Calcutta High Court (Appellete Side)
Saikat Bandopadhyay vs Jirat Colony High School & Ors on 10 June, 2014
Author: Debasish Kargupta
Bench: Debasish Kargupta
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10.06.2014.
S.D.
W.P. No. 17064 (W) of 2013
Saikat Bandopadhyay
Versus
Jirat Colony High School & Ors.
Mr. Sahasrangshu Bhattacharjee
Mr. S. Bhattacharjee ... For the Petitioner.
Mr. R.N.Dutta
Mrs. Sudipa Roy ... For the Respondents No.1&2
Mr. K. Mondal
Md. H. Zaman ... For the State
None appears on behalf of the respondent nos. 5 and 6 in
spite of service of copies of this writ application upon them. Let
the affidavit of service be kept on record.
This writ petition is directed against an order passed by
the respondent no. 5, the West Bengal Board of Secondary
Education under its memo dated May 29, 2013. By virtue of the
impugned order the West Bengal Board of Secondary Education
approved the order of suspension passed against the petitioner
in connection with his service as Headmaster of Jirat Colony
High School, District - Hooghly.
According to the petitioner the Managing Committee of
Non‐Government aided educational institution is the authority
to pass an order of suspension in respect of a teaching and non‐
teaching staff of the institution concerned. But in this case the
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order of suspension was passed by the Secretary of the
Managing Committee of the school under reference on January
02, 2013. A resolution was taken in the meeting of the Managing
Committee of school under reference on January 03, 2013
approving the above order of suspension.
According to the petitioner, a written objection was filed
before the respondent board challenging the validity of the
order of suspension under reference on the ground that in
accordance with provision of clause (viia) of sub‐rule 9 Rule 28
of the Management of Recognized Non‐Government Institutions
(Aided & Unaided) Rules, 1969 (hereinafter referred to as the
"said Rules of 1969") the Managing Committee was the
authority to pass the aforesaid order of suspension. But in this
case the Secretary of the Managing Committee passed the order
of suspension. According to the petitioner, the above objection
was not considered by the respondent board while approving
the order of suspension.
It is submitted by Mr. Dutta, appearing on behalf of the
respondent school that by a resolution adopted in the meeting of
the Managing Committee on September 22, 2012 the Secretary of
the Managing Committee was authorized to discharge the
function of the disciplinary authority of the school. The
Secretary passed the order of suspension on the basis of such
delegation of power. According to Mr. Dutta, the above order
was approved in the meeting of the Managing Committee on
January 03, 2013.
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I have heard the learned counsel appearing for the
respective parties as also after considering the facts and
circumstances of this case on the basis of the materials available
on record I find that a point of law involved in the matter with
regard to the propriety of the order passed by the Secretary of
the Managing Committee of the school suspending the
petitioner is to be decided in this writ application.
In that view of the matter this writ application is taken up
for final hearing.
It is an admitted fact that by virtue of a resolution dated
September 22, 2012 the function of the disciplinary authority
was delegated to the Managing Committee of the school
concerned. For adjudication of the propriety of that delegation
of power the provisions of clause (viia) of sub‐rule 9 of Rule 28
of the said rules, 1969 are set out below:‐
"(viia) to suspend a teacher or an employee where such
suspension is in the interest of the Institution, pending drawal
of proceedings against the person concerned within ninety
days from the date of suspension and during the period of
suspension, the person concerned shall be paid pay and
allowances equal to fifty percent of the pay and allowances
drawn by him immediately before such suspension. Such
steps shall be referred to the Board within seven days of such
action for approval. The person affected by the decision of the
Committee may, however, may his/her representation to the
Board. The order of suspension shall automatically stand
withdrawn in case proceedings are not drawn within a period
of ninety days, provided that in exceptional circumstances this
time‐limit may be waived by the Board after due
consideration of the facts of the case, but under no
circumstances the time‐limit shall be wiaved beyond the limit
of one year:
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Provided that where the period of suspension exceeds
90 days, the amount of subsistence allowance shall be
increased after the expiry of ninety days to seventy‐five
percent of the pay and allowances drawn immediately before
such suspension;
Provided further that the person concerned shall not be
entitled to any subsistence allowance if he/she accepts
employment during the period of suspension elsewhere."
Upon consideration of the objection raised by the
petitioner before the respondent board with regard to the
propriety of the order of suspension I find that the power of the
Secretary of the Managing Committee of the school in question
was challenged by the petitioner before the respondent board at
the time of consideration of the proposal for approval of the
order of suspension of the petitioner. Neither it is evident from
the impugned order nor any material is available on record to
show that that the above objection of the petitioner was
considered by the respondent‐board while passing the
impugned order. It is the settled principles of law that in
accordance of judicial review it is open for a Court sitting in writ
jurisdiction to examine whether relevant considerations were
ignored of arriving at a decision or the irrelevant consideration
is taken into account for arriving at such decision. Reference
may be made to the decision of State of U.P. Vs. Maharaja
Dharmander Prasad Singh etc. reported in AIR 1989 SC 997 and
the relevant portions of the above decision are set out below:‐
"28. ............................................................
...........................................................................
........
When the issue raised in judicial review is whether a decision is vitiated by taking into account 5 irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision‐making process includes examination, as a matter of law, of the relevance of the factors. In the present case, it is, however, not necessary to go into the merits and relevance of the grounds having regard to the view we propose to take on the point on natural justice.
............................................................ ........................................................................... ....."
In view of the settled principles of law the impugned order passed by the respondent board cannot be sustained in law due to the admitted fact that the objection of the petitioner with regard to the authority of the Secretary of the Managing Committee of the school under reference was not considered by the respondent‐board.
Therefore, the impugned order is quashed and set aside. The respondent no. 5 is directed to take a decision afresh with regard to the proposal of the approval of the order of suspension of the petitioner by passing a reasoned order in the light of the observation made hereinabove within a period of six weeks from the date of communication of this order.
It is further made clear that this Court has not entered into the merits of the objection raised by the petitioner before the respondent‐board and it will be open for the respondent no. 5 to arrive at a decision with regard to the above objection within the time mentioned hereinabove after giving an 6 opportunity of hearing to the petitioner and the representative of all concerned.
( Debasish Kar Gupta, J. )