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Subhashis Jana vs The State Of West Bengal & Others on 11 November, 2019

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11.11.19
rpan / A166
Court No.15

W.P. No. 19471 (W) of 2019
Subhashis Jana
– Versus –
The State of West Bengal Others

Mr. Debashis Banerjee
… for the petitioner.
Mr. B. P. Vaisya,
Mr. Gourav Das
… for the Council.

Affidavit of service filed by the petitioner be kept on record.

Mr. Banerjee, learned advocate appearing for the petitioner submits that the

petitioner is an Assistant Teacher in Amtala Free Primary School. On the basis of a

complaint, a criminal case was lodged against him, being Contai Police Station Case

no.22 of 2019 dated 18th January, 2019 under Sections 498A/Section304B/Section34 of the Indian Penal

Code. The petitioner was in custody for about 115 days. A letter dated 9th July, 2019

was issued by the respondent no.9 asking the petitioner to clarify his absence in school

without any notice. The petitioner replied to the said memo on 30th July, 2019.

Subsequent thereto, the petitioner obtained bail on the basis of an order dated 9th

August, 2019 passed in CRM no.7237 of 2019 and thereafter he went to resume his duties

but he was not allowed to join the school.

He argues that under the West Bengal Primary Education (Conduct of Service of

Teachers of Primary Schools) Rules, 2001 the respondent no.9 has no authority to stop

the petitioner’s salary. Furthermore, the said memo dated 9th July, 2019 has been

issued by the respondent no.9 on the basis of a purported direction issued by the police
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authorities, as would be explicit from the document annexed at page 38 of the writ

petition. The order towards total stoppage of salary is, thus, not sustainable in law.

Mr. Das, learned advocate appearing for the Council submits that the petitioner

absented himself from his duties on and from the month of March, 2019. The Council

had no knowledge about the criminal proceedings initiated against the petitioner. As the

petitioner was detained in custody for a period exceeding 48 hours on a criminal charge,

he would be deemed to be under suspension and as such, the petitioner’s prayer for

resumption of duties cannot be allowed.

It is true that the petitioner had been in custody for a period exceeding 48 hours.

However, no order towards deemed suspension has been issued by the competent

authority, being the Council and as such the respondent no.9 could not have directed

total stoppage of salary of the petitioner. Even in the event the petitioner is under

deemed suspension, he is entitled to subsistence allowance subject to compliance of

necessary formalities. Ventilating his grievance, the petitioner has submitted a

representation to the respondent no.7 on 21st August, 2019 but the same has not yet

been considered.

In view thereof, the writ petition is disposed of with a direction upon the

respondent no.7 to consider the petitioner’s representation dated 21st August, 2019 in

the light of the observations made in this order and to take a decision, in accordance

with law and communicate the same to the petitioner within a period of four weeks

from the date of communication of this order.

With the above observations and directions the writ petition is disposed of.

There shall, however, be no order as to costs.

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Urgent photostat certified copy of this order, if applied for, be given to the

learned advocates for the parties upon compliance of all necessary formalities.

(Tapabrata Chakraborty, J.)

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