Pranab Kumar Chattopadhyay, J.@mdashThis appeal has been preferred at the instance of the Managing Committee of a recognised aided institution. The Managing Committee of the concerned institution being aggrieved by the final order passed by the learned Single Judge in the writ being W. P. No. 2114 of 2002 filed by the writ petitioner/respondent No. 1, preferred the instant appeal. As a matter of fact, the writ petition filed by the writ petitioner/respondent No. 1 being W.P. No. 2114 of 2002 and the other writ petition filed by the appellant herein being W.P. No. 15302 (W) of 2002 were heard analogously and disposed of by the said learned Single Judge by the common judgment and order dated 21st January, 2003. By the aforesaid judgment, the learned Single Judge allowed the writ petition being W. P. No. 2114 of 2002 filed on behalf of the respondent No. I/writ petitioner, an employee of the concerned school and dismissed the writ petition being W. P. No. 15302 (W) of 2002 filed on behalf of the Managing Committee of the said school. The employee of the concerned school, namely, the writ petitioner/ respondent No. 1 herein filed the writ petition being W.P. No. 2114 of 2002 for implementation of the order passed by the Director of School Education, West Bengal by the Memo dated 6th June, 2002/10th June, 2002. Pursuant to an earlier order dated 24th January, 2001 passed by this Hon''ble Court in another writ petition filed by the respondent No. I/writ petitioner herein, the said Director of School Education, West Bengal heard the school authorities, respondent No. 1 herein and also the representative of the District Inspector of Schools (SE), South 24-Parganas and ultimately issued certain directions as have been specifically mentioned in the said Memo dated 6th June, 2002/10th June, 2002.
2. In the aforesaid Memo dated 6th June, 2002/10th June, 2002, the Director of School Education, West Bengal specifically obseryed that the school authorities did not initiate any proceeding against the employee concerned namely, the respondent No. I/writ petitioner herein for the long absence and such behaviour on the part of the school authorities leads to a reasonable doubt that the writ petitioner was prevented from attending the school and it was under duress that the said employee could not perform his normal duties in the school. The Director of School Education, West Bengal, therefore, issued certain directions by the said Memo which are quoted hereunder:
.................... In the circumstances and in terms of the Govt. Order in No. 477.Edn (S) dated 18-06-1980 I hold that the period of absence of the petitioner from the school from 01-08-1995 to 16-02-1999 be treated as period spent on leave without pay, but the period will count towards increments, as a special case; such period of absence will automatically be counted as continuity of service for the purpose of pension and other retirement benefits the period will also count for the purpose of granting him incremental benefits by way of Career Advancement as may be admissible in terms of para 16(2) of the Notification No. 33-Edn (S) dated 07-03-1990 issued by the Education Department, Govt. of West Bengal (Revision of scales of pay of teaching and non-teaching employees of aided educational institutions with effect from 01-01-1986).
Please inform all concerned accordingly for taking necessary action........................."
3. The school authorities were aggrieved by the aforesaid observations of the Director of School Education, West Bengal in respect of the concerned employee, namely, the respondent No. I/writ petitioner herein and filed the writ petition for setting aside and/or quashing of the aforesaid order of the Director of School Education, West Bengal by filing the writ petition being W. P. No. 15302 (W) of 2002 which was, however, dismissed by the learned Single judge in the judgment under appeal while by the same judgment the other writ petition filed by the employee, namely, the respondent No. I/writ petitioner seeking implementation of the order passed by the Director of School Education, West Bengal dated 6th June, 2002/10th June, 2002 was allowed.
4. In the present appeal, the Managing Committee of the school being the appellant took the stand that when an employee did not work, the employer is entitled to withhold payment of salary, increment etc. without even resorting to any disciplinary action under the Service Rules.
5. The learned Counsel of the appellant submits that the writ petitioner/respondent No. 1 herein by not attending the school cannot claim salary and/or benefit of increment. The learned Counsel of the appellant further submits that in case of long absence of an employee from duty, incremental benefits can be withdrawn even without initiating any disciplinary proceedings as according to the appellant, withdrawal of the incremental benefits cannot be said to be a punishment.
6. All the aforesaid contentions of the appellant herein were taken into consideration by the Director of School Education, West Bengal and as mentioned hereinbefore, the said Director of School Education, West Bengal upon hearing the concerned parties came to the conclusion that the writ petitioner/respondent No. 1 herein could not perform his normal duties in the school under duress as he was prevented from attending the school at the relevant point of time. The learned Advocate of the appellant urged before this court that the Director of School Education, West Bengal should have taken oral evidence of the concerned parties in order to ascertain whether the concerned employee, namely, the respondent No. I/writ petitioner herein was actually prevented from attending the school or wilfully absented himself at the relevant point of time.
7. On examination of the records we do not find that the appellant herein ever requested the Director of School Education, West Bengal to take oral evidence and therefore, the said Director of School Education, West Bengal cannot be blamed or said to be at fault for not taking any oral evidence in the matter. The Director of School Education, West Bengal in compliance with the specific direction passed earlier by this Hon''ble Court granted opportunity of hearing to all the necessary parties including the appellant herein and passed a reasoned order as mentioned in the Memo dated 6th June, 2002/10th June, 2002.
8. The learned Single Judge has specifically observed in the judgment under appeal that the Managing Committee of the concerned school did not explain how the said order of the Director of School Education, West Bengal will prejudice the interests of the Managing Committee of the school. We also fail to understand how the appellant herein will suffer any prejudice if the financial benefits are granted to the concerned employee by sanctioning the benefits of increments pursuant to the Memo dated 6th June, 2002/10th June, 2002 issued by the Director of School Education, West Bengal specially when the said appellant was not directed to bear any financial responsibility by making payment of any amount to the respondent No. I/writ petitioner.
9. On examination of the judgment under appeal and considering the submissions of the learned Counsel of the respective parties and further considering the reasoned order of the Director of School Education, West Bengal dated 6th June, 2002/10th June, 2002, we are of the opinion that the learned Single Judge has rightly observed that the Managing Committee of the School, namely, the appellant herein is seeking to unjustly punish an employee, namely, the respondent No. I/writ petitioner herein without taking recourse to law. In our considered opinion, the Director of School Education, West Bengal has rightly decided the issues and arrived at a correct conclusion in respect of the grievances of the writ petitioner/respondent No. 1, which was subsequently approved by the learned Single Judge by the judgment under appeal.
10. In the aforesaid circumstances, we do not find any error in the judgment under appeal and therefore, we affirm the said judgment of the learned Single Judge and approve the directions in the judgment under appeal. Accordingly, the appellant herein is directed to forthwith implement the order of the Director of School Education, West Bengal dated 6th June, 2002/10th June, 2002 without any further delay but positively within a period of two weeks from today.
11. This appeal thus stands dismissed being devoid of any merit with costs assessed at Rs. 5000/- to be paid by the appellant to the respondent No. I/writ petitioner within three weeks from date. All parties concerned are to act on a Xerox signed copy of this judgment and order on the usual undertaking.
Arunabha Basu, J.
I agree.
