SIDHESWAR CHATTERJEE Vs. KHARBANA HIGH SCHOOL

JUDGEMENT

(1.) This Second Appeal, at the instance of the plaintiff, is against a judgment and decree of reversal, The Trial Court decreed the Suit instituted by the plaintiff/appellant for declaration that the Order of suspension ending with the Order of dismissal passed by the Managing Committee of the Kharbana High School against the plaintiff was illegal, without jurisdiction and not binding together with a declaration that he was entitled to reinstatement and also that he was entitled to arrears of pay together with all other admissible allowances from the date of his dismissal. The lower Appellate Court reversed the said decree and dismissed the Suit substantially on the ground that the Suit was not maintainable in Civil Court as the plaintiff was entitled to seek relief before the Appeal Committee of the Board of Secondary Education constituted under the West Bengal of Secondary Education Act.

(2.) The admitted facts are that the plaintiff was a teacher in Kharbana High School and he was put under suspension on the ground of having been guilty of moral turpitude relating to a female escort of the school Smt. Anjali Mukherjee and was ultimately dismissed from service. From the records another important fact also transpires, namely, that the said female escort Smt. Anjali Mukherjee had ultimately withdrawn her complaint.

(3.) While allowing the appeal and setting aside the decree granted by the Trial Court, the Lower Appellate Court, it appears, did not go into the merits of the factual contentions but held that the Suit was not maintainable on the ground as stated hereinabove. From a construction of Section 22(4) of the West Bengal Board of Secondary Education Act, Regulation 11 of the (Manner of Hearing and deciding Appeals by Appeal Committee) Regulation, 1964 it appears that an aggrieved teacher might move the Appeal Committee against any Order passed by the Managing Committee and the Order passed by the Appeal Committee will be final and no Suit or proceeding would lie in any Civil or Criminal Court. The Appellate Court, fell into a substantial error of law in holding that the Suit was not entertainable overlooking that the Suit was not against any decision of the Appeal Committee nor the jurisdiction of the Appeal Committee had been invoked by the plaintiff/present appellant. On behalf of the respondent Miss. Parmer has strongly urged that notwithstanding the aforesaid mis-construction the present Second Appeal is liable to be dismissed as it is well-established that no Suit for reinstatement is maintainable except when it falls within the well-known exceptions laid down judicially in AIR 1970 SC 1244, 79 CWN 672, 75 CWN 21. All the said decisions are all distinguishable on facts. In the present case, the substantial grievance is based on absence of any disciplinary proceeding and of prior approval of the Board along with non-consideration of prayer for damages by the Lower Appellate Court. I am unable to accept the said submission of Miss. Parmer as, in my view, the Lower Appellate Court did not at all advert to the said aspect of the matter and did not consider whether such a Suit would be maintainable when allegedly a mandatory provision of the statute or statutory Rule governing dismissal of a teacher by Managing Committee, namely, prior approval of the Board and drawing up of a formal proceeding had not been complied with. Exclusion of Civil Courts jurisdiction is not to be readily presumed. On the basis of the principle laid down in the case of Omkarmal Khedia v. Sm. Nirmala Patel & Ors. reported in 1975(1) Calcutta Law Journal 237 the Court of appeal below should have considered the point of maintainability of the present Suit. The other reason for which I feel inclined to send the appeal back for reconsideration is that even if the Suit for reinstatement or for a declaration that the dismissal was illegal becomes not maintainable, the other alternative prayer for damages for wrongful dismissal deserves consideration by the Lower Appellate Court before dismissing the Suit in entirety and relegating the plaintiff to the relief under the West Bengal Board of Secondary Education Act before the Appeal Committee.