent made a representation to the authorities concerned to allow her to resumes her duties in the College since the period of three months stipulated by the Appeal Court had expired on 28th July, 2000. Subsequently by his letter dated 9th November, 2000, the President of the Governing Body of the College informed the respondent that Shri Sarkar had been appointed as Enquiry Officer in terms of the resolution of the Governing Body dated 12th July, 2000. On 3rd February, 2001, the Enquiry Officer wrote to the respondent asking her to inspect the documents in respect of the charges against her on 10th February, 2001, and to also submit her defense to him. In response to the said letter the respondent by her letter dated 7th February 2001, informed the Equity Officer that since the time to complete the disciplinary proceedings had expired, the enquiry could not be continued and that she had been advised not to participate in the proceedings at that stage.
7. As will appeal from the materials on record an application was made by the Governing Body of the College on 15th November 2000 for extension of the time to complete the disciplinary proceeding by a period of three months from the date of the order. The said application was taken up for hearing on 13th July, 2001, when the time to conclude the disciplinary proceeding was extended by a period of two months from the date of the order. On 29th August, 2001, the respondent No. 1 was informed by the President of the Governing Body that the Governing Body had decided to impose penalty of suspension of the respondent from her services up to 31st May, 2001, namely, till the date of her superannuation from service in the College. Such decision of the Governing Body appeared to have been taken at a meeting held on 27th February 2001.
8. It may be indicated that while the application for extension of time to conclude the disciplinary proceedings was pending the respondent filed a fresh writ application, being W.P. No. 2373(W) of 2001 questioning the continuation of the suspension order passed against her on 11th April 2000. The said writ application appears to have been dismissed for default on 23rd February, 2001, but was restored on 3rd April 2001. The said writ application was ultimately dismissed on 24th July 2001 on account of the various developments which had taken place in the interregnum.
9. Complaining that no enquiry had, in fact, been held and that she had been denied an opportunity of dealing with the allegations against her, the respondent challenged the report of the Enquiry Officer and the order of punishment passed on the basis thereof by way of a fresh writ application, being W.P. No. 14011(W) of 2001.
10. The respondent contended that penalty had been imposed on her out of sheer mala fide and personal malice in the absence of any enquiry. It was also contended that the respondent had suffered serious prejudice on account of non-supply of the report of the Enquiry Officer. The respondent contended that by imposing the order of penalty of suspension without supplying the copy of the enquiry report and giving her an opportunity of dealing with the same, the College authorities acted in violation of rule 9 of the West Bengal Teachers (Security of Service) Act, 1975 and such action was also violative of Articles 14 and 21 of the Constitution. It was urged further that the conduct of the appellants would clearly indicate that their decision was biased and predetermined with the object of causing serious prejudice to the respondent and jeopardizing her service career.
11. The matter came up for final hearing before the learned single Judge on 20th May, 2002. Holding that the penalty of suspension till the date of retirement is a final order which is to be governed under section 9(1) of the above Act, the learned single Judge was of the view that under the said provisions there was no scopes to impose such penalty. The learned Judge also held that such punishment as imposed on the writ petitioner/respondent could not be construed as a minor penalty but, is in effect a major penalty, which was imposed in the grab of a minor penalty. Holding further that the action taken by the authorities of the College was in colorable exercise of power and had been given effect to in the forum of a final order, the learned Judge observed that it had to be declared to be a major penalty like compulsory retirement, removal or dismissal in respect whereof the writ petitioner /respondent was entitled to a copy of the enquiry report and a second show cause notice and without compliance of such condition the penalty as imposed by the College authorities was without authority of law.
12. In view of his aforesaid findings the learned single Judge set aside the order of penalty impugned in the writ petition, with liberty to the authorities concerned to proceed in accordance with law. The said order of the learned single judge has been assailed by the Governing Body of the Krishnanagar Women’s College on the ground that the writ petitioner/respondent had been given ample opportunity to defend herself in the disciplinary proceedings but she had deliberately stayed away from the enquiry and had taken refuge in technical objections despite having knowledge of the fact that the said proceedings could not be completed within the time specified by the Court on account of certain factors which were beyond the control of the College authorities.
13. Appearing in support of the appeal Mr. Ashoke Sarkar, learned advocate, submitted that section 11 of the West Bengal College Teachers (Security of Service) Act, 1975, empowered the Governing Body of the College to place a teacher under suspension where an enquiry under sub-section (12) of section 9 is contemplated by the Governing Body or such an enquiry is pending. Mr. Sarkar pointed out that section 9(1)(iv) empowered the Governing Body of the College to impose a penalty of suspension on a teacher for good and sufficient reasons. Referring thereafter to Rule 9 of the West Bengal College Teachers (Security of Service) Rules, 1977, framed under section 230 of the 1975 Act, Mr. Sarkar pointed out that if the disciplinary authorities having regard to its findings on the charges is of opinion that any of the penalties as specified under clauses (i) to (iv) of sub-section (2) of section 9 of the Act should be imposed, it would be entitled to pass an appropriate order in the case. However, if the disciplinary authority was of the opinion that any of the penalties specified in clause (v) to (vii) of sub section (1) of section 9 should be imposed, it would have to furnish to the teacher a copy of the report of the Enquiry Officer and the statement of its findings.
14. Mr. Sarkar submitted that only in the case of imposition of a major penalty involving compulsory retirement, removal or dismissal from service, was the disciplinary authority required to furnish to a teacher a copy of the report of the Enquiry Officer to enable him/her to make a representation in terms of rule 9(1)(b) of the Rules.
15. Mr. Sarkar urged that in the case of the writ petitioner/respondent since no major penalty had been imposed and she had been placed under suspension in terms of section 9(1)(iv) of the 1975 Act, the College authorities under Rule 9 were not required to furnish a copy of the report of the enquiry Officer to the teacher concerned to enable him/her to make a representation as contemplated under Rule 9(i)(b) of the Rules.
16. Mr. Sarkar urged that the learned single Judge had erred in construing the penalty of suspension imposed on the writ petitioner/ respondent as being a major penalty, although, the same did not come within the purview of rule 9(1) of the 1977 Rules and this has resulted in the erroneous finding that the writ petitioner/respondent was entitled to a copy of the report of the Enquiry Officer and was also entitled to a second show cause notice. Mr. Sarkar urged that the learned single Judge had passed his judgment on such erroneous findings which have led to a miscarriage of justice.
17. Mr. Sarkar also urged that instead of avoiding the disciplinary proceedings, the writ petitioner/respondent ought to have faced the enquiry in terms of the order passed by the Division Bench on 19th June, 2000 while disposing of the writ petition filed by the writ petitioner, being A.S.T. No. 156 of 2000, and an appeal there from being M.A.T. No. 182 of 2000.
18. Mr. Sarkar submitted that the Governing Body of the College had no personal animosity against the writ petitioner/respondent, but it had no option but to take a decision in the matter since the petitioner/ respondent was not only avoiding the disciplinary enquiry but was also causing administrative problems in the running of the College.
19. Mr. Sarkar submitted that this was not a case where the learned single Judge should have interfered on the wrong premise that the penalty imposed on the writ petitioner/respondent was a major penalty.
20. Reiterating the submissions made on behalf of the writ petitioner/ respondent before the learned single Judge, Mr. Bikash Ranjan Bhattacharya, learned advocate, submitted that the learned single Judge had approached the matter from a correct angle and the views expressed by him did not call for interference.
21. Mr. Bhattacharya submitted that not only had the petitioner/ respondent been denied an opportunity of participating in the disciplinary proceeding in order to defend herself, but the Governing Body of the College had also acted beyond its jurisdiction and authority as provided under the 1975 Act and 1977 Rules in imposing penalty having the characteristics of a major penalty in the guise of a minor penalty. Mr. Bhattacharya submitted that the Governing Body of the College had taken recourse to a penalty involving suspension since the same did not attract the provisions of Rule 9(1)(a) and (b) of the 1977 Rules which required the Governing Body to provide the teacher concerned with a copy of the enquiry report and to give her an opportunity to make a representation in respect thereof in the lines as suggested by the Hon’ble Supreme Court in the case of Managing Director, E.C.I.L.. Hyderabad v. B. Karunakar, AIR 1992 SC 2612. Mr. Bhattacharya submitted that illegality was quite large on the action of the Governing Body of the College which had not only deprived the writ petitioner/respondent of a chance to defend her, but had adversely affected not only her retrial benefits but also her status in society.
22. Mr. Bhattacharya submitted that the learned single Judge had rightly set aside the penalty imposed on the writ petitioner/respondent by the Governing Body of the College out of a desire to deal harshly with the writ petitioner/respondent.
23. Nothing of significance was added either on behalf of the University of Kalyani or the State authorities except for the fact that under sections 12 and 14 of the 1975 Act there was a provision for appeal to the University and also for the formation of an Appellate Tribunal. It was sought to be urged that without such remedy being exhausted the writ petition could not have been filed.
24. From the facts as disclosed during the hearing of the appeal what emerges for decision is whether the learned single Judge was justified in coming to a finding that oven if it be accepted that the disciplinary proceedings had been conducted fairly, the punishment imposed on the writ petitioner/respondent was in the nature of a major penalty in the guise of a minor penalty so as to avoid the provisions of Rule 9(1) (a) & ((b) of the 1977 Rules. Section 9 of the 1975 Act empowers the Governing Body of the College to impose penalty on a teacher for good and sufficient reasons by way of suspension from service. In their wisdom, the law makers thought it fit not to include ‘suspension within the ambit of major penalties enumerated from clauses (v) to (viii) of section 9(1) of the Act which attract the provisions of Rule 9(1)(a) & (b) of the 1977 Rules.
25. It is not only the manner in which the disciplinary proceeding was conducted but also the penalty imposed on the writ petitioner/ respondent which form the subject matter of the writ petition and we are inclined to agree with the learned single Judge that the penalty of suspension up to the date of the writ petitioner/respondent’s retirement cannot be said to a minor penalty as contemplated in section 9(1)(iv) of the Act, but a major penalty almost in the nature of compulsory retirement. The Governing Body of the College was within its rights to suspend the writ petitioner/respondent for the purposes of section 11 of the Act, but in taking action under section 9 for the purpose of imposing penalty, the Governing Body of the College appears to have over-stepped its authority by imposing a penalty whereby the writ petitioner/respondent would be severely compromised and/or prejudice in receiving her retrial benefits. Such consequence would have automatically followed if the College authorities have had taken recourse to any of the punishments enumerated in clauses (v) to (vii) of section 9(1) of the Act but having chosen not to do so, the College authorities in our view, acted without jurisdiction in visiting the writ petitioner/ respondent with the same consequences as would have followed had the College authorities imposed a major penalty so as to attract the provisions of Rules 9(1)(a) & (b) of the Rules.
26. In fact, Mr. Bhattaeharya appears to us to be right in his submission that not only will the writ petitioner/respondent suffer financially but that the penalty of suspension, as imposed, till the date of the writ petitioner’s superannuation, was not really contemplated in section 9(1)(iv) of the Act.
27. The College authorities may be justified in their submission that the writ petitioner/respondent could very well have participated in the disciplinary proceedings instead of avoiding the same on account of technicalities, but the punishment inflicted on the writ petitioner/ respondent cannot be justified under the provisions of Statute and Rules framed thereunder. As observed by the learned single Judge, the suspension contemplated under section 9(1)(iv) was intended to be for a short and specified duration and instead of using such provision judiciously, the Governing Body of the College appears to have used the same for causing the minimum damage to the writ petitioner/respondent at the end of her career, in a manner which we cannot appreciate.
28. Inasmuch as, the quantum of penalty is one of the larger issues involved in the appeal, while maintaining the order of the learned single Judge setting aside the order of punishment as imposed, we modify the same to the extent that the writ petitioner would be entitled to her retrial benefits on the basis of the last pay which she would have drawn had she not been suspended till the date of her superannuation and the penalty imposed by the Governing Body shall be confided to the period of suspension actually undergone by the writ petitioner/respondent No. 1 during the pendency of the disciplinary proceedings.
The appeal is thus disposed of, there will however, be no order as to costs.
It an urgent xerox certified copy of this order is applied for, the same is to be supplied to the applicant expeditiously, subject to compliance with all the required formalities.
A.K. Bisi, J.
29. I agree.