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2011 DIGILAW 990 (CAL)

Gouri Sankar Ganguly v. STATE OF WEST BENGAL

2011-07-28

JYOTIRMAY BHATTACHARYA

body2011
JUDGMENT 1. SINCE both the aforesaid writ petitions are inter-related to each other, both the aforesaid writ petitions were taken up for hearing analogously. The writ petition being W.P. No. 1670(W) of 2011 was filed by three members of the Managing Committee of Calcutta Blind School, Behala, Kolkata, challenging supersession of the Managing Committee of the said institution and appointment of an Administrator for managing the affairs of the said institution. The order of supersession of the Managing Committee of the said institution was communicated to the school authority by Officer on Special Duty and Ex-Officio Joint Secretary by his letter dated 14th January, 2011. Appointment of Administrator over the said institution was also communicated to the school authority by the said Officer on Special Duty and Ex-Officio Joint Secretary by another letter dated 14th January, 2011. Both the aforesaid letters were annexed to the supplementary affidavit being collectively marked as Annexure P/8 to this writ petition. 2. IN connection with the said writ petition an application for addition of party was filed by some of the employees of the said institution. They have also independently filed another writ petition being W.P. No. 5394(W) of 2011, praying for issuance of direction upon the concerned authority to take necessary steps against the Managing Committee of Calcutta Blind School, Behala, after holding an inquiry as to how the administration of the said institution is being managed by the Managing Committee of the said school. As a matter of fact, the said applicants complain about mismanagement of the said institution by the present Managing Committee and as such they also prayed for supersession of the present Managing Committee in their writ petition being W.P. No. 5394(W) of 2011. Re: C.A.N. No. 2687 of 2011 filed in W.P. No. 1670(W) of 2011. The original application for addition of party which was filed by the applicants therein remains untraceable in the records. As such the said application for addition of party is reconstructed on the basis of the copy of the said application which was supplied by the learned Advocate-on-Record of the applicants in course of hearing of the writ petition. Let the copy of the said application for addition of party be treated as original. 3. LET me now consider the merit of this application for addition of parties in the aforesaid background. 4. Let the copy of the said application for addition of party be treated as original. 3. LET me now consider the merit of this application for addition of parties in the aforesaid background. 4. SINCE the applicants herein have also filed an independent writ petition praying for supersession of the Managing Committee of the said institution by complaining about the mismanagement of the said institution by the present Managing Committee and further since the subject matter of dispute in the writ petition being W.P. No. 1670(W) of 2011 centres round a common dispute, which is also the subject matter of consideration in the other writ petition being W.P. No.5394(W) of 2011 which was filed by the applicants, this Court does not find any justification to allow the applicants" prayer for addition of party in the instant writ petition as even without adding them as party in the instant writ petition, they got full opportunity to ventilate their grievances in their writ petition which was heard analogously with the writ petition filed by some of the members of the Managing Committee. As such the applicants" prayer for addition of party stands disallowed. Let me now consider the merit of the writ petitions in the facts of the instant case. 5. THE Managing Committee of Calcutta Blind School, Behala, Kolkata- 700034, which was constituted in March 2010, was superseded on the ground that the said school is recently plagued with serious internal disturbances and the Managing Committee of the said institution has not been functioning properly and as a result of which the administration as well as teaching and learning to the disabled children of the institution is being greatly hampered. THE said order of supersession of the Managing Committee of the said school was communicated to the school authority by the Officer on Special Duty and Ex-Officio Joint Secretary by his letter dated 14th January, 2011 being Annexure P-8 to the supplementary affidavit. After superseding the Managing Committee of the said school, an Administrator has also been appointed over the management of the said school. THE appointment of the Administrator was also communicated by the Officer on Special Duty and the Ex-Officio Joint Secretary dated 14th January, 2011. Both the aforesaid letters were served upon the school authority on 31st January, 2011. 6. After superseding the Managing Committee of the said school, an Administrator has also been appointed over the management of the said school. THE appointment of the Administrator was also communicated by the Officer on Special Duty and the Ex-Officio Joint Secretary dated 14th January, 2011. Both the aforesaid letters were served upon the school authority on 31st January, 2011. 6. THE propriety of the said order of supersession of the Managing Committee of the said School and the appointment of the Administrator as aforesaid are under challenge in this writ petition at the instance of three of the members of the Managing Committee of the said school. Rule 4(1)(b) of the Service Rules for the Employees of the Sponsored Institutions for the Handicapped Students and the Management Rules of such Institutions deals with the provision of the supersession of Managing Committee of such institutions and for appointment of Administrator or an Ad-hoc Committee to manage the affairs of such institution. For proper appreciation of the dispute involved in this writ petition, the relevant part of the said Rules 4(1)(b) is set out hereunder:- "If on consideration of a report by the Director, the State Government is of the opinion that the Committee/Governing Body for the management of any sponsored institution has not been functioning properly, it may supersede such Governing Body/Managing Committee and appoint an Administrator or an Ad hoc Committee to exercise the powers and perform the functions thereof." 7. THE said provision, thus, makes it clear that the opinion of the Director regarding mal-functioning and/or mismanagement of the said institution by the Managing Committee is the foundation of the decision of the State Government for superseding the validly constituted Managing Committee of such an institution. On perusal of the impugned order of supersession, this Court finds that the said order is silent about the opinion of the Director. THE concerned authority has not stated in the impugned order that before superseding the Managing Committee of the said institution, the concerned authority took into consideration the opinion of the Director regarding mal-functioning and/or mismanagement of the said institution by the present Managing Committee. In fact, the very existence of such report of the Director was not mentioned in the impugned order of supersession of the Managing Committee of the said school. In fact, the very existence of such report of the Director was not mentioned in the impugned order of supersession of the Managing Committee of the said school. Non-consideration of the opinion of the Director before superseding the Managing Committee of the said school itself is a ground for setting aside the impugned order. However, such drastic decision cannot be taken in the present case as it is disclosed by the State respondents in their affidavit that the decision for superseding the Managing Committee of the said institution was taken by the State Government after taking into consideration the proposal given by the Director of Mass Education Extension, Government of West Bengal for dissolution of Managing Committee of the said school and for appointment of an Administrator therein. In fact, the proposal of the Director of Mass Education Extension for dissolution of the Managing Committee of the said school and for appointment of an Administrator therein which was submitted to the Secretary of Mass Education Extension and Library Services Department, Government of West Bengal has also been annexed to the affidavit in opposition being Annexure "R-2" at page 15 thereof. Though on perusal of such proposal which was given by the Director of Mass Education Extension to the Secretary, Mass Education Extension and Library Services Department, this Court finds that the reasons for formation of such opinion for superseding the present Managing Committee of the said school, has been disclosed therein, but no reference of the said Director’s proposal was made in the order of supersession of the Managing Committee of the said school which is impugned in this writ petition. As a result, it is absolutely impossible to ascertain as to whether the order of supersession was passed by the concerned authority after taking into consideration the Director’s said report being Annexure "R-2" to this affidavit in opposition. That apart even assuming that the said report was taken into consideration by the concerned Authority before passing the order of supersession of the Managing Committee of the said school but still then the order of supersession cannot be maintained as the impugned decision of supersession of the Managing Committee of the said school was taken by the concerned authority without supplying a copy of the Director’s said proposal to the members of the Managing Committee of the said school. Had the copy of the Director’s said proposal been circulated amongst the members of the Managing Committee of the said school, the Managing Committee could have controverted the correctness of such Director’s report and if after considering the Director’s report and the stand of the Managing Committee to the said report, the concerned authority would have formed an opinion that the proposal of the Director was acceptable then only the concerned authority, in my view, could have superseded the Managing Committee of the said school. THE effect of relying upon any material behind the back of a party, in arriving at a finding by the concerned authority, was deprecated by this Hon’ble Court in the case of Sachi Nath Ghosh and Ors. vs. West Bengal Board of Secondary Education and Ors.; reported in 1976(2) CLJ 289 ; wherein it was held that it is, however, well-settled that if any material is relied on behind the back of a party in arriving at a finding, the said procedure would be contrary to the Rules of Natural Justice and that being so, such decision cannot be maintained, as it is opposed to the Principle of Natural Justice. 8. RELYING upon the said decision this Court holds that the impugned order of supersession of the Managing Committee of the said school cannot be retained on record. That apart this Court finds from the Director’s said proposal being Annexure "R-2" to the affidavit in opposition that the Director not only gave a proposal for dissolution of the Managing Committee of the said school but also he suggested the name of a particular officer for being appointed as Administrator over the said school. Acting on such advice of the Director, not only the Managing Committee of the said school was superseded but also the person who was suggested by the Director for his appointment as an Administrator of the said school, was appointed as an Administrator by the State Government mechanically without adverting to the justification for appointing the very same suggested officer as Administrator over the said school. The Hon’ble Supreme Court in the case of State of Uttar Pradesh and Ors. The Hon’ble Supreme Court in the case of State of Uttar Pradesh and Ors. vs. Maharaja Dharmander Prasad Singh etc.; reported in AIR 1989 Supreme Court 997 held that whenever an authority is required to take any decision under any statute, the said authority is required to take such decision in its wisdom by applying its mind to the matter in issue. It was further held therein that the said authority cannot permit its decision to be influenced by the direction of others as this would amount to abdication and surrender of its discretion. If the decision of the authority is influenced by the decision of others then it would not be the authority’s discretion that is exercised but someone else’s decision is simply adopted by the authority mechanically. Thus, this Court holds that the appointment of the very same officer whose name was suggested by the Director as Administrator over the said school by the concerned authority, is also illegal as, such appointment was made mechanically by relying upon somebody else’s decision. Thus, such appointment also cannot be maintained. Under these circumstances, this Court holds that both the impugned orders i.e. the order of supersession of the Managing Committee of the said school and the appointment of Administrator therein both dated 14th January, 2011 cannot be retained on record. As such both the impugned orders stand set aside. The writ petition being W.P. No. 1670(W) of 2011 is, thus, allowed. As such both the impugned orders stand set aside. The writ petition being W.P. No. 1670(W) of 2011 is, thus, allowed. It is, however, made clear that since the impugned orders are set aside primarily due to procedural lapses and/or for violation of the Principles of Natural Justice, the order passed in the writ petition being W.P. No. 1670(W) of 2011 will not preclude the State Government from considering the proposal of the Director for supersession of the Managing Committee of the said school as contained in Annexure "R-2" to this affidavit in opposition used on behalf of the State respondents in W.P. No. 1770(W) of 2011 afresh and in the event the State Government decides to proceed further on the basis of the Director’s said proposal, the State Government may do so by following the Principle of Natural Justice so that the members of the Managing Committee are not deprived of an opportunity of being heard before the ultimate decision is taken by the State Government on the Director’s proposal for supersession of the Managing Committee of said school and/or for appointment of an Administrator therein. It is, thus, made clear that if the State Government decides to reconsider the Director’s said proposal afresh, opportunity should also be given to the petitioners in the other writ petition being W.P. No. 5394(W) of 2011 who have complained against the mal-functioning and/or mismanagement of the said school by the present Managing Committee. The writ petition being W.P. No. 5394(W) of 2011 is, thus, disposed of with above observation. 9. URGENT xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.