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Moumita Goswami Nee Banerjee vs The State Of West Bengal & Ors on 17 June, 2019

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IN THE HIGH COURT AT CALCUTTA
17-06-2019 Constitutional Writ Jurisdiction
Appellate Side
Subrata

W.P.No.6862(W) of 2018
Moumita Goswami nee SectionBanerjee
-vs-
The State of West Bengal Ors.

Mr. Atarup Banerjee
Mr. Priyankar Ganguly …for the petitioner

Mr. Supriya Chattopadhyay
Ms. Iti Dutta …for the State

Mr. Mridul Kanti Sasmal …for respondent no.7

The prayer of the writ petitioner is for a prohibition
on the respondent no.7 from attending the school where
he is serving as an assistant teacher. The petitioner is
the wife of the respondent no.7; and from records it
appears that the petitioner lodged an FIR on January 7,
2018 under Sectionsections 498A, Section307 and Section34 of the Indian
Penal Code against her husband for alleged offence which
occurred on August 24, 2017.

Learned counsel appearing for the petitioner relies
on a Memorandum dated January 19, 2007 pertaining to
the West Bengal Board of Secondary Education and Rule
28(8b) of the Management Rule – “Powers of Committee.”
The said Rule provides, inter alia, that in the case of a
teaching or a non-teaching staff of an institution is
detained in custody for a period exceeding 48 hours, on a
criminal charge or otherwise, such staff shall be deemed
to have been suspended by an order of the appointing
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authority, with effect from the date of detention and shall
remain under suspension until further orders.

Counsel further submits that since the petitioner
has been detained for a period of ten days, he should
automatically be suspended by the managing committee
of the said school and not be allowed to continue to serve
as an assistant teacher.

Learned counsel appearing for the State relies on
Rule 28(viia) of the Management Rules which has been
brought in later to the Management Rules and which
provides, inter alia, that suspension of a teacher or an
employee should be made where it is in the interest of the
institution, pending drawal of proceedings against the
person concerned, within ninety days from the date of
suspension; and that during the period of suspension, the
person concerned shall be paid his pay and allowances
etc. to the extent of the amount indicated under the said
Rule.

Counsel also relies on a decision of a learned
single Judge of this court in the case of SectionBasudev Malik v.
State of West Bengal Ors. reported in 2004(1) CHN 32
wherein the learned Judge found that the Managing
Committee of a school has a right to suspend a teacher or
an employee where such suspension is in the interest of
the institution pending drawal of proceedings against the
person concerned within 90 days from the date of
suspension; and further that as long as the criminal
proceedings are not concluded and the petitioner is not
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found guilty, there is no scope for initiating any
disciplinary proceeding at the instance of the school. The
learned Judge held that the school authority had no right
to suspend the petitioner in that matter merely because a
criminal case has been initiated against the petitioner. In
the decision relied upon, it was also held that the moment
the teacher is released from detention, the deemed
suspension will come to an end; and that the petitioner
should be permitted to join his duty subject to the final
decision in the criminal case.

Having heard learned counsel appearing for the
parties, this court finds substance in the submission of
the learned counsel for the State that the suspension has
to be in the interest of the school. The decision relied
upon is squarely applicable to the facts of the instant
case; and this court is also of the view that the alleged
offence of the respondent no.7 is yet to be established in
the criminal proceeding and is, in any event, unrelated to
the institution. Counsel for the petitioner has already
submitted that criminal proceedings are still pending and
have not been concluded as yet.

It is also not in dispute that the petitioner is now
residing with her parents and has no contact with the
respondent no.7 who is also residing with his parents.
The interest of the petitioner in filing this proceeding for
suspension of her husband is also questionable, since
there does not appear to be any immediate benefit to the
petitioner, if the respondent no.7 is suspended as a
teacher from the concerned school.

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Since the criminal proceedings against the
respondent no.7 are pending, this court refrains from
expressing any view on the matter. This court finds no
ground in the writ petition for an order as prayed for.

WP No.6862(W) of 2018 is accordingly dismissed
without any order as to costs.

Certified website copy of this order, if applied for,
shall be given to the parties.

[Moushumi Bhattacharya, J]

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