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2014 DIGILAW 435 (CAL)

Saikat Bandopadhyay v. Jirat Colony High School

2014-05-08

DEBASISH KAR GUPTA

body2014
JUDGMENT : Debasish Kar Gupta, J. 1. None appears on behalf of the respondents no. 5 and 6 in spite of service of copies of this writ application upon them. Let the affidavit of service be kept on record. 2. 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. 3. 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 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. 4. 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 (vii-a) of sub-rule 9 Rule 28 of the Management of Recognised 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. 5. 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 authorised 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. 6. 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. 6. 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. 7. In that view of the matter this writ application is taken up for final hearing. 8. 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 (vii-a) of sub-rule 9 of Rule 28 of the said rules, 1969 are set out below:- "(vii-a) 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. 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 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 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." 9. 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 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. 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. v. Maharaja Dharmander Prasad Singh, 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 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............." 10. 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. 11. Therefore, the impugned order is quashed and set aside. 12. 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 herein above. 13. 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 a period of six weeks from the date of communication of this order after giving opportunity of hearing to the petitioner and the representative of all concerned. Writ petition is disposed of accordingly.