Kanai Bhowmick v. President Board Of Secondary Education, West Bengal
1983-06-21
B.C.RAY
body1983
DigiLaw.ai
JUDGMENT B. G. RAY, J. 1. THIS Rule is directed against an order of supersession passed by the executive committee of the West Bengal Board of Secondary Education under clauses 3(e) (iv) of section 19A of the West Bengal Board of Secondary 'Education Act, 1963 as amended in 1979 at its 13th meeting held on 28.5.82 superseding the managing committee of Naikuri Dharanidhar Balika Vidyalaya, Midnapore and appointing the Sub Inspector of Schools, Tamluk South Circle to act as Administrator of the said school 1 in its place with immediate effect for a period of six months or until further orders whichever is earlier challenging the same on the ground that the order of supersession is bad as it has been made in utter violation of the principles of natural justice and the appointment of Administrator that has been made is also wholly bad and unwarranted. 2. OUT of the 15 members of the managing committee nine members of the managing committee moved the instant writ application before this Court and obtained a Rule and an interim order on 3.9.82. The interim order was to the effect that the respondents were restrained from giving effect or further effect to the order dated 11.8.82 mentioned in annexure E to the petition. Respondent no. 6 was also restrained from taking charge of the office of the Administrator of the school until further orders. On 6.6.82 this interim order however was varied after hearing the learned Advocates for both sides to the extent that the Administrator already appointed having taken charge of the office would continue to run the administration of the school and would take immediate steps for disbursement of the emoluments of the members of the teaching and non teaching staff of the school. This variation of the interim order was made however subject to- the decision of the Rule. The petitioner has pleaded in the petition that a show cause notice which was received by the headmistress of the school i.e. respondent no. 7 who had forwarded the notice to show cause why an order of supersession should not be made issued by the Sec. of the West Bengal Board of Secondary Education to the Secretary of the managing committee of the school i.e. the petitioner no. 1.
7 who had forwarded the notice to show cause why an order of supersession should not be made issued by the Sec. of the West Bengal Board of Secondary Education to the Secretary of the managing committee of the school i.e. the petitioner no. 1. It has also been stated that the Headmistress was in collusion with the Board and in fact the Secretary of the Board, while the petitioner, after submission of the show cause petition pursuant to the show cause notice met him at his request, he persuaded the petitioner to withdraw the application that was filed and Rule obtained from this Court against the accord of approval to the appointment of respondent no. 7 Sm. Kabita Mitra as headmistress of the aforesaid institution by the Director of Secondary Education, Govt. of West Bengal. It has also been pleaded that the order of supersession has been made without giving the petitioners copies of the reports referred to in the said order of spersession and as such the petitioners did not get an effective opportunity of hearing and showing cause against the proposed order of supersession. It has been further stated that the order of supersession that has been made by the executive committee of the Board is also bad inasmuch as one of the grounds stated therein was that the headmistress of the Institution did not attend the meetings held by the managing committee though it was well known that against the approval accorded to the appointment of respondent no. 7 as headmistress a Rule was obtained by the members of the managing committee of the school from this Court and this was pending for decision in this Court. On all these grounds the instant writ application was moved before this Court and a Rule and interim order as stated hereinbefore were obtained from this Court. During the pendency of the Rule an application was filed on behalf of the petitioners bringing to the notice of the Court that an order has been made by the President of the Board u/s 28(2) of the W. B. Board of Secondary Education Act, 1963 whereby the term of the Administrator was extended for a period till sometime in July 1983 and this order was made on 23.2.83 even though according to the petitioners the original term of six months expired on 1012.83.
It has therefore been prayed that an interim order be made restraining, the respondents from giving effect to this order extending the term of the Administrator made by the President of the West Bengal Board of Secondary Education on 23.2.83. An affidavit in opposition has been filed on behalf of respondent no. 7 but no affidavit in opposition has been filed on behalf of the Board on a reply to the affidavit in opposition filed by respondent no 7 has also been filed by the petitioner. 3. MR. Bhunia appearing on behalf of the petitioner has submitted before this Court that the impugned order of supersession made by the executive committee at its 13th meeting is wholly illegal and bad and it is liable to be quashed on the ground that it was made in utter violation of the Rules of audi alteram partem. It has been submitted that no copy of the reports referred to in the said order of supersession has been served or handed over to the petitioners and as such they were deprived of the opportunity of making an effective representation against the said reports in consideration of which the aforesaid order of supersession had been made by the executive committee of the Board in support of this submission some decisions have been cited at the Bar. It has been next submitted by MR. Bhunia that the grounds mentioned in the show cause notice particularly ground- no. 2 can not be proper grounds for making an order of supersession of the managing committee inasmuch as against the order according approval to the appointment of respondent no. 7, Kabita Mitra, headmistress of the school, the petitioners have already assailed the same in an appropriate writ application before this court and the same is pending for decision before this court. It has been submitted in this connection that the order of supersession has been made at the instance of the headmistress (respondent no. 7) inasmuch as the notice showing cause was not sent directly to the petitioner no. 1 who is the Secretary of the instant Institution but it was sent through the headmistress who forwarded the same with her letter to the Secretary of the managing committee of the school and in her letter has been stated also that the representation has to be submitted to a particular officer of the Board.
1 who is the Secretary of the instant Institution but it was sent through the headmistress who forwarded the same with her letter to the Secretary of the managing committee of the school and in her letter has been stated also that the representation has to be submitted to a particular officer of the Board. It has been also submitted that sec. 19A does net provide for extension of the term of the Administrator unlike the provisions made in rule 8 of the Rules for management of non government Institutions (aided and unaided) 1969 as amended upto date. It has therefore been submitted that the subsequent order dated 23.2.83 made by the President of the Board in exercise of his emergency power u/s 28(2) of the West Bengal Board of Secondary Education Act, 1963 is wholly illegal and unwarranted in extending the term of the office of the Administrator for a further period specially when the original term of the Administrator expired on 10.2.83. It has been further submitted by MR. Bhunia that since 'the order extending the term of office of the Administrator was made after expiry of the original -period of the Administrator the order shall be deemed to be a new order and as such it has to conform to the procedure which has been lad down while passing or making the original order of supersession viz. giving an opportunity of showing cause against the proposed action i.e. supersession of the managing committee and as this has not been done this order is bad. In support of this submission a decision of this Court has been cited at the Bar. It has been lastly submitted that the original order of supersession made by the executive committee of the Board having lost its force by efflux of time on 10.2.83 the life of the managing committee revived and as such the managing committee should be allowed to continue its term which will expire on 27.6.83. 4. THE first point that falls for consideration is whether there has been a violation of the principle of natural justice in making the order of. supersession by the executive committee of the Board. It appears from the averments made in para 23 of the writ application that on or about 16 to 18 August 1981 the petitioners received a show cause notice issued by the respondent no. 2 served by respondent no.
supersession by the executive committee of the Board. It appears from the averments made in para 23 of the writ application that on or about 16 to 18 August 1981 the petitioners received a show cause notice issued by the respondent no. 2 served by respondent no. 7 asking the petitioners to submit their reply to the show cause notice before one Sri Ashoke Bose, Deputy Secretary (General) West Bengal Board of Secondary Education. This show cause notice has been annexed as annexure E to the writ application, it has been further stated in para 25 of the writ application that on 19.8.81 reply to the said show cause notice was submitted by the petitioner no. 1 as Secretary of the managing committee denying the charges. On 11.12.81 it has been stated in para 26 that Shri Ashoke Bose directed the petitioner no. 1 who is the secretary of the managing committee to call at his office for a discussion on the question relating to the management of the school it has been ." further stated therein that the petitioner duly appeared before the President and found that Sm. Kabita Mitra along with the secretary Secondary Teachers and Employees Association and two other members of the said organization had been talking with the Secretary. The President asked the petitioners to accommodate respondent no. 7 and to withdraw the case whereby the approval accorded to her appointment as headmistress was challenged. It has been further pleaded that the petitioners expressed their inability to accept the said request made by the President. Thereafter the impugned order has been made superseding the managing committee of the school in question. It therefore appears from this averment that the petitioners were duly served with the show cause notice intimating them the charges for which the members of the managing committee were asked to show cause and cause was duly shown by these petitioners. Nowhere it has been pleaded that the petitioners did not get any opportunity of hearing nor there is any material before this court to show that the petitioners ever asked for the reports referred to in the order of supersession of the managing committee of the school. In these circumstances I am unable to hold that the petitioner was denied a reasonable opportunity of being heard before passing the impugned order of supersession of the managing committee.
In these circumstances I am unable to hold that the petitioner was denied a reasonable opportunity of being heard before passing the impugned order of supersession of the managing committee. In the decision that has been cited at the Bar reported in AIR 1983 SC. 75 (National Tex tiles Workers Union Vs. P. P. Ramkrishnan) at page 89 it has been held by Chinappa Reddy J. who agreed with the learned Judge Bhagabati J. delivering the judgment that there was a peculiar and surprising misconception of natural justice in some quarters, that is, exclusively a principle of administrative law. But it was not so. THE principle of natural justice is universal principle and therefore a rule of administrative law. It is that part of the judicial procedure which Has been imported into the administrative process because of its universality. Undoubtedly now it Is well settled by several decisions of the Supreme Court as well as of this Court that the principles of audi alteram partem applies not only to quasi judicial orders but also to the administrative orders prejudicially affecting the rights or interest of the parties concerned and it has been also held that the principle of natural justice has to be followed even though the statute does not expressly provide for it Of course it has been held by Hegde J. in the case of A. K. Kripak reported in AIR. 1970 S. C. page 150 that principles of natural justice cannot be put in a straight jacket; it varies with the facts and circumstances of each case. THE other decision cited is reported in 1981(2) Calcutta High Court Notes page 128. This case deals with the propriety of the order of supersession of the managing committee on an appointment of Administrator of a primary school and in interpreting rule 7 of the Rules framed under the Primary Education Act it has been observed by Basak, J. that right to hold office is a civil right and if that right is sought to be taken by an order an opportunity of showing cause against the proposed order has to be given in order to comply with the principles of natural justice.
I have already held hereinbefore that in the instant case the petitioners have been duly given opportunity of showing cause as to why steps would not be taken for supersession of the managing committee and the petitioners duly replied to the same. In this background I am unable to hold that there has not been a compliance with the principles of natural justice. Therefore, the submission made on this account by the learned Advocate for the petitioners cannot be sustained As regards the second contention that section 19A which has been introduced in the statute book by West Bengal Board of Secondary Education (Amendment) Act 1979 on November 2,1979. Under this amended provisions executive committee of the Board has been conferred certain powers to exercise one of such powers as provided in sub-sec. 3 clause (iv) is as follows : "Supersede a managing committee and appoint Administrator or Ad hoc committee to manage the affairs of the Institution." It has been submitted referring to this provisions firstly that this power of the executive committee cannot be exercised without framing bye laws as provided in sub-sections 5 and 6 of the said Act. It has been further submitted in this connection that as no bye law has been framed as the executive committee of the Board of Secondary Education is not competent to make an order superseding the managing committee of a school and the impugned order assailed in this writ application is therefore liable to be quashed and set aside on this ground. This submission of Mr. Bhunia, learned Advocate appearing on behalf of the petitioner, is, in my considered opinion, cannot be upheld inasmuch as it does not show from the specific provision of sub-sections 5 and 6 of section 19A that the powers provided in sub-sec. 3 clause (iv) of the aforesaid section cannot be exercised unless and until bye laws have been framed by the executive committee and approved by the State Government. Therefore, the non framing of bye laws cannot render the exercise of the power under subsection 3 clause (iv) of section 19A for the making or order superseding a managing committee of the school illegal and/or bad or void. This submission therefore in my; opinion cannot be sustained. 5.
Therefore, the non framing of bye laws cannot render the exercise of the power under subsection 3 clause (iv) of section 19A for the making or order superseding a managing committee of the school illegal and/or bad or void. This submission therefore in my; opinion cannot be sustained. 5. IT has been submitted that the term of the Administrator in the original order made by the executive committee at its 13th meeting was for a period of six months, and that period ended on 10.2.83. In the absence of any power expressly given or provided, for in section 19A neither the executive, committee of the Board nor the president in exercise of his emergency power u/s 28(2) of the West Bengal Board of Secondary Education Act, 1963 has got any authority to make an order extending the tenure of office of the Administrator after the expiry of his term. In support of this submission Mr. Bhunia has drawn the attention of this Court to rule 8 of the Rules for management of recognised non government Institutions (Aided and unaided) 1969 wherein in sub rule (2) IT has been specifically provided that the Board, can exercise its power of supersession of managing committee and appointment of Administrator for one year and this period, can be extended by the Board in special circumstances by a further period not exceeding six months at a time and also try order further extending the period but the total period shall not exceed under any circumstances two years. On close scrutiny of the provision of the aforesaid rule 8 as well as the provision u/s 19A of the Act I am unable to hold that the executive committee of the Board is not competent to extent the tenure of office of the Administrator or ad hoc committee as the case may be beyond the period which was mentioned in the original order of supersession made by the executive committee of the Board. Sec. 19A(3)(iv) does not expressly provide or enjoin on the executive committee. that an Administrator can be appointed by it only for a limited period as has been provided for in rule 8(3} of the aforesaid Rules framed under the said Act. The golden rule of interpretation is that the words as used in the statute have to be given their natural meaning.
that an Administrator can be appointed by it only for a limited period as has been provided for in rule 8(3} of the aforesaid Rules framed under the said Act. The golden rule of interpretation is that the words as used in the statute have to be given their natural meaning. If after giving such natural meaning there is an ambiguity or incongruity then and then only it has to be interpreted in such a way that it works in harmony with other provisions of the statute. IT is also well settled that rules framed pursuant to the provisions of the statute cannot control or modify express provisions of the statute simply because unlike rule 8(3) it has not been provided for that executive committee may appoint an ad hoc committee or Administrator for a certain period and can extend the period upto certain time it cannot be concluded or cannot be inferred on a consideration of the provisions of rule 8(3) that the tenure of office of the Administrator cannot be extended beyond what was provided In the first order of supersession of the managing committee. Therefore I am constrained to hold that this submission in my opinion cannot be sustained. IT is for the executive committee of the Board to decide in the facts and circumstances of the case concerned whether to extend the tenure of the Administrator or ad hoc committee appointed by it after superseding the managing committee of the school. 6. THE next question vitally connected with this that requires to be considered is whether the subsequent order made by the President of the Board on 23.2.83 extending the term of office of the Administrator for a further period till some time in July 1983 can be made validly in exercise of the provisions u/s 28(2) of the West Bengal Board of Secondary Education Act, 1963. Section 28(2) of the said Act expressly provides that the President may in any emergency exercise any of the powers of the Board Or of the executive committee.
Section 28(2) of the said Act expressly provides that the President may in any emergency exercise any of the powers of the Board Or of the executive committee. This clearly shows that if there is an emergency the President has been empowered by this statute to exercise the powers of the executive committee and this has been provided for as the legislators have foreseen that there may be an emergent situation where it is not possible to convene a meeting of the executive committee in order to meet such cases this power has been provided for in sub-sec. 2 of sec. 28 of the said Act. therefore the President if he is satisfied that such emergency exists has undoubtedly got the authority to exercise the powers of the executive committee, and he can extend in exercise of such powers the tenure of office of the Administrator appointed by the executive committee on superseding the managing committee of a school as In the present case. It has been urged on behalf of the petitioners that after the original order of supersession has spent its force by efflux of time on 10.2.83 the order that has been made by the President is to be treated as a new order and as such before, making this order the principles of natural justice and also the entire procedure making an order of supersession has to be complied with. As this has not been done in the present case so this order extending the tenure of the Administrator Is illegal and as such the same cannot be given effect to. This submission however cannot be sustained because in this particular case there were certain specific charges made in the notice asking the petitioners to show cause why the order of supersession of the; managing committee will not be made and alter hearing the members of the managing committee the impugned order of supersession was originally made by the executive committee at its 13th meeting, The Administrator was appointed and he took charge of the administration of the school. The managing committee which was reconstituted on 29.6.80 will come to an end after completion of its three years term in accordance with the provisions of rule 25 of the Rules for management of recognised non govt. Institutions ( aided and unaided ) 1969 on 27.6 83.
The managing committee which was reconstituted on 29.6.80 will come to an end after completion of its three years term in accordance with the provisions of rule 25 of the Rules for management of recognised non govt. Institutions ( aided and unaided ) 1969 on 27.6 83. The allegations which let the executive committee after considering the cause shown by the petitioner i.e. the members of the managing committee to supersede the managing committee remained and the situation has not changed or altered. In this background I am unable to hold that the order dated 23.2.83 which has been made by the President u/s 28(2) of the said Act is not in accordance with the provisions of the Act. Moreover the sub missions that again an opportunity of hearing had to be given to the petitioner before making the order is not in my opinion sustainable because as I have said already that the causes that weighed with the executive committee in superseding the managing committee and appointing the Administrator remained there. Therefore, in these circumstances it cannot be said that the order extending the term of the Administrator has been made in contravention of the provisions of sec. 28(2) or in other words there has been no compliance with the principles of natural justice. 7. THE decision that has been cited at the Bar reported in 1976(2) CLJ 289 does not apply to the facts of this case inasmuch as in that case the original order of super session of the managing committee passed by the President of the Board in exercise of his emergency power u/s 28(2) of the Act was challenged on the ground that the condition precedent to the exercise of such power was non existent viz. three was no emergency, the President did not place his decision before the Board and thirdly the President acted contrary to any decision of the Board and fourthly he had not stated neasons in his report as to why he exercised the powers of the Board under that section of the Act.
three was no emergency, the President did not place his decision before the Board and thirdly the President acted contrary to any decision of the Board and fourthly he had not stated neasons in his report as to why he exercised the powers of the Board under that section of the Act. In the present case However the question is not with regard to the passing of the initial order of supersession u/s 28(2) of the Act as I have stated already hereinbefore that the initial order of supersession of the managing committee and appointment of the Administrator was made by the executive committee of the Board in exercise of its power u/s 19A(3) (iv) of the [said Act. THE appointment of the Administrator was for a certain period and after the expiry of that period the order dt. 23.2.83 was made by the President of the Board inasmuch as an order was thought necessary in consideration of the emergency that the administration of the school will come to a stand still, therefore this decision, in my considered opinion, is not applicable to the facts of the present case. 8. IT is also very important in this connection to take into consideration the most vital fact that the term of the managing committee will expire on 27.6.83 in accordance with the provisions of rule 12 of the Rules framed under the Act. IT is now well settled by several decisions of this Court that after the expiry of the term of the managing committee the managing committee has no legal status to continue even for a day more. Therefore considering this aspect also it is not deemed just and proper and equitable interfere at this stage with the order made by the President of the Board extending the term of office of the Administrator by order dated 23.2.83. In the premises aforesaid as the submissions advanced on behalf of the petitioners have failed this Rule fails and it is hereby discharged. There will however be no order as to costs. All interim orders are vacated. Rule discharged.