JUDGMENT
S. B. Sinha, J.
1. Both these appeals arise out of a Judgment and order dated 11.4.97 passed by a learned single Judge of this court in C.O No. 10992 (W) of 1990 whereby and whereunder the writ petition filed by Smt. Hiranmayee Bhattacharjee (hereinafter referred to as ‘the respondent’) was allowed tn part.
2. The case has a chequered career. At all material times the respondent herein had been working as Headmistress of Shibrampur Madhyamik High School for Girls ( hereinafter referred to as the said school). The First
Managing Committee of the said school with 9 members was constituted on 1.1.1976 but the tenure thereof was extended till 30th September, 1979. The appointment of the respondent was approved by the West Bengal Board of Secondary Education in the year 1978. For holding election of the Managing Committee of the said school, an election programme was fixed and notice therefor was Issued by four members of the Managing Committee on 30th April, 1974 which Is said to be violative of the election rules.
3. According to the respondent, she sought for advice from the Secretary to the Board and refused to convene the meeting; as a result whereof she incurred displeasure and hostile attitude of the members of the Managing Committee. Allegedly the Managing Committee was illegally reconstituted. A notice to show-cause was Issued by the Secretary of the said Managing Committee upon the respondent on 12.7.1979 directing her to show-cause as to why a disciplinary action shall not be taken to which she filed her reply on 25.7.1979.
4. A resolution was passed recording adverse remarks and restraining her from Joining her duty on 5.8.1979 on the alleged ground that she had violated the direction of the Managing Committee to hand over the documents to the authorities of the school. The respondent contends that at the relevant point of time she was seriously ill and all the documents were in the custody of the previous Secretary. The matter was reported by the Assistant inspector of the Schools to the effect that the action of the Managing Committee was not legal and he advised the Managing Committee to allow the respondent to join her duties. An order of suspension was passed on 12.9.1979 which was sent to the Board for its approval. The same was sent along with the charge-sheet and the resolution of the Managing . Committee dated 12.9.1979. According to the respondent, the said order of suspension was passed in contravention of Rule 28(9} (viia) of the rules for Management for Recognised Non-Government institutions (Aided and Unaided) Rules 1969, (hereinafter referred to as’ the said Rules’).
5. In the mean time an administrator was appointed by the Board. However, the administrator also extended the order of suspension. A charge sheet was issued by the Administrator against the respondent containing a number of charges which was said to be not included in the previous show-cause notice accompanying the charge-sheet whereto replies were filed by the respondent on 17.6.1980. Questioning the validity of order of suspension and the charge-sheet, the respondent filed a writ application on 1.6.81 in the court which was marked as C.O No. 5528(W) of 1981 and the same was disposed of by B.C. Roy, J (as His Lordship then was) by an order dated 29.6.81 directing the Director, Secondary Education to dispose of the respondent’s representation and to hold a fresh enquiry from the stance of suspension.
6. The respondent thereafter was served with another chargesheet dated 10.7.1981 whereto also she replied on 6.8.1981. The Deputy Director, Secondary Education, held enquiry. According to the respondent, she had not been supplied with a copy of the report. The Director, Secondary Education, held that the order of suspension passed by the Managing Committee was justified by a letter dated 21.2.1981. The Board of Secondary Education also approved the charge sheet and the respondent
was served with a notice to show-cause why she should not be removed from the service. She filed another writ application on 19.12.81 which was marked as C. O No. 14618(W) of 1981. The said writ application was disposed of by M. Majumder, J. directing the Managing Committee to proceed from the second stage and it was further directed that the relevant documents relied upon by it before the second stage of the enquiry should be supplied to the respondent. The respondent in the mean time improved her qualification by passing M. A examination in Bengali.
7. On 28.2.1989 a show-cause notice was issued by the Secretary of the school proposing punishment of dismissal from services. On 3.3.89 the respondent prayed for supply of copies of a number of documents in order to enable her to submit the reply. She also prayed for extension of time. But no action thereupon was taken. She again sent a letter on 9.3.89 praying for supply of copies of relevant documents and extension of time to submit reply to the show-cause notice which was, however, denied but she was granted extension of time to submit reply by 15 days from the date of receipt of the letter. According to the respondent, the said letter was received by her on 3.4. 89 and thus, the time was extended till 18th April, 1989.
8. On 8.4.89 the respondent again prayed for supply of copies of the vital documents as well as for extension of time to submit reply which allegedly was received by the Managing Committee on 22.4.1989.
9. On 16.4.89 the Managing Committee adopted a resolution for removing her from service and the said proposal was forwarded to the Board on 18.4.89. On 2.5.89 the Secretary of the Managing Committee by a letter informed the respondent that owing to non-receipt of reply to the charge-sheet and non-intimation regarding inspection of documents and papers, the entire matter has been referred to Board. The Board approved the proposal of the Managing Committee for removal of the respondent. The respondent sent her reply only on 17.5.1989 which was returned with postal endorsement ‘not on duty’.
10. On 28.5.1989 the Managing Committee passed a resolution removing the respondent from service which was confirmed in its meeting dated 21.5-89. The order of removal dated 29.5.89 was issued, an appeal was preferred by the respondent before the Appeal Committee against the said order of removal on 21.6.89. On 21.12.89 the Secretary of West Bengal Board of Secondary Education informed that the appeal had been dismissed. The respondent thereafter filed a writ application.
11. After hearing the learned counsels for the parlies, the learned trial Judge inter alia, held that the respondent was entitled to a copy of the report in view of the decision of the apex court in Union of india v. Mohd. Ramzan Khan . The learned trial Judge also held that the respondent had wrongly been denied opportunity to submit her representation against the show-cause nor was she supplied with the enquiry report. The learned trial Judge further held :
“1 am of the view that the Managing Committee dlliberately avoided the service of the reply to the show cause notice only for the purpose of removing the writ petitioner from service by adopting a resolution immediately thereafter.”
12. As regards the order of the Appeal Committee, the learned trial Judge firstly held that the said order was not in accordance with law as the principles of natural justice had not been complied with and in any event, there has been total non-compliance of the provision of Rule 6 of the Appeal Regulation. It was further held that keeping in view the fact that the respondent was charged with a financial irregularity of Rs. 150/- only, she ought not to have been dismissed from services but having regard to the fact that she had not worked in the school for a long time, it was directed that the respondent should be paid her entire back wages and further would continue to get her wages till her retirement. The learned trial Judge further held that the order of suspension was illegal.
13. Mr. Indrajit Sen, the learned counsel appearing on behalf of the appellant, inter alia, submitted that as the respondent’s services had never been approved as Headmistress after granting recognition as High School in the year 1980, her eligibility to hold the post had not been decided as in the mean time the writ application had also been filed. On merit the learned counsel submitted that the respondent had been given opportunity to inspect the documents but she failed to do the same. As regards the supply of the enquiry report, the learned counsel submitted that as the enquiry had been held by the Deputy Director, the respondent had merely been asked to collect the said report from his office.
14. The learned counsel submits that keeping in view the fact that the services of the respondent had been terminated in accordance with law and the same having been approved by the Board and also in view of the fact that her appeal had been dismissed by the Appeal Committee in terms of the regulation, the learned trial Judge ought not to have granted any relief to the respondent.
15. Mr. Bhaltacharjee, the learned counsel appearing on behalf of the respondent, not only supported the findings but submitted that in view of the aforementioned finding of the learned trial Judge the respondent ought to have been reinstated in service with full back wages.
16. Keeping in view the order proposed to be passed by us, we are of the opinion that it is not necessary for this court to enter deeply into the matter as regards non-compliance of the principles of natural justice. However, we are of the opinion that the findings of the learned trial judge to the effect that there had been violation of principles of natural justice as the respondent was not served with the second show-cause notice, was not correct keeping in view the fact that Md. Romzan Khan’s case (supra) cannot be held to be applicable in the facts and circumstances of this case.
17. The safeguards provided to the teaching staff in terms of Rule 28(8) of the Management Rules, has been explained in Sujit Dos v. The West Bengal Board of Secondary Education & Ors. reported in 1997(2) CLJ 497.
18. In any event, Md. Romzan Khan’s case (supra) became operative prospecttvety i.e. with effect from 20th November, 1990 and as the services of the respondent had been terminated prior thereto, the question of invoking Romzan Khan’s (supra) did not arise.
19. Furthermore, in view of the decision of the apex court in Managing Director. ECIL, Hyderabad v. B. Karunakar , the court has to arrive at a finding that by reason of non supply of the enquiry report any prejudice has been caused to the delinquent employee.
No such finding has been arrived at. Furthermore, in terms of the decision of B. Karunakar (supra) the proceeding as against the employee concerned should start only from that stage and he would be deemed to be under suspension. No such direction has been issued by the learned trial Judge.
20. The learned trial Judge, keeping in view the facts and circumstances of this case, also committed an illegality in holding that there had been a violation of principles of natural Justice in so far as alleged non supply of the documents to the respondent is concerned. The learned trial Judge has not considered the submission made on behalf of the Managing Committee to the effect that respondent deliberately did not inspect the documents despite opportunities having been given to her in that behalf. It is really strange that the respondent failed and /or neglected to send her reply despite several opportunities having been given. In any event, keeping fn view the fact that admittedly the appeal committee has not complied with Regulation 6(3) of the Appeal Regulation, we are of the opinion that the matter should be remitted back to the said Appeal Committee. The Appeal Committee shall consider the matter afresh after giving an opportunity of hearing to both sides and shall arrive at an independent finding without being influenced by any observation made by the learned trial Judge. Although the proceeding is a protracted one, we are of the opinion that keeping in view the fact that the Appeal Committee had not complied with mandatory provision of law and it being a statutory authority is, empowered to consider the entire materials on records and further is in a position to modify the sentence passed by the Managing Committee is terms of Rule 28(viii) of the Rules, (if any occasion arises therefor) in the opinion of this court, the Justice will be sub-served If the matter is heard afresh by the Appeal Committee. We are further of the opinion that instead of adverting to the question in issue by this court, the statutory authority should apply its mind and the validity of impugned order be adjudicated by it. As the Appeal Committee is an independent statutory body. It can adjudicate upon the dispute without any fear or favour to any of the parties to the lis. This aspect of the matter has been considered by the apex court in State of West Bengal & Ors. v. Nuruddin Matltck and Ors. .
21. We may further direct that the interim order passed by this court, in terms whereof the appellant was directed to pay a sum of Rs.10,000/- to the respondent, shall abide by the decision of the Appeal Committee and in the event the appeal preferred by the respondent succeeds, the said amount shall be directed to be adjusted from the arrears which may be found payable by the appellant herein to the respondent.
For the reasons aforementioned these appeals are disposed of with a direction upon the appeal committee to hear out the matter afresh and pass an appropriate order at an early date and preferably within a period of two months from the date of communication of this order. In the facts and circumstances of this case there will be no order as to costs.
S. N. Bhattacharjee, J.
22. I agree.
23. Appeals disposed of