Supreme court appeal
Nick
(Querist) 19 May 2012
This query is : Resolved
I want to appeal to supreme court against below order. Please advice.
1) What is the procedure to file a petition to supreme court from kolkata.
2) Who are the good lawyers in kolkata to file service matter petition to supreme court.
3) What are the chances against the below kolkara division bench order to get success in supreme court and approx time in supreme court to get this sort.
Please advice.
order:
The appellant is a primary teacher under the XXXXXXX Primary
School Council. The Council put him under suspension under Rule 7(2) of the West
Bengal Primary Education (conduct of service of Teachers of Primary Schools)
Rules, 2001, on the allegation that he was taken to custody by the police in a case
initiated under Section 304B of the Indian Penal Code, read with Section 498A
thereof. We are told, his daughter-in-law died an unnatural death in the matrimonial
home. The Council issued the order of suspension on September 24, 2009. He was
paid subsistence allowance to the extent of 50%. He was enlarged on bail. The
Criminal Court charge sheeted him, however, charge is yet to be framed. The
Authority subsequently enhanced the suspension allowance to the maximum limit of
75%. The Chairman was asked to assign reason for continuation of the order of
suspension. The Chairman passed an order expressing hisinability to withdraw
the same in view of the provisions of Rule 7(2) of the said
Rules 2001.
Being aggrieved, the appellant approached the learned Single Judge
unsuccessfully hence, this appeal.
Mr. XXXXX XX, learned Counsel appearing for the appellant contends
before us that duty of the Chairman, to form an opinion as to the continuance of the
order of suspension, is not an automatic process. According to him, so-called
reasoned order, appearing at page 25 of the paper book, would not depict the state of
mind, which prompted the Chairman to form an opinion against withdrawal of
suspension. Mr. XX relies on a Division Bench decision in the case of Birbhum District
Primary School Council & Anr. Vs. Md. Mokhtar Hossain & Ors., reported in 2009 (1) CHN 476.
He prays for setting aside the order of the Chairman with a corresponding order of remand so
that the Chairman could assign reason therefor.
Opposing the application Mr. X.X. XXX, learned Counsel
appearing for the XXXX XXX District Primary School Council contends that
the Criminal case is pending. The allegation against the concerned teacher is serious
in nature hence, the Chairman was right in extending the period of suspension. Mr.
XXXX further contends that formation of opinion under Rule 7(2) would
relate to enhancement of the suspension allowance. In the instant case the appellant
got the maximum benefit when his suspension allowance was enhanced to 75% and
he cannot make any grumble out of it.
Mr. XXX XX, learned Counsel appearing for the State adopts the
submissions made by Mr. XXX. According to him, the Council has taken a
right decision to wait for final decision from the Criminal Court.
We have considered the rival contentions. Paragraph 23 of the decision in
Birbhum District Primary School Council (Supra), being apt herein is quoted below :-
23. There can be no guidelines laid down in a strait-jacket as to how an appointing authority should
deal with the suspension of a primary teacher where the suspension commenced by virtue of the
deeming provision in Rule 7(2) of the 2001 Rules. The conduct of the appointing authority would be
justiciable and open to question in proceedings under Article 226 of the Constitution. It could well be
that in a given case the prolonged suspension on account of sheer inaction on the part of the
appointing authority may be unjustified. The period of suspension should ordinarily not be
unnecessarily prolonged but it could also be that plausible reasons exist for the prolonged suspension
and the appointing authority may be able to justify its opinion that the suspension needs to be
continued. Merely because a suspension that commenced under the legal fiction in Rule 7(2) of the
2001 Rules continues for a long period would not invalidate the suspension or lead to any conclusion
that the duration of the suspension stipulated in that rule is till the release of the primary teacher
following the detention. The fact that the provision is prone to misuse will not have a telling impact on
the purport of the provision or in the matter of construction thereof.
On a combined reading of the paragraph quoted (supra), it would appear that
formation of an opinion should also be made on the continuance of the order of
suspension. In our considered view, it could not be restricted to enhancement. The
question of enhancement would only come, once the period is extended; hence it is
correlated. The Council is regularly paying 75% of the monthly salary without
getting any corresponding service from the concerned teacher. Hence, the Council
must satisfy itself whether such continuance is necessary or not.
Coming back to the factual matrix involved herein, the concerned teacher
is charged with a criminal offence; said to be an incident gruesome in nature;
allowing him to join his service might carry a wrong signal to the society. It is too
early to form an opinion in this regard allowing him to join his service. It could only
be reviewed in case it is found that the Criminal case is being unnecessarily dragged.
We hope and expect that the order of dismissal of the writ petition,
impugned before us, would not preclude the Chairman from reviewing the situation
with two years interval. We also hope and trust, the Chairman would definitely
consider each and every aspect and form an opinion, being backed by cogent reasons.
We do not find any scope to interfere at this stage.
The appeal fails and is hereby dismissed without any order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the
parties, on priority basis.
R.K Nanda
(Expert) 19 May 2012
Search google to find good lawyer in Kolkata
and he will tell you everything .
Nadeem Qureshi
(Expert) 19 May 2012
agree with Mr. Nanda
Feel free to call
Guest
(Expert) 19 May 2012
You may contact Mr.Devajyoti Burman from LCI. He is from Kolkatta.
Regards,
Ashish Davessar
Advocate
Nu.Delhi.Law.Fora.
(Expert) 19 May 2012
Dear Querist,
You may file Special Leave Petition in the supreme Court through an Advocate-on-Record or as Petitioner-in-person.
Your Advocate-on-Record should have reasonable experience to handle such service matter. Since the issue is very simple and pointed i.e. whether and how long an employee can be placed under suspension and how would the suspension be allowed to unreasonably shorten the career growth of the suspended employee due to such pendency of trial.
Chances against the impugned order passed by kolkata DB would depend on many factors. On a prima facie look, it appears that you may have good chance to question (as above) the impugned order (of kolkata DB).
Approx time taken in the Supreme Court would be varying on the case to case basis.
Trust this would suffice.
Rabin Majumder
Advocate-on-Record
Supreme Court of India
New Delhi
Sudhir Kumar, Advocate
(Expert) 19 May 2012
But the case does not appear to be fit enough to be file in Apex Court. You have to challange continuation of suspension in lower court and high court.
