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2007 DIGILAW 469 (CAL)

Abdul Kalam Mallik v. STATE OF WEST BENGAL

2007-06-28

PRATAP KUMAR RAY, TAPAN MUKHERJEE

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JUDGMENT 1. Heard learned Advocates appearing for the parties. 2. From the very nature of the stay application it appears that the entire matter on merit is required to be heard. Hence the appeal is taken up for hearing treating the same as on day's list. In deciding the appeal it appears that the appeal arose on the grievance of refusal to pass an interim order by the learned Trial Judge on the ground that in the event of passing such interim order that would be in the nature of final order, as the issue involved in the writ application was a challenge of the decision of the West Bengal Board of Secondary Education disapproving the order of suspension as was passed by the Managing Committee of a school, controlled and guided by the Rules of Management of Recognized Non-government Institutions (Aided & Unaided) Rules, 1969 (hereinafter for brevity referred to as Management Rules, 1969). In terms of the provisions of law under Rule 28 sub-rule (9) Clause 7(a) of management rules, 1969 the Managing Committee is empowered to suspend any teacher pending drawal of proceeding subject to condition that such action should be approved by the Board by referring the matter, for which the matter was referred to within seven days from the date of suspension. In deciding the appeal we are of the view that the writ application could be disposed of. Hence the writ application is also taken up to our file for final disposal. Parties agreed to such. 3. The factual matrix in the writ application as asserted is very short. The respondent No.9, is Head Master of Joygram J.N. High School, a school controlled by the said Management Rules of 1969 who suffered the order of suspension issued by the Managing Committee in exercise of the power under Rule 28(9)(viia) of the Management Rules, 1969, pending drawal of departmental proceeding, for the interest of institution. The suspension order, thereafter, was referred to the Board for approval as per the said statutory provision. The Board refused to approve the order of suspension by its decision dated 15th September, 2006 which was the subject-matter of challenge in the writ application on the ground that the Board exceeded its jurisdiction to pass such a decision, as the Board analysed the charges as framed against the delinquent teacher by holding that the charges were not legally sustainable. In the writ application accordingly a case was made out that the Statutory Board, viz., the section 24 Committee in terms of the West Bengal Board of Secondary Education Act, 1963 exercised their power beyond statutory limit of exercising jurisdiction as envisaged thereto under Rule 28(9)(viia) of the said Management Rules, 1969. 4. For effective adjudication of the matter the relevant statutory provision is required to be dealt with Rule 28(9) (vii a) of the Management Rules reads such: "28(9)(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 per cent 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, make 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 fact of the case but under no circumstances the time limit shall be waived beyond the limit of one year : 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 per cent 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." 5. On a bare perusal of the said Rule as quoted above, it appears that the condition precedent to issue an order of suspension by the Managing Committee against any teacher or employee pending drawal of departmental proceeding is only on satisfaction that such suspension would be in the interest of the institution. On that consideration the suspension order as issued pending drawal of departmental proceeding was required to be approved by the Board. On that consideration the suspension order as issued pending drawal of departmental proceeding was required to be approved by the Board. In the instant case the approval as was sought for, was refused by the Board not on considering the condition that suspension order should be imposed in the interest of the institution but on consideration of the charges as was subsequently issued by initiation of a departmental proceeding. On a bare perusal of the statutory provision it appears that the cause of action of the order of suspension under the said statutory provision indicates that at that time there was no drawal of formal departmental proceeding. Hence, while considering the issue of approval the Board and/or the section 24 Committee being vested with the power the said Board, only has the Jurisdiction to look into the print as to whether in the interest of the institution such suspension order should be approved or not and the Board and/or the section 24 Committee as the case may be, under no circumstances in such type of suspension order was entitled to analyse and/or to make scrutiny of the charges framed against the delinquent teacher in a departmental proceeding subsequently to identify the legality and validity of the charges. The legality and validity of the chargres of departmental proceeding very well could be considered by the West Bengal Board of Secondary Education while according first approval of the school's proposal for initiating disciplinary proceeding against a teacher in terms of the Circular letter No.S/607 dated Calcutta the 21st June, 1982 issued by the Secretary. West Bengal Board of Secondary Education whereby and whereunder it is provided that after taking a resolution of the Managing Committee containing the charges against the delinquent-teacher, a formal charge-sheet be issued asking the person concerned to reply and on consideration of the reply a decision should be reached by the Managing Committee for continuing the proceeding which has been termed as the first stage of the departmental proceeding and the same is required to be approved by the Board. At that stage the Board surely has the power to consider the matter on merit, but prior to that the Board has no power to consider the legality and validity of the charges as framed against the delinquent teacher under suspension in terms of Rule 28(9)(viia) of the Management Rules, 1969. At that stage the Board surely has the power to consider the matter on merit, but prior to that the Board has no power to consider the legality and validity of the charges as framed against the delinquent teacher under suspension in terms of Rule 28(9)(viia) of the Management Rules, 1969. From the impugned order of the writ application dated 15th September, 2006 issued by the Committee constituted under section 24 of the West Bengal Board of Secondary Education being vested with the power of the Board. It appears that the said Committee considered the legality and validity of the charges while considering the approval issue of order of suspension which was issued by the aforesaid statutory provision of Rule 28(9) (vii a) of the Management Rules, 1969. The impugned order dated 15th September, 2006 reads such: "WEST BENGAL BOARD OF SECONDARY EDUCATION 77/2, PARK STREET, KOLKATA - 700 016. Memo No.24/743/C Date - 15.09.2006 From Deputy Secretary (Admn.) W. B. Board of Secondary Education 77/2, Park Street, Kolkata - 16. To The Secretary Joygram J. N. High School Vill. & P.O. - Joygram, Dist. - 24 Pgs-(North) Sub - Proposal for approval of suspension against Sri Apares Sarkar, H.M. of the school Ref- Your letter dt. 16.08.05. I am directed to inform you that the committee constituted under section 24 of the West Bengal Board of Secondary Education Act, 1963, as amended dealing with the cases relating to Disciplinary Proceedings against Teachers and Non-Teaching employees of the recognized Non-Govt. Institution (Aided & Unaided) under Rule 28(8), 28(8a), 28(8b) & 28(9)(viia) of the Management Rules considered the matter referred to above in its 163rd meeting held on 30.08.06. The aforesaid committee after careful observation of the facts and circumstances and on perusal of the enquiry report submitted (the enquiry committee was constituted in 157th meeting of this committee dt. 12.12.05 and the report was submitted on 25.08.06) resolved that the proposal for approval of suspension against Sri Apares Sarkar, Headmaster of the school be disapproved on the following grounds : 1) That the charge of long absence from 16.05.05 is not substantiated as Sri Apares Sarkar, suspended H.M. of the school was alleged manhandled on 15.05.05 by one member of MC of the school within the school premises. This allegation was evident in the GD he filed at Minakha PS on 16.05.05 in this matter and the written submission he made before he made DI schools (SE) on 16.05.05. 2) That the charge of looting of keys of school almirah cannot be substantiated as no FIR was lodged by the school authority in this respect. 3) The charge of removing the official seal of HM and pads and proforma of certificates cannot be substantiated as the school authority could not produce any document in favour of the allegation. No FIR was registered in this respect and school could not produce any stock book indicating the usage of school pads etc. 4) The charge of non-cooperation with the newly appointed teachers cannot be substantiated as the school authority could not produce a single teacher in front of the enquiry team who allegedly suffered due to the negligence on the part of the suspended HM of the school. On that other hand, it would found that the teachers were getting regular salaries and it was reported by the suspended HM that he being approached by the concerned DI went to his office to complete the paraphernalia to ease out the payment of salaries to the staffs even during his period of absence. 5) The charge that the HM allegedly is acting against the MC of the school cannot be substantiated prima facie as no documents were produced before the enquiry team in this respect. 6) The charge of non-disbursal of money regarding SC/ST grant cannot be substantiated by the school authority as the fund was disbursed by the concerned authority on April, 05 residual fund was retained by the concerned clerk upto August, 2005 and for that the concerned MC choose to present a blind eye to the clerk and there is a discrepancy in the un-disbursed amount stated therein. Since the accounts portion was not shown to the enquiry team by the authorities this charge is also of dubious nature. 7) The charge of misappropriation of money regarding SC/ST grant cannot be substantiated as the school could not produce any evidence in favour of the charge. Since the accounts portion was not shown to the enquiry team by the authorities this charge is also of dubious nature. 7) The charge of misappropriation of money regarding SC/ST grant cannot be substantiated as the school could not produce any evidence in favour of the charge. 8) The charge of misbehaving on the part of the HM with a guardian at intoxicated state cannot be substantiated as the school authority could not produce any eye-witness of this incident and no medical check up of the concerned HM was also carried out by the school authority. As per Rule 28(9)(viia) the suspension of the incumbent is made if his/her presence is considered detrimental to the interest of the school. Here the charges levelled against the HM are not adequately substantiated prima facie as is evident from the report of the enquiry team." 6. Having regard to the aforesaid provision it appears that the Committee under section 24 of the West Bengal Board of Secondary Education Act, 1963 exceeded its power/jurisdiction to deal with the matter and acted beyond the power vested under the Statute. It is a settled law that statutory body must act in terms of the Statute. It is further a settled law that an individual can do whatever he likes save and except as are prohibited in law but the statutory body must act in terms of the Statute. Reliance may be placed to the judgments in the case of Maniruddin Bapari vs. Chairman, Municipal Commission, Dhaka, reported in 40 CWN 17, S. R. Tewari vs. District Board, Agra, reported in 1969(2) SCC 551 , Bhavnagar University vs. Palitana Sugar Mills, reported in 2003(2) SCC 111 . On this point the matter has been dealt with in details by Earl T. Crawford in his book Construction of Statutes 1940 Edn. at Article 195 at page 334 to this effect: “If a statute enumerates the things upon which it is to operate, everything else must necessarily, and by implication, be excluded from its operation and effect. ... If the statute directs that certain acts shall be done in a specified manner, or by certain person, their performance in any other manner than that specified, or by any other person than one of those named, is impliedly prohibited". 7. ... If the statute directs that certain acts shall be done in a specified manner, or by certain person, their performance in any other manner than that specified, or by any other person than one of those named, is impliedly prohibited". 7. Having regard to the aforesaid statutory provision, we are of the view that the impugned order in the writ application dated 15th September, 2006 passed by a Committee constituted under section 24 of the West Bengal Board of Secondary Education Act, 1963 was de hors of the statutory power and jurisdiction as the said Board decided the approval issue in the angle of identity of legality and validity of the charges, which is not permissible under the law. Hence, the action is without jurisdiction and the same accordingly stands quashed and set aside. As a resultant effect the writ application succeeds. The appeal also is allowed to that extent and the stay application is disposed of in the aforesaid manner. 8. In view of the quashing of the order dated 15th September, 2006 of the Committee constituted under section 24 of the West Bengal Board of Secondary Education Act, 1963 the order of suspension, needless to say will survive and the delinquent headmaster will remain as suspended employee. However, the Committee constituted under section 24 of the said Act would be at liberty to consider the approval issue on strict adherence of the power vested to them under Rule 28(9)(viia) of the Management Rules, 1969 viz., in the angle of interest of the institution. 9. It is made clear that the delinquent headmaster/respondent would be entitled to receive the subsistence allowance as per law. However, we are of the view that the decision on the issue of approval of suspension should be taken by the said Committee under section 24 of the said Act as expeditiously as possible. Pratap Kumar Ray & Tapan Mukherjee. JJ.: Appeal allowed.