T. K. BASU, J. ( 1 ) THIS is an application by the Secretary and certain other members of the Managing Committee of Karanjali B. K. Institution in the Diamond Harbour Sub-Division in 24 Parganas. The school is an aided multipurpose School. ( 2 ) PRIOR to the issue of this Rule, a guardian of one of the students moved this Court under Article 226 of the Constitution of India for an appointment of an Administrator or an Ad hoc Committee by the West Bengal Board of Secondary Education on the ground that the life of the Managing Committee had expired. A Rule was issued by P. K. Banerjee, J. in CR Case No. 497 (W) of 1973. ( 3 ) THE aforesaid Civil Rule was disposed of on the 25th May, 1973 by Banerjee, J. with a direction to hold the election of the Managing Committee within three months. Banerjee, J. appointed two Advocates of this Court to conduct the election. The time was thereafter extended by another three months. The reconstitution of the Managing Committee was made on the 18th November, 1973. Thereafter the departmental nominee was placed on the 22nd June, 1974 and the Committee began to function. ( 4 ) THEREAFTER a notice was received by the individual members of the Managing Committee dated 5th December, 1975 from the West Bengal Board of Secondary Education (hereinafter referred to as the Board ). By the said notice, the members were asked to show cause why the Managing Committee should not be superseded in terms of Rule 8 of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided), 1969 (hereinafter referred to as the Rules), and seven days time was given to reply the notice. The Charges on which the Managing Committee was proposed to be superseded were as follows: -"1. One Sri Manabendra Nath Ghose (since dismissed from services) was appointed by the Secretary as an Assistant teacher of the school with effect from 2. 4. 69 and his appointment was approved by the MC on 10. 8. 69 though the Secretary and the Headmaster were fully aware of the fact that Sri M. Ghose was then in service in the Eastern Railway. Till 5. 5. 70. "2. During 1974-75 paddy field measuring 22. 56 acres of land (school property) were cultivated and the total levy of 71. 8. 69 though the Secretary and the Headmaster were fully aware of the fact that Sri M. Ghose was then in service in the Eastern Railway. Till 5. 5. 70. "2. During 1974-75 paddy field measuring 22. 56 acres of land (school property) were cultivated and the total levy of 71. 36 quintals of paddy was estimated by the Block Development Officer, Kulpi I. The price of 71. 36 quintals of paddy is Rs. 5350/- @ Rs. 75/- per quintal, but the Secretary deposited only Rs. 597-80 to the school funds and thereby misappropriated Rs. 4, 752-20. The Secretary has misappropriated about Rs. 30,000/- as the sale proceeds of paddy during the last 10 years of his regime as the Secretary of the successive MC of the School. 3. The milk cow, buffaloes and (School property) were sold out in 1971-72 without any reasonable grounds. 4. No tenders were invited in respect of selling of fish and no proper accounts have been maintained. 5. The Secretary used to keep Govt. grants with him for days and weeks together instead of disbursing the same. Teaching and non-teaching staffs are not allowed to put the dates under their respective signatures in the acquittance register to facilitate this malpractice. 6. One Sm. Malabika Ghose (relative of the Secretary) though not a bonafide student of the institution was allowed to appear at the H. S. Examination 1972 as a regular student of the School. 7. The Secretary was convicted in a Court Case No. 085 of 1964 (State v. Sachinath Ghose) u/s 6 (1) BH Act in the Court of the Magistrate (1st Class) Diamond Harbour and sentenced by the learned Court. " ( 5 ) REPLIES were sent to the above notice by nine members of the Managing Committee. The reply has been set out in Annexure 'd' to the petition. The main point stressed in the reply was that most of the charges contained in the notice to show cause related to a period when the present Managing Committee was not in existence. Consequently, it was contended that the New Committee could not be held responsible for those allegations. One paragraph of the reply is material and may be quoted. The main point stressed in the reply was that most of the charges contained in the notice to show cause related to a period when the present Managing Committee was not in existence. Consequently, it was contended that the New Committee could not be held responsible for those allegations. One paragraph of the reply is material and may be quoted. "it is further submitted that the grounds alleged are all extraneous and irrelevant and no allegation is made against the members of the Managing Committee as such of which the SI of Schools is the most important member. Further the allegations are very vague and the Managing Committee desires to be heard before the Board, if necessary through a lawyer. " ( 6 ) ADMITTEDLY there was no further communication from the Board and no hearing was given to any member of the Managing Committee. On the 22nd January, 1976 a communication was sent to the Headmaster of the School stating that the President of the Board has passed an order on the 17th January, 1976 superseding the Managing Committee and appointing an Ad-hoc Committee in its place. The order of the president which was set out in the communication is as follows: -"the DPI, West Bengal, had sent a report to the Board on the affairs of Karanjali B. K. Institution, P. O. Karanjali, 24-Parganas, with the recommendation for supersession of the Managing Committee of the School and appointment of an ad-hoc Committee in its place. On the basis of the said report the members of the Managing Committee of the School were directed to show cause why in view of the grounds stated in the notice it should not be deemed that the Managing Committee of the School had not been functioning properly and why the said Committee should not be superseded and an Administrator/ad-hoc Committee appointed in its place to exercise the powers and perform the duties of the Managing Committee. Nine members of the Managing Committee have submitted their explanations. No reply from other members of the Managing Committee has been received. Presumably they have no explanation to offer in the matter. Considering all the facts and circumstances including the explanations submitted by the members of the Committee I am decidedly of the opinion that the Managing Committee of the said school has not been functioning properly. Prompt action is thus called for. Presumably they have no explanation to offer in the matter. Considering all the facts and circumstances including the explanations submitted by the members of the Committee I am decidedly of the opinion that the Managing Committee of the said school has not been functioning properly. Prompt action is thus called for. In the emergency arising out of the situation, I, President, West Bengal Board of Secondary Education, in exercise of the powers vested in me under Section 28 (2) of the West Bengal Board of Secondary Education Act, 1963 read with Rule 8 of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided) 1969 as amended supersede the Managing Committee of Karanjali B. K. Institution 24-Parganas and appoint an Ad-hoc Committee as recommended by the DPI, West Bengal with the following personnel:" ( 7 ) IT is this order of supersession of the Managing Committee of the School, which is challenged before me in this application. ( 8 ) MR. Kashi Kanta Moitra, learned Advocate appearing on behalf of the petitioners challenged the order on various grounds. His first contention was that the impugned order was in violation of Rule 8 (1) of the Rules. My attention was drawn to the fact that not only was the show cause memo issued under Rule 8 (1) of the Rules but also the impugned order by the President of the Board has been passed under Section 28 (2) of the Act read with Rule 8 (1) of the Rules. There is one another aspect of this argument to which I shall advert later on but the present contention that we are concerned with is that Rule 8 (1) embodies statutorily the principles of natural justice which has been violated in the present case. There is one another aspect of this argument to which I shall advert later on but the present contention that we are concerned with is that Rule 8 (1) embodies statutorily the principles of natural justice which has been violated in the present case. In order to appreciate this contention it will be necessary to set out Rule 8 (1) of the Rules which are as follows: -"rule 8 - Power of Board to approve and supersede Committee: - (1) The constitution of a Committee shall be subject to the approval of the Board and the Board shall have the power to supersede a Committee that has, in its opinion, not been functioning properly and to appoint an Administrator to exercise the powers and perform the function of the Committee: provided that before superseding a Committee under this rule the Board 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 Board. " ( 9 ) THE main argument of Mr. Moitra centered around the crucial express in the Rule which have been quoted above is "reasonable opportunity to the Committee to present its case". Reference was made in this connection to several decisions. The first decision referred to was the case of (1) Khem Chand v. Union of India, reported in AIR 1958 opportunity within the meaning of Article 311 (2) of the Constitution of India. Reference was also made to the decision of (2) Fedco (P) Ltd. and another v. S. N. Bilgrami, reported in AIR 1960 Supreme Court 415. Paragraphs 8 and 9 of the Report deal with the question of reasonable opportunity to a licensee of being heard under the Imports (Control) Order 1955. ( 10 ) I have merely noticed the cases mentioned above briefly and do not propose to discuss them in detail. This is because it is well settled by now that what is a reasonable opportunity would depend on the facts of natural justice cannot be reduced to a rigid formula or a strait jacket. That being so, what has to be examined is, having regard to the facts and circumstances of the present case, was the Managing Committee of the School given a reasonable opportunity of stating its case before the impugned order of supersession was passed? The main grievance made by Mr. That being so, what has to be examined is, having regard to the facts and circumstances of the present case, was the Managing Committee of the School given a reasonable opportunity of stating its case before the impugned order of supersession was passed? The main grievance made by Mr. Moitra before this Court was that the Managing Committee should have been given a hearing by the Board in the present case. ( 11 ) MR. Noni Coomar Chakrabarti, learned Advocate appearing on behalf of the members of the Ad-hoc Committee appointed by the Board contended before me that personal hearing could not be claimed as a matter of right. He referred to various decisions on this point including the case of (3) Hariprasad Singh v. Commissioner of Income Tax, West Bengal and others, reported in AIR 1972 Calcutta 27 in support of this proposition. This aspect of the matter need not be probed further because it cannot be disputed, in my view, as a proposition of law that rules of natural justice do not require that a personal hearing must be given in every case. ( 12 ) THAT being the legal position, let us now turn to the fact of the present case. With regard to the charges which were leveled against the Managing Committee in the notice to show cause it was not disputed even by Mr. Chakrabarti or Mr. Bimal Kumar Datta, learned Advocate for the Board that except for charges 2, 4 and 5 the rest of the charges had nothing whatsoever to do with the present Managing Committee which was constituted in the year 1974. In other words, certain charges were being leveled against the Managing Committee which indisputably this committee had nothing to do with as they related to a period to its existence. ( 13 ) CHARGES No. 2 which I have setout above is to the effect that the Secretary sold a certain quantity of paddy which was the subject matter of levy by the Block Development Officer, Kulpi-I and misappropriated most of the sale proceeds. In the reply to the notice it was specifically stated that although in the draft levy roll 71. 30 quintals of paddy was sought to be levied from the school, on investigation, the Requiring Authority exempted the school from the levy altogether. In the reply to the notice it was specifically stated that although in the draft levy roll 71. 30 quintals of paddy was sought to be levied from the school, on investigation, the Requiring Authority exempted the school from the levy altogether. The school however voluntarily sold its entire products of paddy and the price was duly accounted for the school records. ( 14 ) MY attention was drawn in this connection to a document which is an extract from the Order Sheet of the Block Development Officer, Kulpi and which is Annexure 'e' to the petition. The order is in the following terms: - "extract FROM THE ORDER SHEET office of the Block Development Officer, Kulpi levy on Producer Year - 1974-75 secretary Karanjali B. K. Institution karanjali 24-Parganas date 30. 12. 74 as per Draft Levy Roll he was asked to sell 71. 36 quintals of paddy as levy against 22. 56 acres lands. The petitioner was exempted from Levy. The petitioner is willing to sell the entire produce voluntarily to the Government. Date 20. 1. 75 the entire Produce of the Institution concern was 5. 59 qutl. as stated by the petitioner. The petitioner appeared before me and found that he has actually sold the above quantity voluntarily to the Government. Sd/-Illegible 12. 12. 75 extn. Officer, Social Education kulpi Dev. Block 24-Parganas' seal ( 15 ) THIS document, which I was told on instructions by Mr. Moitra is signed by a member of the Ad-hoc Committee of the School appointed by the Board, clearly and convincingly substantiates the case of the Managing Committee that the School was exempted from the levy. Hence the charge of misappropriation as contained in charge no. 2 is palpably erroneous. If a hearing was granted to the Managing Committee as demanded by it, it would have been able to produce this document and perhaps convince the Board that this charge must fail. Chakraborti argued that the members of the Committee could have annexed this document to their reply. Undoubtedly they might have done so, but they were under no obligation to do so. Since they were demanding the hearing they might have thought that such hearing would be given where they could produce this document. Chakraborti argued that the members of the Committee could have annexed this document to their reply. Undoubtedly they might have done so, but they were under no obligation to do so. Since they were demanding the hearing they might have thought that such hearing would be given where they could produce this document. ( 16 ) IN this background, and without intending to lay down any general proposition as to the right of personal hearing, I am of the opinion that, in the facts and circumstances of this case, by reason of denial of a personal hearing and Managing Committee has been denied a reasonable opportunity of stating its case. That being so, the impugned order must be held to be in contravention of Rule 8 (1) of the Rules. This contention on behalf of the petitioner therefore succeeds. ( 17 ) ANOTHER aspect of the same question of reasonable opportunity of stating its case was canvassed before me and may be briefly dealt with. It was pointed out that the opening sentence of the order of the President of the Board dated the 17th January, 1976 which is impugned in the present case, mentioned that the Director of Public Instruction, West Bengal, had sent a Report to the Board on the affairs of the School recommending the supersession of the Managing Committee and it is on the basis of this recommendation that the impugned order was passed. Admittedly, no copy of this report of the DPI, West Bengal, was furnished to the members of the Committee at any stage. Mr. Moitra submitted that this amounted to denial of a reasonable opportunity to the Committee of stating its case. ( 18 ) IN my view, this contention of Mr. Moitra should also succeed. The order of supersession shows ex facie that the President of the Board was clearly relying on the report of the D. P. I. , West Bengal. The members of the Managing Committee were at no stage given any opportunity of looking into the contents of the report nor of rebutting the same. It is well settled that if any material is relied on behind the back of a party in arriving at a finding such a procedure would be contrary to the rules of natural justice, which are embodied in the Proviso to Rule 8 (1) of the Rules. It is well settled that if any material is relied on behind the back of a party in arriving at a finding such a procedure would be contrary to the rules of natural justice, which are embodied in the Proviso to Rule 8 (1) of the Rules. That being so, it must be held that the impugned order is in contravention of Rule 8 (1) of the Rules on this ground also. ( 19 ) THE next branch of Mr. Moitra's argument centered around the fact that the President of the Board passed the impugned order under Section 28 (2) of the Act read with Rule 8 of the Rules. Section 28 (2) of the Act reads as follows:"the President may, in any emergency, exercise any of the powers of the Board provided however that he shall not act contrary to any decision of the Board, and shall, as soon thereafter as may be, report to the Board the action taken by him together with reasons therefore. " ( 20 ) THIS Section 28 (2) clearly empowers the President to exercise all the powers of the Board subject to certain conditions. The first condition is that there must be an emergency. The second condition is that the President must not act contrary to any decision of the Board. The third condition is that he must report to the Board as soon as possible after the action taken. The fourth condition is that he must state the reasons in his report as to why he exercised the powers of the Board under Section 28 (2) of the Act. ( 21 ) IT was submitted by Mr. Moitra that none of the conditions with which the powers of the President under Section 28 (2) of the Act are hedged, has been fulfilled in the present case. First of all it was submitted that there was no emergency in the present case justifying supersession by the President and not by the Board. It is curious to note that the notice to show cause, part of which I have set out above, was sent by the Secretary of the Board and not by the President. First of all it was submitted that there was no emergency in the present case justifying supersession by the President and not by the Board. It is curious to note that the notice to show cause, part of which I have set out above, was sent by the Secretary of the Board and not by the President. Undoubtedly, when there is an emergency, the President can, by virtue of Section 28 (2) of the Act exercise the powers vested in the Board under Rule 8 of the Rules which would include the exercise of the entire gamut of powers stating from the issue of the notice to show cause and ending with the passing of the final order. At the time of the hearing, the entire records of the Board with regard to the impugned order of supersession were produced before me. Mr. Bimal Dutt, learned Advocate appearing on behalf of the Board, was entirely unable to show anything from the records as to why this curious dicotomy of the Secretary of the Board issuing the notice to show cause and the President of the Board passing the order of supersession was introduced in the present case. Mr. Moitra justifiably commented that since the notice to show cause was issued by the Board and not by the President, it is to be presumed that when the notice was issued on the 5th December, 1975 thee was no emergency justifying action by the President under Section 28 (2) of the Act. It was submitted that between 5th December, 1975 when the notice was issued and the 17th January, 1976, when the order of supersession was passed by the President nothing happened which could be said to be in the nature of an emergency. As I have said the records of the Board are entirely silent on this aspect of the matter. There is nothing in the record to show as to at what stage the President decided to take up the matter and passed the impugned order. There was no record in the file as to the existence of an emergency with regard to the affairs of this School. There is nothing in the record to show as to at what stage the President decided to take up the matter and passed the impugned order. There was no record in the file as to the existence of an emergency with regard to the affairs of this School. It may be also noted that there is nothing in the record to show that the President had sent any report to the Board subsequent to the order of supersession or had recorded any reasons for his action as required by Section 28 (2) of the Act. ( 22 ) MY attention was drawn in this connection to an unreported decision of this Court in the case of (4) Sarat Chandra Mal and others v. The President West Bengal Board of Secondary Education (C. R. No. 5629 (w) of 1972) in which the judgment was delivered by A. K. Sen, J. on the 25th September, 1973. Reference was made to a portion of the judgment which is set out herein below:"so far as the last point raised by Mr. Mukherjee is concerned it must be said that on the facts of the present case the President could not have bonafide relied on Section 28 (2) of the Act and invoke his emergency powers. No case of emergency had been made out. The question of approval was pending with the Board since end of 1970. It has rightly been pointed out by Mr. Mukherjee that between December 20, 1971 and June 13, 1972 the Board itself had met thrice in February, March and May 1972 and as such there would have been no difficulty in placing the matter before the Board. To invoke the power under Section 28 (2) as has been done was to convert the said provision as a routine procedure not intended by the legislature. I am in an agreement with Mr. Mukherjee that on the facts of the present case exercise of powers under Section 28 (2) was not bonafide. " ( 23 ) LEARNED Advocates on behalf of the Board and of the Ad-hoc Committee relied on a sentence in the order of supersession which says "prompt action is thus called for" and a part of sentence which says "in the emergency arising out of the situation". " ( 23 ) LEARNED Advocates on behalf of the Board and of the Ad-hoc Committee relied on a sentence in the order of supersession which says "prompt action is thus called for" and a part of sentence which says "in the emergency arising out of the situation". ( 24 ) IN my opinion, a mere statement that prompt action is required does not constitute an emergency justifying action by the President under Section 28 (2) of the Act. It must be remembered that one of the charges was that the Secretary has misappropriated about Rs. 30,000/- as the sale proceeds of paddy during the last ten years. If such an action of the Secretary, assuming it is true, constitutes mismanagement justifying supersession then it has been going on for ten years. In that context, it is extremely difficult if not impossible to say what facts supervened to convert the situation into one of emergency justifying action, by the President. As I have already said, the records are conspicuous by their silence on this aspect of the matter. I am in respectful agreement with the observations of A. K. Sen, J. in the unreported case mentioned above that this power under Section 28 (2) of the Act is not intended to be a substitute for the routine procedure. This contention on behalf of the petitioner therefore that the neither conditions precedent for the exercise of power under Section 28 (2) of the Act nor the conditions subsequent thereto have been fulfilled in the present case must be accepted. Consequently, the impugned order must be held to be invalid on this ground also. ( 25 ) BEFORE I leave this aspect of the matter I must point out that although a specific allegation has been made in the petition that there was no emergency justifying the action by the President of the Board, there is no affidavit by the President of the Board dealing with that allegation. Even assuming for the sake of argument, that the satisfaction of the President of the Board regarding the emergency may be a matter of subjective satisfaction, there is nothing before me to show that the President was so satisfied apart from certain averments of an Assistant Secretary of the Board in his affidavit. ( 26 ) MY attention was drawn in this connection by Mr. ( 26 ) MY attention was drawn in this connection by Mr. Chakrabarti to a decision of this Court in the case of (5) Lilabati Kanjilal v. The Administrator, Nasra Girls' High School and others reported in 71 CWN 216 and another decision in the case of (6) Adwaitya Kr. Maity and others v. The President, West Bengal Board of Secondary Education and others reported in 71 CWN 396. In the later case D. Basu, J. held that there is no duty of hearing or any quasi-judicial duty cast on the Board in case of supersession. But as pointed out by Mr. Moitra both the above cases turned on a construction of a Rule 6 of the Old Rules relating to supersession which did not contain the expression "reasonable opportunity of stating its case. " These cases are therefore clearly distinguishable on this ground. ( 27 ) THE next argument of Mr. Moitra was that the impugned order is bad as it did not give any reason in support thereof. All that the order says is that "the Managing Committee of the said school has not been functioning properly". According to Mr. Moitra, this is merely a recital of the language of Rule 8 and does not constitute the reason for the order. In my view, this argument is also sound and should succeed. Apart from the fact that the recital that the Managing Committee of the School is not functioning properly is a mere repetition of what is contained in Rule 8, it can at best called a conclusion or inference. What are the grounds on the basis of which this conclusion or inference was arrived at by the President is not to be found either in the order or in the records. That being so, the order must be held to be bad on that ground also. ( 28 ) THAT disposes of all the contentions raised in the instant case. ( 29 ) IN the result, this application succeeds and the Rule is made absolute. There will be a Writ in the nature of Certiorari quashing the impugned order of supersession dated 17th January, 1975 which is contained in the communication which is annexure "f" to the petition and a Writ in the nature of Mandamus directing the respondents to forbear from giving effect thereto in any manner whatsoever. There will be a Writ in the nature of Certiorari quashing the impugned order of supersession dated 17th January, 1975 which is contained in the communication which is annexure "f" to the petition and a Writ in the nature of Mandamus directing the respondents to forbear from giving effect thereto in any manner whatsoever. The respondents will however be at liberty to proceed according to law. ( 30 ) THERE will be no order as to costs. Application succeeds.