Calcutta High Court
Sri Pradip Chakraborty And Ors. vs State Of West Bengal And Ors. on 6 January, 2006
Equivalent citations: (2006)3CALLT328(HC), AIR 2006 (NOC) 651 (CAL.)
JUDGMENT Arun Kumar Mitra, J.
1. Challenge in this writ petition is the appointment of the Administrator by the West Bengal Board of Secondary Education which has been issued through Memo No. S/111/2 dated 20.02.2004 being annexure 'P-26" to the writ petition. The said impugned memo has been issued by the Secretary, West Bengal Board of Secondary Education. Challenge of the said impugned memo is on the following grounds:
1) The memo has been issued by the President under Section 28(2) of the West Bengal Board of Secondary Education Act, 1963 (as amended) that is in exercise of emergency power. According to the senior learned counsel, emergency has not been disclosed and the President cannot exercise emergency power without any reason or disclosing emergency.
2) This is a case of supersession of A Managing Committee during its valid tenure and as such the provisions of Rule 8 of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 (hereinafter as Management Rules).
3) According to the learned senior counsel two things are mandatory in case of supersession of a Managing Committee that the due regard to the report of the Director of School Education and opportunity of hearing but in the instant case both are absent. Neither the President or the Executive Committee looked into any report or asked for any report from the Director of School Education nor such a report is there and no opportunity was given to the Managing Committee to place their case before the Executive Committee.
2. The learned senior counsel Mr. Panja submitted that in view of these facts the memo/order of the Board appointing Administrator should be set aside.
Background:
3. The life of erstwhile Managing Committee of Ariadaha Kalachand High School (Higher Secondary) (hereinafter termed as said School) expired oh 22.05.2002. On 19.06.2002 the District Inspector of Schools (Secondary Education), Barrackpore appointed a Drawing and Disbursing Officer. On 21.01.2003 a writ petition was moved praying for placement of departmental nominee and the said writ petition was disposed of by directing the District Inspector to place the departmental nominee since the election was complete within four weeks from date of that order and accordingly, departmental nominee was placed. The first meeting of the newly elected members of the Managing Committee was held on 25.02.2003.
4. From the above fact it is clear that the life of the Managing Committee, as per the rules was there up to 2006. A letter dated 20.05.2003 was issued by the District Inspector of Schools intimating the Secretary that an inquiry will be held by A.I. of Schools (S.E.) Sri D.K. Ganguly on 22.05.2003 at 12-00 noon but 22.05.2003 since the Secretary was pre-occupied and he received the letter on the very same date i.e. on 22.05.2003 at 10-00 A.M. he prayed for postponement of the inquiry. The Secretary of the school lodged an FIR against Tapas Sinha Roy, the then Head Master on probation for defalcation of a sum of Rs. 19,584 received by him from the Railway Recruitment Board.
5. On 22.08.2003 the District Inspector of Schools appointed one Sukumar Das as Drawing and Disbursing Officer of the said School. On 22.09.2003 the Managing Committee discontinued the service of Tapas Sinha Roy, who was the Head Master on probation. In the meantime the dispute in between the Managing Committee and the said probationer Head Master continued.
6. On 28.02.2004 the petitioner No. 3, Sri Ajoy Ghoshal, the Secretary of the Managing Committee received a letter being Memo No. S/111/2 dated 28.02.2004 issued by the Secretary of the Board appointing Sri Sukumar Das. Assistant Inspector of Schools, Barrackpore as Administrator and this is the memo impugned.
7. The main prayer being prayers "a" & "b" to the writ petition are challenging the appointment of Administrator by the Board and for restraining the respondents from interfering with the day to day functioning of the Managing Committee of the said School.
8. It is, therefore, clear from the above background that the dispute between the Managing Committee and the probationer Head Master is not the issue herein: the main issue is the appointment of Administrator. Addition of party application was filed during the course of this writ proceeding an the same addition of party application being CAN 3615 of 2004 was disposed of by adding applicant Nos. 1, 2 and 3 that is Tapas Sinha Roy, Debashis Dutta and Bandhu Kishore Das as respondent Nos. 8, 9 and 10. Other applicants were however, not added.
9. Affidavit-in-opposition has been filed by respondent Nos. 2, 3, 4 and another opposition has been filed by said Sri Tapas Sinha Roy and affidavit-in-opposition was also filed on behalf of respondent No. 6 (District Inspector of Schools). Reply to the said oppositions was filed by the writ petitioners. Allegations and counter allegations were made on behalf of the petitioners and the respondents through the writ petition, affidavit-in-oppositions and the affidavit-in-reply.
Submissions:
10. Mr. Panja. the learned senior counsel for the petitioners, as stated above, challenged the supersession of the Managing Committee and appointment Adminstrator on the grounds, as stated above as made out in the writ petition.
11. On behalf of the Administrator Mr. Sumit Kr. Panja, the learned Counsel made his oral submission as well as filed written notes on submissions. However, in both ways Mr. Panja submitted that the Executive Committee under Section 19A(3)(e)(iv) of the West Bengal Board of Secondary Education Act, 1963 (hereinafter termed as said Act) has got the power to suspend the Managing Committee and appoint Administrator.
12. Mr. Panja also submitted that under Section 28(2) of the said Act the President has also got the emergency power and he can take steps with certain stipulations that is placement of his decision before the Executive Committee for ratification.
13. Mr. Panja appearing for the Administrator referred to Rules 16. 17, 18, 19, 20 and 21 of the Rules for Management of Recognised Non Government Institutions (Aided and Unaided), 1969 and tried to clarify the position of the Managing Committee in holding out different types of meetings and Mr. Panja submitted that there is no provision for any Circular Meeting. However, the main thrust of Mr. S.K. Panja's submission is that the appointment of Administrator has been done in accordance with law. Here, the President has not exercised emergency power and in fact the Executive Committee took the decision, adopted a resolution and the user of the term Rule 28(2) is not relevant here inasmuch as the Executive Committee in its power took a decision.
14. Mr. Panja submitted that the order is to be read as a whole and there should be harmonious construction. One should not go into the specific wording and the order should be given in its exact meaning in summary. Here, from the Board's record it will appear that the Executive Committee took a decision and naturally, user of the term under Section 28(2) can be easily ignored here. Mr. Panja in this context relied on a decision reported in 1995 Vol.(l) SCC, 156 and he relied on the observations made in paragraph 7 of this Judgment and submitted that when the statute indicated that the action be taken in a particular manner it must be done in that manner and in no other way.
15. Mr. Panja submitted, however, that from the documents on record it will appear that one Officer of the Board went to serve a show-cause noticed and the same was refused. Accordingly, notice was pasted at the outer wall of the residence and naturally, the Executive Committee had no option but to take a decision regarding appointment of Administrator. The three members Committee of the Board also enquired about the irregularities committed in the School and the report of the said Committee was also considered.
16. Mr. Panja, on several correspondence in between the Board and the Secretary of the School had tried to establish that there were so many irregularities committed by the Managing Committee in the financial affairs as well as in administrative actions including the removal of Tapas Sinha Roy from the post of Head Master.
17. Mr. Chatterjee, appearing for the added respondent on filing affidavit also submitted that there were illegalities on the part of the Managing Committee and the removal of Sri Tapas Sinha Roy, his client from service is absolutely illegal and mala fide.
18. On behalf of the District Inspector of Schools (S.E.) affidavit was also filed and the same submission was made that since there was financial irregularity Drawing and Disbursing Officer was appointed and there was no illegality in appointment of the Administrator.
19. Mr. Tulsi Das Maity. appeared for the Board and adopted the submissions made by Mr. S.K. Panja (appearing for the Administrator). Mr. Maity produced the records of the Board before this Court.
20. Mr. Panja, the learned senior counsel reiterated his submissions in reply and relied on a decision of the Division Bench of this High Court reported in Panchanan Mondal and Ors. v. West Bengal Board of Secondary Education and Ors. Mr. Panja, the learned senior counsel relied on the observations made in paragraphs 7 and 8 of this Judgment which are quoted hereinbelow:
7. Keeping in view the fact that the President of the Board exercising his jurisdiction under Section 28(2) of the West Bengal Board of Secondary Education Act and Rule 8 of the Management Rules is required to comply with two conditions precedent, therefore, namely, the report as regards mismanagement of the affairs of the school and compliance of the principle of natural justice and as in the instant case admittedly both the aforementioned conditions precedents have not been fulfilled, the impugned order cannot be sustained.
"8. The learned Counsel for the respondents submits that this Court should direct either the Administrator or District Inspector of Schools (S.E.), South 24- Parganas, to act as D.D.O. Such a power to appoint a D.D.O. is conferred under Sub-rule(3) and Rule 27 of the Management Rules. Keeping in view the fact that this Court is not concerned at this stage with the allegations and counter-allegations as against the Managing Committee vis-a-vis the Headmaster of the School, we refrain ourselves from passing any such order. We may however observe that in the event exigency of situation requires applicability of Rules 8 and 27(3) of the Management Rules, the concerned authoriy may pass an appropriate order in accordance with law.
21. Mr. Panja, the learned senior counsel relied on another decision Ramchandra Keshav Adke (dead) by LRs and Ors. v. Govind Joti Chavare and Ors. Mr. Panja laid stress on the observations made in paragraph 25 of this decision which is quoted hereinbelow:
25. A century ago, in Taylor v. Taylor, Jessel, M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing miust be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor, and later by this Court in several cases, to a magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure. 1898. This rule squarely applies "where indeed, the whole aim and object of the Legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other."5 The rule will be attracted with full force in the present case, because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the Legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it non est for the purpose of Section 5(3)(b).
Points for decision & decision:
1) Whether the appointment of the Administrator was made in super session of a valid Managing Committee.
2) Whether the President exercised emergency power under Section 28(2) of the West Bengal Board of Secondary Education Act, 1963 in appointing the Administrator or if so done that was done validly.
3) Whether the appointment of Administrator was made by the Board in accordance with the law or not.
22. In answer to the first question, some admitted facts appeared from documents on record. In 2003 election was held, this Court passed an order directing the District Inspector of Schools (S.E.) concerned to place the departmental nominee. The departmental nominee was placed accordingly in pursuance of the order passed by this Court and the meeting of the reconstituted Managing Committee was held and naturally, the life of the managing Commttee remained valid till 2006. Therefore, appointment of Administrator before the said period automatically comes as supersession of the Managing Committee. It cannot be said that after the tenure being over Managing Committee became defunct and Administrator was appointed. It is not disputed that the life of the Managing Committee was there. It appears from the records and also from the documents advanced by the parties.
23. Apparently, it appears from the impugned memo appointing Administrator that the President exercised emergency power inasmuch as in paragraph 3 of the said impugned memo it has been stated "Accordingly President, West Bengal Board of Secondary Education, in exercise of the powers conferred upon Section 28(2) of the West Bengal Board of Secondary Education Act, 1963, as amended, hereby appoint Sri Sukumar Das. A.I. of Schools, Barrackpore, North 24-Pgs. to act as Administrator of Ariadaha Kalachand High School, Ariadaha, Kol-57, for a period of one year from the date of assumption of charge of the school or school with the election of office bearers or until further orders whichever is earlier, to fill up the Administrative vaccum with immediate effect." Though' Mr. Sumit Kr. Panja, the learned Counsel appearing for the Administrator clarified the term 'accordingly' by submitting that in the earlier paragraph it has been stated that "The E.C. after deliberation over the matter resolved to appoint an Administrator in the school to remove deadlock in the affairs of the school" but again prior to the same line there is one introducing line where it has been stated "The order of the President dated 19.2.04 is reproduced below. Though not only Mr. S.K. Panja, the learned Counsel but also Mr. Maity, appearing for the Board on production of records tried to establish that Executive Committee, which is legally empowered has adopted a resolution.
24. It appears from the records that on 02712/2003 there was a resolution in Bengali. The subject matter of the resolution and its consequential adoption are quoted in the translated form.
Sub: Matter under discussion: 20(5) Insofar as the administrative difficulties/complications which arose in the administration of North 24-Parganas Ariadaha Kalachand High School, decision be taken on the basis of report of the inquiry team and after giving hearing.
Decision:
25. It has been decided after discussion that on the basis of the recommendation of the inquiry team of the Board and on the basis of hearing, immediately Administrator should be appointed. It is further resolved that the Director of School Education, West Bengal should be contacted for appointment of the present D.D.O. as Administrator of the School.
26. The above is the whole resolution on the basis of the point of discussion of the Executive Committee on which both the learned Counsel for the Administrator and for the Board relied upon and said that this is the resolution or decision of the Executive Committee which has got power to appoint Administrator. Both the learned Counsel though submitted that the order cannot be said to be an order passed in exercise of emergency power, the user of the term '28(2)' is relevant in the context and actually on the basis of the decision of the Executive Committee, as quoted above, the appointment of Administrator was made.
27. The conclusion of the answer to question No. 2 is related with the answer of the question No. 3 and naturally, now I will discuss the answer to question No. 3 and then I will come to a comprehensive conclusion of question Nos. 2 and 3.
28. Prior to discussion let me quote the relevant provisions of the statute.
29. Section 28(2) of the West Bengal Board of Secondary Education Act, 1963 runs in the manner as follows:
28. Powers and duties of President.-
(2) The President may, in any emergency, exercise any of the powers of the Board or the Executive Committee provided however that he shall not act contrary to any decision of the Board or the Executive Committee and shall, as soon thereafter as may be, place a full report before the Board or the Executive Committee as the case may be, of the action taken by him stating reasons therefor.
30. Section 19A.(3)(e)(i)(ii)(iii) supervise the functions of the Managing Committees subject to any general or special orders of the State Government, the provisions of this Act and any rules or regulations made thereunder, the Executive Committee shall have the power to-
(e)(i) supervise the functions of the managing committees,
(ii) approve or withhold approval of the constitutions of the managing committees,
(iii) approve special constitution of the managing committees,
(iv) supersede a managing committee and appoint Administrator or ad hoc committee to manage the affairs of an Institution.
31. Rule 8 of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 are also quoted hereinbelow:
8. Power of Executive Committee to approve and supersede Committee, to appoint Administrator or Ad hoc Committee and to grant special Constitution.(1) The constitution of a Committee shall be subject to the approval of the Executive Committee and the Executive Committee shall have the power to supersede a Committee that has, in its opinion, not been functioning properly and to appoint an Administrator or an Ad-hoc Committee to exercise the power and perform the functions of the Committee:
Provided that before superseding a Committee under this rule the Executive Committee shall have due regard to the report of the Director and shall afford a reasonable opportunity to the Committee to present its case before the Executive Committee.
(1a) The Executive Committee shall have also power to appoint an Administrator or Ad-hoc Committee in respect of any Institution where the term of the Committee has expired, but the Committee has not been reconstituted for any reason whatsoever:
(2) An Administrator or an Ad-hoc Committee appointed under Sub-rule (1) or Sub-rule (1a), shall exercise the power and perform the functions of the superseded Committee or of the Committee whose term has expired, as the case may be, ordinarily for one year and the Executive Committee may, by order, extend, in special circumstances, the term of office of the Administrators or the Adhoc Committee, as the case may be, by a further period, not exceeding six month at a time so, however, that the total period shall not exceed two years and the Administrator or the Ad-hoc Committee, as the case may be, shall take steps to reconstitute the Committee under these rules before the capiry of the term of office of the Administrator or the Ad-hoc Committee, as the case may be. In exceptional circumstances which are beyond the control of the Administrator or the Ad-hoc Committee, the term may, on the application of the Administrator or the Ad-hoc Committee, be extended by the Executive Committee for such period as the Executive Committee deems fit.
(3) Notwithstanding anything contained in these rules, the Executive Committee shall have the power to approve, on the application of any Institution or class of Institutions, of the special constitution of a Committee in favour of such Institution or class of Institutions and in approving the special constitution of a Committee, the Executive Committee shall pay due regard to the recommendations of the Director, if any. While granting special constitution in favour of an Institution or a class of Institutions, the Executive Committee shall ensure that representation of the members of the teaching and the non-teaching staff, guardians and of the teaching and the non-teaching staff, guardians and the members nominated by the Director or an officer authorized by him in this behalf, is made according to Clause (iii), Clause (v) and Clause (vi) of Rule 6:
Provided that if the Executive Committee is of opinion that a school enjoying special constitution has not been Functioning properly, the Executive Committee may, after due regard to the recommendations of the Director, if any, amend or withdraw such special constitution of a Committee and in that event, the Executive Committee may, by order, appoint an Administrator or an Ad-hoc Committee, as the case may be, to exercise the powers and perform the functions of the Committee for such period as may be specified in the order:
(4) The constitution of a Committee shall be forwarded to the Executive Committee through the Director whose observations thereon shall be considered by the Executive Committee before the Executive Committee approves of the Committee.
32. In view of the above statutory provisions the President has got emergency power to exercise all the powers of the Board or the Executive Committee.
33. Section 19A shows that the Executive Committee has got the power to supersede a Managing Committee. Now, when can the President exercise power under Section 28(2)? Obviously, that is in case of an emergency. If I take it for granted that the above quoted resolution of the Executive Committee is the decision of the Executive Committee to supersede the Managing Committee and that decision was conveyed by the President, then also it cannot be conveyed under Section 28(2) of the said Act and if I still accept that it can be done, then also I must look into the fact as to what is the resolution. The resolution is let there be a prompt decision and let an Administrator be appointed on the basis of the report of the inquiry team of the Board. In this regard apart from the decision of Panchanan Mondal and Ors. (supra) referred to by Mr. Panja, the learned senior counsel, I am to place reliance on another decision reported in 1967 Vol. (2) CLJ, 289 Sachinath Ghosh v. West Bengal Board of Secondary Education and Ors. in which our High Court has observed that a bare statement in the order that prompt action is required doesn't constitute an emergency justifying Presidential action under Section 28(2) of the Act. Incidentally it will be mentioned that powers under Section 28(2) are not intended to be substituted for a routine procedure. In the Division Bench Judgment in the case of Panchanan Mondal and Ors. (supra) it has been observed also that the President of the Board exercising his jurisdiction under Section 28(2) and Rule 8 of the Management Rules is required to comply conditions precedent viz. reports as regards mismanagement of the affairs of the school and on the compliance of the principle of natural justice. In my view, only by saying that as emergency existed the President exercised power under Section 28(2) is not sufficient inasmuch as emergency is to be established, proved and/or disclosed.
34. Newly, let me come to Rule 8(1) which clearly says about two conditions to be fulfilled before superseding a Managing Committee (i) due regard to be given to the report of the Director of School Education; and (ii) reasonable opportunity to the Committee to present its case before the Executive Committee. From the records of the Board or from the submissions of the learned Counsel for the Board or the Administrator it doesn't appear that there was any report submitted by the Director far less the question of giving due regard to such a report. Therefore, first condition is not fulfilled.
35. Now, let me come to the second condition. Opportunity is to be given to the Managing Committee to place its case before the Executive Committee. Now, if I take it for granted that the service by one Board's Officer (Sri Goutam Chakraborty) pasting the notice on the wall or by sending one notice through courier are taken into consideration then also it shows that the refusal mark even in the courier receipt has been signed by one B.K. Ganguly. It is not known who is this B.K. Ganguly who refused to accept the notice served on Sri Ajoy Ghosal of Ariadaha Kalachand High School. However, the Managing Committee didn't or couldn't present their case before the Executive Committee.
36. If I also take it for granted that the second condition was fulfilled inasmuch as opportunity was given but the School authority didn't avail the opportunity still then first part remains absent that is no report from Director was placed for consideration. It appears from the Executive Committee resolution produced by the Board that Executive Committee only said that on the basis of the team of Inquiry of the Board, hearing be given and Administrator be appointed. If the Executive Committee takes a decision for appointment of Administrator, then thereafter the question of giving hearing doesn't arise inasmuch as if the Executive Committee gives a hearing then also the same will be done in a closed mind inasmuch as from the resolution it shows that Administrator be appointed after giving hearing, that is decision has been taken and then the question of hearing comes.
37. From the impugned order if I accept that the President only conveyed the decision of the Executive Committee still then the President is not the proper person to convey a decision of the Executive Committee that too under Section 28(2) inasmuch as President is the ex-officio Chairman of the Executive Committee.
38. The answer to question Nos. 2 and 3 is clear enough to say that the decision was taken to supersede the Managing Committee and to appoint Administrator not in accordance with the rules. In that view of the matter, I set aside the impugned order dated 20/02/2004 being annexure 'P-26' to the writ petition accordingly.
39. The Administrator will hand over charge to the Secretary of the Managing Committee within a fortnight from the date of communication of this order.
40. The action taken by the Administrator, if any insofar as the holding of election is concerned the same is set aside if the schedule for election has been made during the period when this matter was reserved for Judgment and in that case the Managing Committee will immediately prepare the schedule for election and will hold the election accordingly. The Managing Committee, which was continuing prior to the appointment of the Administrator, will hold the election within a period of four months from the date of taking over charge from the Administrator as per the schedule prepared by the Administrator if the said election schedule has been prepared and/or published before the date on which the instant matter was made "reserved for Judgment" or as per new schedule as per the observations made above.
The writ petition is allowed on the above terms. There will be no order as to costs.
Urgent Xerox certified copy of this order, if applied for will be given to the parties as expeditiously as possible upon usual undertaking.
W.P. No. 5773(W) of 2004 with CAN 3515 of 2004 Later:
The learned Advocate for the respondent Board prays for stay of the operation of the Judgment and order.
Since the Judgment and order has been passed after giving exhaustive hearing to both the parties, the prayer for stay of the Judgment and order is refused.
Let xerox plain copies of the operative part of the Judgment be given to the learned Advocate of the parties on usual undertaking.