JUDGMENT
Maharaj Sinha, J.
1. This, as far as I have been able togather, is the 5th writ petition in this Court initiated by the writ petitioner herein, Dr. Niranjan Sahu, before this writ petition four more writ petitions were moved by Dr. Sahu and orderes were passed in those writ applications both by the hon’ble single Judge and the Hon’ble Division Bench and at the very outset I must say that those orders can safely be said to have been in favour of the writ petitioner herein, I shall mention briefly what orders were, in fact, made in the past four writ applications by this Court as I proceed to consider the merit or merits of the present writ application.
2. Although the petitioner has essentially challenged an order of prolonged suspension against the petitioner in this writ application but the petitioner has also sought for an order quashing the resolution of of the Managing Committee of Futigoda High School, at Futigoda, in the District of 24-Parganas(South), to proceed against the petitioner with a fresh chargesheet and to place the petitioner under suspension. The petitioner has also challenged an order of the West Bengal Board of Secondary Education, contained in its memo No. 24/916/G, dated 18 September 1998, approving the order and/or above resolution of the Managing Committee dated 3 February 2000 for placing the petitioner under suspension with retrospective effect. The petitioner has also sought for an order for quashing the chargesheet issued against him by the Managing Committee of the said school for initiation of a purported disciplinary proceeding. The petitioner has also sought for a restrained order or rather a prohibitory order against the concerned respondents for bearing them for taking any steps or further steps against the petitioner on the basis of and/or pursuant to the said chargesheet and the said order of suspension against the petitioner.
3. Since the petitioner had to invoke the writ jurisdiction of this Court thrice in the past and since the petitioner had to appear also before the quasi judicial authority under the order of this Court to redress his grievance or grievances and for the protection of his status as the headmaster of the above school and since having succeded in the past three writ applications the petitioner had to yet again invoke the writ jurisdiction of this Court for the 4th time or occasion, a short account of the past and the facts at present on the basis of which the petitioner has invoked the writ jurisdiction of this Court for the 4th occasion need be stated in brief.
4. The petitioner with his master’s degree and bachelor’ s degree in education and Ph.D. from the University of Calcutta was selected for appointment as the headmaster in the said Futigoda High School and as such he was appointed as the headmaster of the said school on 1, September 1993.
5. While serving as the headmaster of the said school, the petitioner was served with a chargesheet by the Managing Committee of the said school. After having chargesheeted the petitioner, the said Managing Committee also placed the petitioner under suspension by an order of suspension dated 25 September 1994.
6. The petitioner, however, challenged the said order of suspension dated 25 September 1994 and the said chargesheet in this Court in its writ jurisdiction by moving a writ petition under Article 226 of the Constitution, C.O. No. 14247(W) of 1994. hereinafter referred to as the first writ petition and an interim order was made by this Court on 7 October, 1994 staying the operation of the said order of suspension and in consequence of the said interim order the petitioner started rendering his service as the headmaster of the said school as directed.
7. The concerned respondents, however, namely the school authority made application for vacating the above interim order dated 7 October 1994 and both the said first writ application and the application for vacating the interim order were disposed of by an order dated 6 December 1994 whereby the said interim order was vacated and the school authority and the Board, namely the West Bengal Board of Secondary Education, the 2nd respondent herein were granted liberty to proceed with the said chargesheet in accordance with law and by virtue of the vacation of the said interim order the said order of suspension again became operative against the petitioner.
8. On or about 6 December 1994 the petitioner preferred an appeal against the said order dated 6 December 1994 disposing of the writ application and allowing the said vacating application, F.M.A.T. No. 3896 of 1994 and on 10 December 1996 the Appal Court by a judgment set aside the said order of suspension against the petitioner dated 24/25 September 1994 and further directed that in the interest of the institution, namely the said school and without prejudice to the rights and contentions of the parties to the said first writ application and the appeal the writ petitioner should not join the school for a period of six weeks from the date of the judgment, namely 10 July 1996 and within the said period of six weeks the respondents concerned were given liberty “to take action and/or steps strictly in accordance with law”. Needless to mention by the said judgment and order of the Appeal Court dated 10 December, 1996 the said order dated 6 December, 1994 of the learned single Judge was set aside.
9. Since, in my opinion, the said judgment and order of the Appeal Court dated 10 December 1996 has an important bearing upon the present writ application I will deal with the order in this judgment a little later.
10. In reality, however, after the said order of the Appeal Court dated 10 July 1996 the petitioner was allowed to join the said school as the headmaster thereof and the Secretary of the said school also handed over the keys and the relevant documents to the petitioner for properly running the administration of the said school.
11. Although the Appeal Court in its said order dated 10 December 1996 directed the petitioner not to join the said school for a period of six weeks even after setting aside the said order of suspension and the said chargesheet and quashing the disciplinary proceeding pursuant to the said chargesheet against the petitioner and further directed the school authority to proceed against the petitioner in accordance with law within the said period of six weeks from the date of the judgment of the Appeal Court dated 10 December, 1996, the school authority, however, failed and/or neglected to take any steps against the petitioner or to initiate any proceeding against the petitioner as per the said mandatory direction of the Apeal Court contained in the said order dated 10 December, 1996 at all.
12. The petitioner, however, joined the said school as the headmaster thereof and has paid his salary month by month regularly upto July 1997. The petitioner also received the statement of his salary for the month of August and September 1997. The concerned District Inspector of Schools (S.E.), South-24 Parganas, did not pay the petitioner his salary in arrears to which he claimed to be entitled to and eventually the petitioner invoked the writ jurisdiction for the second time alleging that the petitioner was not paid his salary in arrears though he was entitled to be paid by the concerned respondents, namely, the District Inspector of Schools concerned and the appointed Administrator of the school in question.
13. In the second writ petition of the writ petitioner, Writ Petition No. 2531(W) of 1997, this Court passed an interim, order on 27 January 1998 directing the authority or authorities concerned to pay half of the salary of the petitioner in arrears within a week from the date of that order without prejudice to the rights and contentions of the parties to the said second writ petition.
14. It appears that the petitioner moved yet another writ application for the third time challenging the alleged inaction on the part of the authority concerned in paying the petitioner the full salary etc., the particulars of the said writ petition as appear from paragraph 16 of the writ petition at page 19 thereof is Writ Petition No. 19444 (W) of 1998. In the said writ petition an order was passed by the Hon’ble single Judge on 29 February 2000 whereby the concerned authority was directed to pay the petitioner the subsistence allowence month by month during the pendency of the writ petition without prejudice to the rights and contentions of the parties thereto.
15. It further appears from paragraph 16 of the writ petition at page 19 and 20 thereof that an appeal was preferred (M.A.T. No. 977 of 2000} against the said order of the learned single Judge dated 29th February, 2000 but the Appeal Court did not interfere with the said order but directed that it would be open for the learned single Judge to pass appropriate order on the merits of the case. The said writ application, thereafter, according to the writ petitioner herein spent its force and became infructuous due to subsequent facts and change of circumstances. The copies of the said orders, however, have neither been produced nor annexed to the writ petition or to the Affidavit-in-Reply or to the Affidavit-in-Opposition (see page 20 of the writ petition). I have not still, however been able to ascertain from the facts and the records of this proceeding as to why the said third application had to be moved by the writ petitioner in the first place. The material particulars, in my opinion, are absolutely lacking in the writ petition in this regard.
16. It appears that the then administrator of the said school issued a show-cause notice against the petitioner dated 29 January 1999 on the basis of a purported resolution adopted by the Managing Committee of the said school which committee the petitioner alleges to have been defunct as the time of the said Managing Committee expired at the time when the said purported resolution was adopted by the said alleged Managing Committee on the basis of which the said alleged show-cause notice dated 29 January 1999 was issued against the petitioner.
17. The petitioner, however, replied to the said show-cause notice denying the allegations made against him in the said show-cause notice. The said reply was given by the petitioner on 11 February 1999, as appears from the list of dates filed in support of the writ application by the learned Advocate Mr. Arun Kr. Maity on behalf of the petitioner.
18. At this stage I am tempted to mention that the allegations made particularly in paragraphs 12, 13, 13A, 14, 15. 16. 17, 18 and 19 of the present writ petition are wholly unintelligible and inconsistant and lack in material particulars.
19. The petitioner, in my opinion, ought to have given the full facts together with all the orders passed in the past proceedings in a consistent and cronological manner which the petitioner or rather his learned Advocate or Advocates have miserably failed to do in this writ application. At the request of this Court a list of dates was prepared and filed and the said list of dates according to me is equally inconsistent, unintelligible and to some extent meaningless as the said list of dates merely followed the allegations mentioned in the instant writ petition. This, in my opinion, is a serious lapse on the part of the writ petitioner or rather his learned Advocates who have conducted this proceedings on his behalf. It also shows the lack of seriousness with which this matter has been dealt with by the petitioner’s learned Advocates.
20. However, since the writ petitioner has come before this Court with a writ petition and affidavits have been exchanged and filed and since a final adjudication of the merits of the writ petition is required to be made by this Court I proceed to deal with the case as far as I can even at the cost of ignoring the above inconsistencies and lack of particulars as I am convinced that no useful purpose will be served by asking the writ petitioner or rather his learned Advocates to assist this Court properly by giving this Court the full facts cronologically including the past history of the litigations once again.
21. Thus, I have decided to consider the merits of this writ application on the basis of the available materials on record and the pleadings of the parties and the written submissions prepared by the learned senior counsel on behalf of the writ petitioner herein.
22. It appears that on 12 February 2001 the petitioner received a copy of a purported letter/memo., 24/4516/9/3 dated 31 January 2001, addressed by the Secretary, West Bengal Board of Secondary Education to the then administrator of the said school approving the alleged proposal to dismiss the petitioner from service as the headmaster of the said school. From the said letter/memo, the petitioner came to know for the first time that an alleged disciplinary proceeding was held against the petitioner and a proposal to dismiss the writ petitioner was made by the Managing Committee of the said school on the basis of the said alleged disciplinary proceeding and thereafter the said approval of the alleged proposal was made by the committee constituted under Section 24 of the West Bengal Board of Secondary Education Act 1962. The petitioner, however, it is alleged, was kept completely in the dark about the said alleged disciplinary proceeding against him throughout. The said letter/memo dated 31 January 2001 is annexure – p/2 to the writ application appearing at page 62 thereof.
23. The petitioner had to challenge the said memo dated 31 January 2001 which contained the approval of the proposal of the school authority to dismiss the petitioner from service by invoking the writ jurisdiction of this Court once again, W. P. No. 809(W) of 2001, for the fourth time. The said 4th writ application was, however, disposed of by Justice Amitava Lala on 9 October. 2001. For the sake of convenience and proper understanding the portion of the order which contains inter alia the direction passed in the above writ application by the Court is set out below:-
In any event, since all the orders merged with the order already passed by the Board now I have to proceed with the order impugned by holding that there is an Appeal Committee under the Regulation 9 of the Appeal Regulations of the West Bengal Board of Secondary Education. Therefore, such Appeal Committee is to be formed immediately upon being communication of this order who in turn shall serve notice upon all the parties including the petitioner for holding de novo hearing in respect of all the points as agitated by the petitioner hereinabove and recorded under order and pass a reasoned order thereof on all the points as specified above within a period of one month from the date of notice for holding the meeting.
24. The remaining portion and the direction contained in the said order dated 9 October 2001 is not set out in detail herein, suffice it to say that the Appeal Committee was also asked to decide whether the alleged order of suspension against the writ petitioner was issued by a defunct Managing Committee of the school in question. The Appeal Commitee was to decide the said point very carefully before coming to its conclusion on that point “since it is a question of bread and butter” and “livelihood” of the writ petitioner, remarked the Hon’ble single Judge.
25. The Appeal Committee was also to decide whether the writ petitioner received the subsistence allowance pursuant to the alleged order of suspension against him and his monthly salary in arrears before his dismissal from service, pursuant to the said proposal of dismissal of the petitioner from service by the school authority. The Appeal Committee was also to ensure that if the Appeal Committee found that the above payments were not made, then the Appeal Committee was to direct the school authority and the concerned District Inspector of Schools to make the payment or payments to the petitioner within a particular time mentioned in the said order.
26. The above is the direction or directions of His Lordship Justice Amitava Lala which I have, to the best of my ability, been able to make out from the operative portion of the said order dated 9 October 2001. The above order is, however, annexure-p/3 to the writ application appearing at page 63 thereof. (The material portion of the direction of the said order as quoted and as mentioned above appears at pages 65 and 66 of the writ application.)
27. Pursuant to the said order of Justice Amitava Lala dated 9 October 2001, the Appeal Committee considered the matter, namely the appeal of the petitioner and the case of the respondent, namely the school authority in question and took its decision in its meeting held on 5 December 2001. The decision of the Appeal Committee dated 5 December 2001 was communicated to the Secretary of the said Futigoda High School by the Secretary, West Bengal Board of Secondary Education, by his letter dated 18 January 2002. The said letter containing the decision of the Appeal Committee is annexure -p/4 to the writ application appearing at page 68 thereof.
28. It appears from the decision of the Appeal Committee that Appeal Committee considered mainly two things. Firstly, whether the alleged order of dismissal dated 25 March 2001 against the petitioner was in accordance with the provisions contained in rule 28 or rather sub-rule (8) of rule 28 of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules 1969 and secondly, whether the Managing Committee of the school became defunct and its life expired on 31 December 1995 as contended by the petitioner or it was a valid Managing Committee at the time when it issued the alleged order of suspension against the petitioner.
29. The Appeal Committee, it appears, after having considered the facts of the case came to the finding that the school authority in proceeding against the petitioner by its alleged disciplinary proceedings did not comply with the mandatory provisions of sub-rule (8) of the said rule 28 of the said 1969 Rules as the petitioner was never communicated the alleged charges made against him by the school authority and consequently the writ petitioner had no occasion or opportunity to meet the alleged charges against him. The petitioner could not defend himself or rather did not have any opportunity of defending himself as provided under the said sub-rule (8) of rule 28 of the said 1969 Rules. Having found that there had been non-compliance of the mandatory provisions of the said sub-rule (8) of rule 28 of the said 1969 Rules, the Appeal Committee was of the opinion that the proposal of the school authority for dismissal could not and was not validly approved by the Board as the writ petitioner was never communicated the alleged charges against him in terms of the sub-rule (8) of rule 28 of the said 1969 Rules and the alleged disciplinary proceeding was held in complete breach of the relevant provisions of the said Rules of 1969.
30. The Appeal Committee, however, found that the Managing Committee of the said school was valid till 31 July 1997 as the same got its extension of life by the Board after its expiry of life on 13 December 1995. Even though the order of dismissal against the writ petitioner was set aside by the Appeal Committee, considering the gravity of the allegations against the petitioner, it thought that the Managing Committee of the said school should be given liberty to proceed against the writ petitioner afresh “in accordance with law and in strict observation of rules and procedures including the principles of natural justice”.
31. I cannot help wondering at this stage as to how many times and on how many occasions the Managing Committee of the said school or the authority of the said school was to be permitted by the highest judicial and quasi judicial authority of the State to proceed against the petitioner by holding disciplinary proceedings against him and or how many occasions the management of the said school was to be reminded that they should proceed to hold the disciplinary proceedings against the petitioner strictly in accordance with law. However, I shall deal with the order of the Appeal Commitee a little later, if necessary.
32. After the said order of dismissal was set aside by the Appeal Committee, the writ petitioner, thereafter, wanted to join the school as the headmaster thereof as the order of dismissal was set aside by the appeal committee but from the allegations made in the petition, it appears, that the writ petitioner was wrongfully and illegally prevented by the Managing Committee to discharge his duties as the headmaster of the said school and against such wrongful refusal the petitioner also made complaints to the police authority.
33. The petitioner also has made serious allegations in this writ petition that he apprehended unlawful personal violance against him from the management of the school as the petitioner was manhandled by the Secretary and some members of the Managing Committee of the said school and their associates even in the presence of police authority but he was somehow rescued by the guardians of the students of the said school.
34. It should, however, be mentioned herein that since the Appeal Committee, though directed by the said order of this Court dated 9 October 2001 did not consider as to whether the petitioner was paid the subsistence allowance and/or the salary according to his entitlement the petitioner moved a contempt application and pursuant to an order passed in the said contempt application the petitioner was paid a sum of Rs. 75.000/- as subsistence allowance, The above facts appear from paragraphs 35 and 36 of the writ petition at page 30 thereof.
35. The two respondents in the said contempt application namely the 3rd and the 4th respondents, the alleged contemners, therein, the Secretary and an assistant teacher of the said school, used an affidavit-in-opposition annexing a purported letter dated 8 February, 2002 of the Secretary of the said school addressed to the petitioner wherefrom the petitioner came to know for the first time that since the Appeal Committee set aside the said order of dismissal of Niranjan Sahu dated 25 April 2001 and since the Appeal Committee granted the school authority the liberty to proceed by initiating disciplinary proceeding against him afresh, the Managing Committee of the said school by its resolution dated 3 February 2002 decided to proceed against the petitioner once again with fresh chargesheet considering the gravity of the allegations against the writ petitioner.
36. The writ petitioner also came to know that he would remain under suspension as the alleged “order or suspension was approved by the Board by its order of approval dated 18 September 1998 “under memo No. 24/9161/G.”
37. The said letter dated 8 February 2002 addressed to the petitioner by the Secretary of the said school is under challenge in this writ application as from the said letter the petitioner came to know for the first time that he has kept under suspension upon giving an alleged approval of suspension of the Board dated 18 September 1998 a retrospective effect and as the said letter contains the alleged charges agianst the petitioner with which the school authority intended and/ or intend to proceed by initiating disciplinary proceeding against him afresh. The said impugned letter dated 8 February 2002 is annexure-P/9 to the writ application appearing at page 106 thereof.
38. As aforesaid, the petitioner has sought for quashing of the said alleged order of suspension which was given a retrospective effect, as aforesaid, and as mentioned in the said impugned letter dated 8 February 2002 of the Secretary of the said school and the quashing of the alleged charges with which the school authority or the Managing Committee of the said school intended and/or intends to proceed against the petitioner afresh in accordance with the so-called liberty given by the Appeal Committee in its said decision dated 5 December 2001 as communicated to the petitioner by the said letter of the Secretary of the West Bengal Board of Secondary Education dated 18 January 2002.
39. The case of the petitioner is that the alleged charges as contained in the said letter dated 8 February 2002 were not communicated to the petitioner at any point of time and the petitioner came to know of the alleged charges from the said letter for the first time when a copy of the said letter was annexed to the said affidavit-in-opposition used in opposition to the said contempt application moved by the petitioner for violation of the order of Justice Amitava Lala dated October, 2001 as mentioned above.
40. According to the petitioner the alleged charges as contained in the said letter dated 8 February 2002 are nothing but the repetitions of the charges or rather the alleged charges made against him by the management of the said school earlier which were considered and dealt with by the Hon’ble Appeal Court of this Court in it’s judgment dated 10 December 1996 and the alleged charges mentioned in the said order of the Appeal Committee dated 5 December 2001, i.e. annexures – P/1 and P/4 to the writ application respectively.
41. I have set out in a little detail the past history of this case including the facts which are relevant for the purpose of deciding whether the petitioner is entitled to the relief or reliefs as sought for by him in this writ application. After having set out the acts, I think it can be mentioned at the cost of repitition once again that on each occasion the petitioner invoked the writ jurisdiction of this Court, the order was passed on each occasion in favour of the writ petitioner and on each occasion this Court and also the quasi judicial authority, namely the “Appeal Committee” found some substantial wrong and/or illegality on the part of the management or the Managing Committee of the school in questicn both in initiating and in concluding the alleged disciplinary proceeding or proceedings aqainst the writ petitioner and also in issuing the alleged order of termination or. dismissal of the petitioner from service and, needless to mention, in continuing the order of suspension and initiating the disciplinary proceedings by framing the alleged charges against him.
42. Lastly, by its so-called resolution dated 3 February 2002 as mentioned in the impugned letter of the Secretary dated 8 February 2002, the order of suspension which was made on 25 September 1994 has been attempted to be given a retrospective effect on the alleged plea that the said order of suspension was approved by the Board by its alleged order dated 18 September 1998. Is the Managing Committee of the school or the school authority competent to proceed against the petitioner by giving the alleged order of suspension a retrospective effect when the said approved order of dismissal was set aside by the highest quasi judicial body namely the Appeal Committee and more importantly when the order of suspension was set aside earlier by the said order of the Division Bench of this Court dated 10 December 1996, on the alleged pleas or grounds as mentioned in the said impugned letter of the Secretary of the said school dated 8 February 2002?
43. Secondly, whether the management of the school authority should be allowed to proceed in the manner as it has attempted and purported to do once again to hold the disciplinary proceeding against the petitioner on some alleged charges which are practically identical to the alleged charges made against the petitioner way back in the year 1994, to be precise the alleged charges as mentioned in the resolution of the Managing Committee of the said school dated 20 August 1994, which charges were found to be absolutely vague and devoid of material particulars and when the disciplinary proceeding initiated against the petitioner on the basis of the said alleged charges was eventually set aside by the order of the Division Bench of this Court dated 10 December 1996. These are, in my opinion, the most important issues to be considered, dealt with and answered in this judgment.
44. In my opinion, in this case the judgment of the Division Bench dated 10 December 1996 holds the most important field. After having considered the facts and the circumstances of the case the Appeal Court found that the disciplinary proceeding against the petitioner was initiated and continued without complying with the mandatory requirements of the provisions of rule 28(8) of the rules for Management of Recognised Non-Government Institutions (Aided and Unaided Rules 1969, (referred to as the said rules hereinafter).
45. It was also found by the Appeal Court that the Managing Committee could not proceed with the enquiry unless the matters were approved initially by the Board after initiation of the disciplianry proceeding. The Court also found that no inquiry was held, no proper chargesheet was issued, the allegations were not set out giving particulars and details of the allega-tions on the basis of which charges were framed which were given to the petitioner.
46. On the contrary, the Court found that the charges that were framed against the petitioner were in the form of questionnaire, it was not possible for anybody let alone the petitioner to understand the nature and extent of the charges which he had to meet and which he had to reply, the Court observed “that the chargesheet must contend all allegations and statement of allegations and the same should not be vague and/or criptic.”
47. The Court further found that there was no valid and proper chargesheet on the basis of which the departmental proceedings could be proceeded with against the petitioner, principles of natural justice were not observed and the mandatory provisions of rule 28(8) were not complied with. First chargesheet was abandoned and the second chargesheet was again given keeping the order of suspension alive in contravention of the provisions of rule 28(9) (VIIa) of the said 1969 Rules.
48. Appeal Court found that a peculiar procedure was adopted by the management “which has, on the fact of it, resulted in substantial failure of justice apart from denying the petitioner the reasonable opportunity of being heard,” this according, to the Appeal Court had happened because of the fact that the Managing Committee or the members thereof were not aware of their duties and obligations in that regard.
49. The Appeal Court also found that the order of suspension had not been forwarded to the Board within seven days for its approval. The most peculiar part of the case as was found by the Appeal Court was that the first chargesheet in the form of questionnaire was submitted (numbering about 22 questions). But subsequently those charges were abandoned by the Managing Committee and four more charges in the form of questionnaire were again served upon the writ petitioner during the pendency of appeal before the Division Bench and this was done after the writ application was disposed of by the Hon’ble single Judge.
50. From a plain reading of the said judgment it appears that the Appeal Court in dealing with the case of the writ petitioner found fault at every stage with the Managing Committee of the said school and the Appeal Court unhesitatingly said in clear terms that the Managing Committee proceeded or attempted to proceed against the writ petitioner in utter breach of the provisions of sub-rule (8) of rule 28 of the said Management Rules of 1969 and also in breach of the provisions of clause (VIIa) of sub-rule(9) of rule 28 of the said Rules in issuing and/ or keeping the writ petitioner under suspension.
51. The Appeal Court in the end set aside the disciplinary proceedings as well as the order of suspension against the petitioner. Although both the disciplinary proceedings as well as the order of suspension were set aside but keeping in view the allegations and the counter-allegations of the parties the Appeal Court was of the view that in the interest of the institution, namely the said school, the Managing Committee should be given leave to proceed afresh but in that event the Managing Committee was to issue a valid and proper charge-sheet in a manner which was not wanting in material particulars or vague along with the statement of allegations and after observing principles of natural justice as indicated in the judgment. Thus, the opportunity was given to the Managing Committee of the said school or the authority of the said school to proceed against the petitioner after strictly observing the statutory rules contained in rule 28(8) of the said 1969 Rules.
52. The most important operative part of the said judgment and order was and is that though the said order of suspension dated 25 September 1994 against the petitioner was set aside but in the interest of the institution, namely the school and without prejudice to the rights and contentions of the parties the appellant was not to join the school for a period of six weeks from the date of the judgment and within the said period of six weeks the respondents, namely the management of the school or the school authority was given liberty to take action and/or steps strictly in accordance with law.
53. The above operative portion of the said judgment and/or order, in my opinion, was and is of immense importance as a time limit was set by the Appeal Court within which the concerned respondents, namely the authority of the said school or the Managing Committee thereof was given liberty to proceed against the writ petitioner afresh though the Appeal Court set aside the order of suspension and the disciplinary proceedings and/or the alleged charges as framed against the petitioner continue the disciplinary proceedings against him.
54. The learned senior counsel Mr. Kashi Kanta Moitra appearing in support of the writ application had repeatedly drawn my attention to the past facts of this case or rather the history of the past litigations and the facts of the present case and put his emphasis on the judgment of the Appeal Court dated 10 December 1996 and he submitted and in my view quite correctly and rightly that though the Appeal Court directed the authority or the management of the school concerned to take action against the petitioner within a period of six weeks from the date of the judgment, namely 10 December 1996 and accordingly directed the petitioner not to join the school even though the order of suspension against the petitioner was set aside and the disciplinary proceeding against him quashed, the authority or the management of the said school did nothing within a period of six weeks or even thereafter, on the contrary, the petitioner was allowed to resume his duties as the headmaster and paid his salary by the school authority.
55. The natural consequence of the said breach of the said order of the Appeal Court was and is that the Managing Committee of the said school could not proceed against the writ petitioner after the expiry of six weeks on the self same or identical charges as were the subject matter of the said first writ application and the subject matter of the said appeal in which the said judgment dated 10 December 1996 was rendered by the Appeal Court.
56. I, on my part, have not been able to ascertain either, after having considered the entire facts and the circumstances of the case including the past history thereof as to why the authority concerned did not proceed against the petitioner within the time stipulated by the Appeal Court in its said order dated 10 December 1996 in the first place. In stead of proceeding against the writ petitioner in terms of the said order of the Appeal Court dated 10 December 1996, the petitioner, it appears, was allowed to join the said school and he was paid salary till the month of July 1997. By not proceeding against the petitioner in terms of the said order of the Appeal Court the authority or the Managing Committee of the said school was, and is, in my opinion, estopped thereafter from proceeding on the self same or almost identical charges against the petitioner which were the subject matter of the first writ proceeding initiated by the petitioner which was finally disposed of by the said order of the Appeal Court dated 10 December 1996.
57. Mr. Moitra, learned senior counsel rightly contended that the Managing Committee of the said school instead of proceeding against the writ petitioner within the said time as granted by the Appeal Court in its said order dated 10 December 1996 issued a charge-sheet against the petitioner on 26 July 1997 in breach of the said order of the Appeal Court and without obtaining any leave from the Court of law and attempted to proceed against the petitioner on practically the identical or similar charges as were the subject matter of the first disciplinary proceeding in the identical or the similar manner as before.
58. However, instead of proceeding with the said second charge-sheet dated 26 July 1997 a third charge-sheet was issued on 29 January 1999 on the basis of an alleged resolution of the Managing Committee of the said school which according to the petitioner became an invalid body as by then its lifespan expired much earlier without there being any valid extension thereof by the competent authority.
59. The third charge-sheet, however, as aforesaid, culminated in the approval of the proposal for dismissal of the petitioner from service. The approval, needless to mention, was made by the Board as mentioned hereinabove in detail and on that basis the order of dismissal dated 25 March 2001, was passed by the Managing Committee of the said school. The petitioner moved a writ petition which was disposed of by this Court, by its order and pursuant to that order the Appeal Committee, as aforesaid, considered the appeal of the peitioner and disposed of the appeal by setting aside the said order of dismissal once again holding that the alleged disciplinary proceeding was held against the petitioner in utter breach of the mandatory provisions of sub-rule (8) of rule 28 of the said Management Rules of 1969 once again.
60. The Appeal Committee, however, as aforesaid, allowed the management of the school to proceed against the writ petitioner afresh if it wanted to considering the gravity of alleged charges as were highlighted before the Appeal Committee by the school authority.
61. There is no doubt however, that the order of suspension was set aside by the Appeal Court by its judgment and order dated 10 December 1996, that is the only order of suspension which had and has been made against the petitioner and after setting aside the said order of suspension, the said order of suppension could never revive and there was no fresh order of suspension either. The allegation that the said order of suspension was allegedly approved by the Board by its alleged order dated 18 September 1998 does not and cannot therefore hold good under any provisions of statutory or even common law in the first place. An order of suspension which is set aside by a competent Court in this case the Division Bench of this Court, cannot by any stretch of imagination again revive or cannot by any stretch of imagination be approved thereafter by any authority, be it administrative or quasi judicial authority, under any provision of law.
62. By attempting to keep the writ petitioner under suspension once again by quoting the said alleged approval of the Board of the order of suspension, if there was any, as mentioned in the said impugned letter dated 8 February 2002 of the Secretary of the said school addressed to the writ petitioner herein, the order of suspension could or can neither be revived nor be given any retrospective effect or rather any effect at all.
63. At this stage I am to observe, having considered the entire facts and the circumstances of the case and the allegations made in the impugned letter of the Secretary of the said school dated 8 February 2002 that is under challenge in this writ application, that the management or the authority of the said school in this case had and has throughout abused its power and abused its power absolutely as conferred upon it under the statute and/or the statutory rules framed in this regard or even otherwise.
64. Time and again, the orders of the Managing Committee were set aside both by the highest judicial authority of the state namely the Appeal Court of this Court and also the quasi judicial authority on the ground that the management of the said school in conducting the case against the petitioner had violated the mandatory provisions of the rules, namely sub-rule (8) of rule 28 and clause (VIIa) of sub-rule (9) of rule 28, in my opinion, with impunity, and yet the Managing Committee in utter abuse of the power conferred upon it sought to revive an order of suspension against the petitioner without any authority of law, without any jurisdiction and in an absolute arbitrary and abusing manner.
65. The order of suspension against the petitioner should therefore be set aside and the petitioner shall be deemed not to have been suspended since the said order of suspension dated 25 September 1994 of the school authority was set aside by the Division Bench by its said prder dated 10 December 1996 and since there had and has not been any valid order of suspension against the petition at any point thereafter.
66. While on the subject it should also be mentioned that once the Appeal Committee set aside the order of dismissal against the petitioner dated 25 March 2001 by its said order dated 5 December 2001 as communicated by the Secretary of the West Bengal Board of Secondary Education in his said letter dated 18 January 2002 (Annexure – P/4 to the writ application), no order of suspension, even assuming there had been such an order, could survive as the order of suspension was merged with the said order of dismissal and since the said order of dismissal was set aside the alleged order of suspension and/or the approval thereof, even if there had been any, also thus perished.
67. But in the instant case such a question cannot and/or does not arise as no valid order of suspension has been made against the petitioner on the day when the Managing Committee of the said school allegedly decided to proceed against the petitioner afresh by framing or rather by repeating the alleged charges as contained in the said impugned letter dated 8 February 2002 or at any time thereafter.
68. From a bare reading of the allegations or the alleged charges against the petitioner as contained in the said impugned letter dated 8 February 2002 of the Secretary of the said school addressed to the writ petitioner herein, it appears that the Managing Committee of the school or the authority thereof had nothing better to offer since the issuance of the said first charge-sheet against the petitioner which was the subject matter of the first writ petition which in it’s turn culminated in the said final order of the Appeal Court dated 10 December 1996.
69. The Appeal Court, as aforesaid, and I have repeated more than once, had set aside the disciplinary proceedings having found that the so-called charges against the petitioner were extremely vague and/or devoid of material particulars and the said changes were nothing but in the form of questionnaire etc. The alleged charges as contained in the said impugned letter dated 8 February 2002 are, in my view, nothing but mere repititions of the earlier charges which are equally vague and devoid of particulars as before.
70. In other words, though the language in framing the charges might slightly have been changed this time but nevertheless it is those charges or allegations which were made against the petitioner in the year 1993-94 have in essence been repeated by the school authority once again. At least the school authority this time has attempted to put the “old wine in a new bottle”. This Court is definitely not concerned with the correctness or the truthfulness of the allegations made against the petitioner but at the same time after having considered the facts and circumstances of the case it is clear that by now the school authority or the Managing Committee thereof could have proceeded against the writ petitioner in the prescribed manner as provided in the statutory rules, namely under sub-rule (8) of rule 28 of the said 1969 Rules as directed by the Appeal Court by its judgment and order dated 10 December 1996 but they repeatedly, deliberately and intentionally failed and neglected to proceed in accordance with the mandatory provisions of law as had and has been established more than once before the highest judicial authority of the State and also before the quasi judicial authority. The manner in which the Managing Committee had and has attempted to proceed on this occasion against the petitioner that can be gathered from the contents of the impugned letter dated 8 February 2002 of the Secretary of the said school addressed to the writ petitioner herein, is also, in my opinion, not in accordance with the mandatory provisions of sub-rule (8) of Rule 28 of the said 1969 Rules. This time again the Managing Committee or the authority of the school, in my opinion, has abused its power conferred upon it under the said provisions of the said Rules of 1969.
71. Having considered the conduct of the Managing Committee or the school authority of the said school I am of the opinion that they are either wholly incompetent to proceed in accordance with the power conferred upon them under the statute and/or the rules framed there under or they have been and are actuated by sheer malice in proceeding against the petitioner. The Managing Committee or the authority of the said school should not, in any event, in my opinion, be allowed to abuse the powers conferred upon it by statutory provisions of law and/ or the rules framed thereunder, namely the said 1969 Rules. Last but not the least, since the Managing Committee of the said school attempted to proceed in a clear violation of the said order of the Division Bench dated 10 December 1996 (as it did not proceed against the petitioner within the time stipulated and in the manner prescribed by the Appeal Court), the subsequent acts and/or actions of the Managing Committee of the said school cannot be validated or cannot be given the legal sanction without any legal justification therefor and I have no doubt in my mind that there has not been any and is no legal justification for the acts and/or the actions of the management or the authority of the said school in attempting to initiate disciplinary proceedings against the writ petitioner one after the other, in dismissing the writ petitioner from service in the past and in issuing the order of suspension and in attempting to continue the alleged order of suspension by giving the same the alleged retrospective effect (as mentioned in detail hereinabove) after the said judgment and order of the Appeal Court dated 10 December 1996.
72. The learned counsel Mr. Moitra also relied on a certain decisions, in support of his contentions, the said decisions are mentioned below:-
1) Om Prakash Gupta v. State of Uttar Pradesh.
2) Naresh Chandra Gangopadhayay v. Director of Fishery, Government of West Bengal
3) Surat Chandra v. State of West Bengal reported in 1971 SC 752
4) Sujit Das v. West Bengal Board of Secondary Education reported in 1997 (2) CLJ 497
5) Dr. Niranjan Sahu v. State of West Bengal reported in 1997(1) CWN 315
6) Babban Stnghv. Union of India and Ors., reported in 1993(2) Calcutta Law Times 128
7) Subol Chandra Holder v. State of West Bengal, reported in 2003( 1) WBLR Calcutta 364
73. However, the view that I have taken in this judgment I do not think an elaborate discussion on the above decisions is necessary. Suffice it to say that the above decisions, in fact, support the contentions of the learned senior counsel Mr. Moitra as made by him on behalf of the writ petitioner.
74. Although, an Affidavit-in-Opposition was used by the sixth and the eighth respondents herein but I have not been able to make out what case they had and/or have tried to make out in their defence by using the said affidavit to oppose the writ application. I have discussed hereinabove as to why I have taken the view that I have taken in the judgment, I do not intend to repeat them once again. The affidavit-in-Opposition does not, in my opinion, contain any defence or far from any specific defence or any justification reasonable or otherwise which can be taken or used in support of the conducts of the Managing Committee or the authority of the said school in any manner whatsoever. The learned senior counsel engaged on behalf of the above respondents had made a very brief appearance only once but thereafter none in fact appeared on behalf of the above respondents or on behalf of the school authority though matter was heard on many occasions.
75. The said impugned letter dated 8 February 2002 and the contents therein are thus set aside. As a natural consequence of setting aside of the said impugned letter dated 8 February 2002 the petitioner is not be treated under any order of suspension at all and the petitioner is entitled to join the said school as the Head master thereof by the management or the authority of the said school is directed to allow the petitioner to join and resume his duties as the head master thereof forthwith. The petitioner shall also be paid his salary in arrears in accordance with law after adjustment of the subsistence allowance which he has received so far and he shall be given all other benefits to which he has been and is entitled as the Head Teacher or Head Master of the said school.
76. Since the management or the authority of the said school has repeatedly proceeded in utter breach of mandatory provisions of the statutory rules of 1969 and above all in clear violation of the order of the highest judicial authority of the State, i.e., the said order of the Division Bench of this Court dated 10 December 1996, in initiating the disciplinary proceedings and/or in issuing the charge-sheets against the petitioner one after the other and for keeping the petitioner under illegal suspension throughout, the authority concerned is permanently restrained from initiating any further disciplinary proceeding or passing any order of suspension against the petitioner on the alleged charges against him which are mentioned in the said impugned letter dated 8 February 2002, which are nothing, but mere repititions of the alleged charges against him since 25 September 1994.
Thus, the writ application is disposed of in terms of the above order.
There will be no order as to costs.
Urgent xerox certified copy of this judgment, if applied for, be given expeditiously.