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The Governing Body, Durgapur Institute of Advance Technology & Management & Others v/s Subhangshuman De & Others


Company & Directors' Information:- DURGAPUR CORPORATION PRIVATE LIMITED [Active] CIN = U27209WB2016PTC217839

Company & Directors' Information:- ADVANCE TECHNOLOGY PRIVATE LIMITED [Strike Off] CIN = U32303DL1985PTC021478

Company & Directors' Information:- S M INSTITUTE OF ADVANCE TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72300MH2015PTC267623

Company & Directors' Information:- H S MANAGEMENT INSTITUTE PRIVATE LIMITED [Active] CIN = U74140DL2005PTC141500

Company & Directors' Information:- A S INSTITUTE OF MANAGEMENT PRIVATE LIMITED [Strike Off] CIN = U80302DL2005PTC140941

Company & Directors' Information:- ADVANCE LIMITED [Not available for efiling] CIN = U99999MH1934PTC002117

    F.M.A.No. 805 of 2015

    Decided On, 14 July 2015

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SIDDHARTHA CHATTOPADHYAY

    For the Appellants: Binoy Kumar Panda, Shamimul Bari, Subham Kanti Bhakat, Advocates. For the Respondents: R1, Malay Kumar Basu, Sr. Advocate., Lakshmi Kanta Pal, Arabinda Sen, Rita Ganguly, Bandhu Brata Bhula, R6, Robiul Islam, Raju Mondal, Advocates.



Judgment Text

Siddhartha Chattopadhyay, J.

1. This appeal arises out of the final order passed on 12/8/2014 by a learned Single Judge of this Court in WP No. 18054(W) of 2013 whereby and whereunder the letter / communication dated 31.05.2013 issued by the General Manager (Administration), Durgapur Institute of Advance Technology and Management was set aside. The respondents were directed to allow the Writ Petitioner / Private Respondent No. 1 herein to join his duties forthwith. However, an observation was made to the effect that since the said Petitioner / Respondent No. 1 had not performed his duties, he would not be allowed any financial benefits for the period during which he was absent from duty but the benefit of continuity in service shall be accorded to him. The Writ Petitioner / Respondent No. 1 herein (Subhangshuman De & Ors.) filed W.P. No. 18054(W) of 2014 wherein while making the State and its Authorities as formal respondents together with the All India Council for Technological Education, its Officers and the Durgapur Institute of Advance Technology and Management as respondents, he prayed for an Order for setting aside and / or quashing the aforesaid Order dated 31.05.2013. He also prayed for an Order commanding upon the respondents to allow him to resume his duties as Assistant Professor in the College together with all arrears and consequential benefits.

2. In the Writ Petition, the petitioner referred to his service career in different paragraphs and stated inter-alia that on 26.05.2010 he had appeared along with other candidates for appointment as a Lecturer in Computer Science and Engineering in the aforementioned Durgapur Institute of Advance Technology and Management. According to the Petitioner the said Institute is an "other authority" within the extended definition of Article 12 of the Constitution of India.

3. The Writ Petitioner (Private Respondent No. 1 herein) (hereinafter referred to for the sake of brevity as the Writ Petitioner) further stated, that after considering his candidature, he was issued with an Appointment Letter dated 01.06.2010 whereby and whereunder, the Chairman of the said Institute appointed him on probation of one year from the date of his joining with basic pay of Rs. 8,000/- per month in the scale of Rs. 8,000 - 13,500. It was indicated that in case of non-satisfactory performance, the probationary period of the Petitioner may be extended for a further period as per recommendations of the Review Committee.

4. The Petitioner stated that after getting the aforesaid Appointment Letter, he reported for duty and started working on and from 02.07.2010. According to the Petitioner, on 02.07.2011 while going to attend college by his car at about 5:30 A.M. his car met with an accident involving a truck bearing No. WB 65 / 5912 and which was coming from the opposite direction. The driver of the private car died on the spot and the Petitioner was taken to the nearest situated hospital at Shaktinagar in the District of Nadia. According to the Petitioner, his physical condition was such that he was not in a position to write even a single word and was also not in a position to inform his employers.

5. On the same date i.e. on 02.07.2011, the Petitioner was transferred to the Apollo Gleneagles Hospital at Kolkata where he was interned for about a fortnight. On 16.07.2011 he was discharged with advice to continue physiotherapy thrice daily and also to use a cervical collar for three months. According to the Petitioner, he was not completely cured and had to go back to the hospital for further medical assistance. He was under treatment of one Dr. Sanjoy Bhowmick for the period 02.06.2011 to 18.08.2011. He was thereafter placed under one Dr. A. Shobhana of the Institute of Neurosciences, Kolkata. On 25.09.2011 the Petitioner again fell sick and went back for treatment under Dr. Sanjoy Bhowmick of Apollo Gleneagles. On the 10th October, 2011, he was again placed under the treatment of Dr. Mahendra and since he had not completely recovered, he again went to the Apollo Gleneagles Hospital where he was examined on 22nd December, 2011. It was only on 22nd December, 2011 that the attending doctor namely Dr. Sanjoy Chatterjee certified the Petitioner to be fit to join his duties. However, on 24th January the Petitioner was again reassessed and on 31.01.2012 the Petitioner expressed his intention to join duties and filed a letter to that effect before the Director of the Institute. A copy of the said letter was marked as Annexure P3 to the Writ Petition and necessary medical documents were also put on record.

6. The Petitioner stated that after receiving such a letter on 31.01.2012, he was told by the authorities of the college on 7th February, 2012 that he may come and join on 12.02.2012. On the said date the Petitioner wanted to join vide Annexure P4 to the Writ Petition. The Petitioner complained that he was not allowed to join in spite of a certificate of fitness issued by the concerned doctor. Thereafter he moved a Writ Petition before this Court vide WP No. 4160(W) of 2012. On 11.12.2012 a learned Single Judge of this Court gave directions for affidavits.

7. On 18th March, 2013 the said Writ Petition came up for hearing and by judgment dated 26.03.2013, a learned Single Judge directed the formal Respondents to consider the prayer / representation of the Petitioner dated 31.01.2012 and 13.02.2012 within a period of four weeks from the date of communication of the Order.

8. It appears that on 31.05.2013 the institute took up the matter pursuant to the direction of the learned Single Judge made in WP No. 4106(W) of 2012 and proceeded to express their regret. The reasons mentioned in the said letter dated 31.05.2013 are incorporated herein for the convenience of all --

"1. That, you were appointed as lecturer in Computer Science and Engineering Department at Durgapur Institute of Advance Technology and Management vide letter no DIATM/Appointment/Faculty/719 dated 01/06/2010 with certain terms and conditions to be obeyed by you.

2. That, you were a probationer on the fateful day as per the appointment letter.

3. That, according to your statement you met an accident on 2nd July 2011 and after completion of your necessary treatment, you were released from the hospital on July 16th 2011. It has also revealed from the records that you were stable on the date of release from the hospital and as such it was natural expectation of the Institute Management that you will immediately contact the authority of the institute to take appropriate steps for regularisation of your leave of absence as per the rules of the institute, but you did not do so & you remained absent, as such; it is deemed that you neglected to abide by the rules and regulations stipulated by the institute management. Moreover, your such conduct was deemed to be not constructive and also was not in parity with the educational environment of the Institute, which caused sufferings of the students.

4. That, as alleged you have appeared before the Institute Management on January 31st 2012 i.e. on expiry of 6 months although as per the record you were stable on the date of release i.e. on 16th July 2011 to report to the Institute Management to take appropriate steps for regularisation of leave as per the rules of the Institute, thus and remained absent unauthorisedly.

5. That, your such prolonged and unauthorized absence has given an indication to the Institute Management which deemed to be that you are interested and/or incapable to continue in the employment, more so, the management of the Institute is unable to allow such luxury at the cost of the students by way of depriving them from necessary education.

6. That, further you have submitted a fitness certificate dated 22/12/2011 from the concerned hospital indicating that you were fit to resume your duty therefore it was natural expectation of the Institute management that soon after the recovery at least on 22/12/2011 or any date thereafter at the earliest you would join. Instead even you did not given any intimation to the Institute Management stating your ability or inability to join duty. Your such conduct deemed to be contradictory to your commitment expressed at the time of joining the service vide your letter dated 02/07/2010.

7. That, because of the facts and circumstances stated above and to maintain the educational environment conducive and regular for the interest of the students the institute management had to appoint another faculty to the post. It was deemed to be that your activity and conduct was not constructive and in parity with the educational environment and as such the Institute management had filled up the vacancy for the interest of the students and ensured the proper educational facilities without any interruption to avoid unrest among the students.

In view of the above facts revealed from records, it has decided to communicate that your alleged representation dated 31/1/12 and 13/2/12 to allow you to resume service as lecturer in computer science engineering department is considered meticulously but regretted at this stage. However, to honour the Judgment the Institute Management may consider your prayer for your appointment selectively in future with priority, subject to vacancy in the post of lecturer in computer science engineering department arises and your qualification, experience and other criteria is synchronised to the requirement of Institute Management."

9. Being aggrieved and dissatisfied with the aforementioned order / communication dated 31.05.2013, the Petitioner filed the connected Writ Petition being WP No. 18054(W) of 2013. The matter was finally decided by the impugned judgment dated 12.8.2014 setting aside the said order and directing the Respondents to allow the Petitioner to join duties forthwith. The learned Single Judge, however, did not allow any financial benefits for the period during which he had remained absent from duty.

10. The aforementioned order of the learned Single Judge has been assailed in this appeal. Before we deal with the merits of the case, we must record at the very outset that learned Counsel appearing for the Appellants raised an objection to the maintainability of the Writ Petition itself saying that the Institution was not a "State" within the meaning of Article 12 of the Constitution of India. We have no hesitation rejecting this contention summarily. Let it be recorded that in Paragraphs 3 and 4 of the Writ Petition, the Petitioner had very categorically stated that the College Authorities were discharging public function inasmuch as they were imparting education to students.

11. In Paragraph 2 the Petitioner had stated that the Institute was a recognised institution under the All India Council for Technical Education which was a statutory body under the Govt. of India recognised by the U.G.C and it was affiliated to the West Bengal University of Technology. The Respondents did not deny this part of the statement of the Petitioner to the effect that it was a recognised Institution of the All India Council for Technical Education, a statutory body under the Govt. of India recognised by the U.G.C and affiliated to the West Bengal University of Technology. All that they said was that they denied and disputed everything except what were matters of record. They have, however, not stated anything with regard to the aforementioned statement of the Petitioner. In a Judgment of the Hon'ble the Supreme Court passed in the case of Ramesh Ahluwalia v. State of Punjab and Ors. reported in (2012)12 SCC 331 it has inter-alia been held that if a Respondent performs public functions and provides education to children in their institutions, then the issuance of a Writ cannot be withheld merely because the Respondent is a purely unaided private educational institution. In the instant case the institution imparts education for purposes of fostering technical education after being recognised by a statutory body being the All India Council for Technical Education. That being the position, the Appellants cannot escape by saying that the Writ Petition is not maintainable. Moreover, in the facts and circumstances of this case, we cannot ignore that under Article 226 of the Constitution of India, wide powers have been conferred upon the High Courts to issue high prerogative Writs to correct errors and / or injustice meted out to citizens of India and for the enforcement of their fundamental rights. On the basis of the aforementioned analogy, we are not inclined to accept the submissions of the learned Counsel for the Appellant that the Writ Petition itself was not maintainable.

12. That upon a perusal of the grounds taken in issuing the impugned communication dated 31.05.2013, it appears that the Appellants proceeded to assume that although he was released from the hospital on 16th July, 2011 and although he was stable on the date of release, the Petitioner was expected to immediately contact the authority of the institute towards taking appropriate steps for regularising his leave or absence but since he had remained absent, it was deemed that he had neglected to abide by the rules and regulations of the Institute. The Appellants further took the plea that the conduct of the Petitioner therefore was not constructive nor in parity with the educational environment of the Institute which caused sufferings to the students.

13. In the context of what the author of the impugned communication dated 31.05.2013 stated, we would like to point out that such assumptions and / or presumptions were totally uncalled for. If an accident had occurred by which the Petitioner had to be interned in a hospital

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for a long period of time followed by physiotherapy, and if the injury sustained by the Petitioner was indeed grievous in nature, then it is normal that the injured may not be able to inform because he has to give priority to medical attention and therefore such a conduct should not be considered to be prejudicial. 14. The other ground taken in the impugned communication dated 31.05.2013 was that in the interest of the students concerned the Institute had to appoint another faculty to the post. This conduct of the Institute must be deprecated thoroughly. They could not have proceeded to appoint somebody else in place of the Petitioner without giving him an opportunity of hearing. They did so at their own cost and at their own risk. This Court will not give its seal of approval to such an appointment. Considering the aforementioned incidents we do not find any reason to interfere with the Order of the learned Single Judge. He was therefore absolutely correct by saying that the appointment given to such a "private respondent" was also cancelled. He obviously meant that the appointment given to some other person whose details have not even been given, stood cancelled. We approve this Order of the learned Single Judge. 15. In this circumstances, we Dismiss the Appeal and uphold the Order of the learned Single Judge. 16. There shall be no order as to costs. 17. Urgent Certified Copy to be issued upon appropriate application(s) being made in that regard. Appeal dismissed.
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