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2015 DIGILAW 350 (CAL)

Beliara Junior High School v. Paresh Kumar Tewari

2015-04-17

SIDDHARTHA CHATTOPADHYAY, TAPEN SEN

body2015
JUDGMENT : Tapen Sen, J. Both these two appeals are directed against the judgment dated 31.07.2012 passed by learned Single Judge of this Court in WP No. 16826(W) of 2003 (Paresh Kumar Tiwary & Ors. v. The District Inspector of Schools (SE), Bankura & Ors.). FMA No. 473 of 2015 (MAT 1644 of 2012) was filed by the Head-Master of the Beliara Junior High School (impleaded as the Respondent No. 4 in the connected WP No. 16826(W) of 2003), being apparently aggrieved by the direction made by the learned Single Judge in the impugned judgment dated 31.07.2012 directing him "to take appropriate action against the Head Master of the school who was involved in this illegal activities for giving appointment to four persons who were not the organising staff and/or teachers of the school." [SIC] 2. We will analogously deal with this appeal along with FMA No. 474 of 2015. 3. FMA No. 474 of 2015 (MAT No. 107 of 2014) has been filed challenging the same judgment by which the learned Single Judge directed the Director of School Education to accept the report submitted by the Assistant Inspector of Schools and to give approval to the Writ petitioners/respondents in this appeal from the date of recognition of the school i.e. 20.02.1998 and to accommodate them in the present school or somewhere in the district of Bankura. The learned Judge also directed the concerned authorities to release their salary w.e.f 1998 i.e. the date when the recognition was granted with a further direction to complete the entire exercise within a period of eight weeks from the date of communication of the Order. While concluding however, the learned Single Judge directed the concerned Director of School Education as well as the District Inspector of Schools to take appropriate action against the Head-Master who was involved in the illegal activities for giving appointment to four persons who were not organising staff and/or teachers of the school. We have already indicated at the outset that this part of the judgment is a subject matter of challenge by the Head-Master in the other appeal being FMA No. 473 of 2015. 4. In the connected Writ Petition being WP No. 16826(W) of 2003, the Writ Petitioner - Respondent Nos. 8 to 11 of FMA 474 of 2015 are the same persons who have been impleaded as Respondent Nos. 4. In the connected Writ Petition being WP No. 16826(W) of 2003, the Writ Petitioner - Respondent Nos. 8 to 11 of FMA 474 of 2015 are the same persons who have been impleaded as Respondent Nos. 1 to 4 in FMA No. 473 of 2015 and therefore, for the sake of brevity, they would hereafter be referred to as the concerned respondents. 5. In the Writ Petition, the concerned respondents made out a case that they were organising teachers and non-teaching staff of the Beliara Junior High School; P.O. Lat Beliara in the District of Bankura in the State of West Bengal (hereinafter referred to for the sake of brevity as the concerned/said school). They further pleaded that the local people of the area initially organised a High School upon consideration of inconvenience faced by the students and therefore they along with the concerned respondents established the said schools and for purposes of appropriate management, an organising managing committee was also constituted. For purposes of running the school, the managing committee appointed teachers and clerical staff including the concerned respondents. The school also issued appointment letters, which were marked Annexure P1 collectively. After the school was set up in the year 1971, several representations began to be made to different authorities by the organising managing committee as well as by the local people of that area praying inter-alia for grant of recognition. These representations came to marked as Annexure P2 collectively in Writ Petition. In response, the District Level Inspection Team made several inspections and the School also complied with all necessary requirements under the Statute at the time of inspection by submitting proforma inspection report to the concerned team. That report was marked Annexure P3 in the Writ Petition. However, no effective steps were being taken and therefore the concerned respondents along with other organising teachers filed a Writ Petition before this Court which was registered as C.O. No. 19174(W) of 1998. By reason of an Order dated 08.06.1998, the formal respondents were directed to act in terms of the programme set out in the said order. However, no effective steps were being taken and therefore the concerned respondents along with other organising teachers filed a Writ Petition before this Court which was registered as C.O. No. 19174(W) of 1998. By reason of an Order dated 08.06.1998, the formal respondents were directed to act in terms of the programme set out in the said order. The said order which has been brought on record in both the appeals read as follows:- "The concerned respondents shall cause a District level enquiry and inspection of the school concerned within 3 weeks from the date of communication of this Order, where after the report shall be sent to the Director of School Education, Govt. of West Bengal at an early date and preferably within a period of 3 weeks thereafter. The said Director of School Education shall forward the matter with his recommendations, if any, to the Department of Education, Govt. of West Bengal, and the said Department of Education will send the matter within 3 weeks from the date of receipt of such recommendations to the Director of School Education to the Bengal Board of Secondary Education. The said Board, upon receipt of the relevant inspection report and/or recommendation report of the competent authorities, must dispose of the matter in terms of the aforesaid Rules for Recognition and upon consideration of the said inspection and/or recommendation reports within 1 month from the date of receipt thereof." The concerned respondents further pleaded that in compliance of the aforementioned Order dated 08.06.1998, the District Level Inspection Team made an enquiry on 20.02.1998 when these respondents were present in the school. Upon enquiry, it was intimated to them by the Head-Master that the inspection report submitted by the managing committee did not contain the names of any of the teaching and non-teaching staff as organising members and that the concerned column was kept blank as was usual in the earlier occasions. As a result, the concerned respondents visited the office of the District Inspector of Schools (SE) several times and came to understand that unless the names of the organising staff were available, no order of approval of their appointment can be given. As a result, the concerned respondents visited the office of the District Inspector of Schools (SE) several times and came to understand that unless the names of the organising staff were available, no order of approval of their appointment can be given. Upon being told thus, the concerned respondents met the District Inspector of Schools (SE) and the said authority then informed them that a separate sheet had been filed by the Head-Master of the school wherein their names had not been selected and the names of four more persons had been incorporated therein. Being aggrieved, the concerned respondents complained and prayed before the District Inspector of Schools (SE) that necessary steps be taken for a special inspection with regard to the deletion of the names of the petitioners from the said sheet but no steps were taken by him and the complaints were left unattended. These complaints were marked as Annexure P5 collectively in the Writ Petition. Getting no results, the concerned respondents then agitated the matter before the President of the Managing Committee but in reply, the said Committee totally denied that the names of the concerned respondents had been deleted and a letter dated 12.01.1999 addressed to the Secretary, State Social Welfare Board, Govt. of West Bengal was handed over to the concerned respondents wherein their names were shown as teaching and non-teaching organising staff of the said school. The said letter was marked as Annexure P6 to the Writ Petition. The concerned respondents alleged that there was a conspiracy between several interested persons with the school administration for personal gains to provide service to outsiders and to their prejudice. Consequently, they again wrote letters demanding justice from the concerned District Inspector of Schools (SE) and stated that there was a conspiracy between some members of the Managing Committee to dislodge their claims for approval and therefore, immediate steps be taken after considering the records and documents of the school. Since nothing was done, the concerned respondents filed the second Writ Petition being WP No. 10758(W) of 1999 before this Court and by an Order dated 03.05.2002, the concerned authority was directed to hold an enquiry and pass a reasoned order after hearing the parties. The said order has been marked as Annexure P-7 in the connected Writ Petition being WP No. 16826(W) of 2003. The said order has been marked as Annexure P-7 in the connected Writ Petition being WP No. 16826(W) of 2003. Pursuant to the said order, the Director of School Education directed the District Inspector of Schools (SE) to hold an enquiry. Thereafter an enquiry was held and a report furnished by the Assistant Inspector of Schools giving specific findings that the concerned respondents were the organising staff and that no letters of appointment had been issued to the appellants herein (namely Haraprasad Bandyopadhyay, Ananga Mohan Sharma, Minati Kundu and Madhav Deb Sharma). The said report was marked as Annexure P-8 to the Writ Petition and the same has also been inserted in the Paper-Book of this Memo of Appeal between running pages 59 to 63. The concerned respondents alleged before the Writ Court that in spite of such a report which was marked as Annexure P-8, no weightage was granted to the same and the Director of School Education, without considering the findings of the said report, took a different stand by passing an order dated 03.09.2003 (Annexure P-9 to the Writ Petition). Being aggrieved by the aforementioned order dated 03.09.2003, the concerned respondents filed the aforesaid Writ Petition being WP No. 16826(W) of 2003 which was allowed by the impugned order dated 31.07.2012 and which has been challenged in this Memo of Appeal by Haraprasad Bandyopadhyay, Ananga Mohan Sharma, Minati Kundu and Madhav Deb Sharma. 6. In the other Appeal, being FMA 473 of 2015 (MAT 1644 of 2012), the Head-Master of the school has also challenged the judgment but during the course of submissions, their learned Counsel namely Mr. Asit Kumar Bhattacharya assisted by Mr. Shyamal Kumar Pandey submitted that they are really aggrieved by that portion of the Order by which the learned Single Judge directed the Director of School Education as well as the District Inspector of Schools (SE) to take appropriate action against the Head-Master who was involved in illegal activities for giving appointment to four persons (meaning thereby Haraprasad Bandyopadhyay, Ananga Mohan Sharma, Minati Kundu and Madhav Deb Sharma). 7. We have carefully gone through the report submitted by the District Inspector of Schools (SE), Bankura sent to the Director of School Education, West Bengal vide letter dated 27.06.2003 under Memo No. 1539/S. We have also perused the contrary report dated 03.09.2003 passed by the Director of School Education. 7. We have carefully gone through the report submitted by the District Inspector of Schools (SE), Bankura sent to the Director of School Education, West Bengal vide letter dated 27.06.2003 under Memo No. 1539/S. We have also perused the contrary report dated 03.09.2003 passed by the Director of School Education. While the report of the District Inspector of Schools (SE), Bankura holds that the concerned respondents/Writ Petitioners of WP 10758(W) of 1999 (i.e. Paresh Kumar Tiwary, Bhagirath Garai, Sk. Tipu Sultan & Sibdas Deogharia - Respondent Nos. 8 to 11 of this Memo of Appeal), were the organising staff and their names were substituted by some unauthorised persons in a very irregular and illegal manner by suppressing their attendance in the school on 20.02.1998 (i.e. date of the District level inspection team), the report of the Director of School Education, on the other hand, holds that these Writ Petitioners cannot claim approval of their services as organising staff of the school. 8. Having considered both the reports we find that the Director of School Education has nowhere taken pains to deal with each of the findings of the District Inspector of Schools (SE), Bankura. The said District Inspector had verified the documents of the school and had come to a conclusion that the respondents herein had filed a number of Writ Petitions earlier and in spite of the fact that their presence was duly noted, some outsiders came into the picture by establishing themselves to be the organising staff by forging and manufacturing different letters. These appellants were put in the category of outsiders and the observations made by the District Inspector was that the appointment letters and joining reports of the respondents were duly verified and they were found to be in order. The District Inspector had also had the occasion to examine the Secretary of the Organising Committee. This Secretary had submitted a letter dated 04.09.2002 wherein he had specifically stated that he had not issued any appointment letter to these appellants namely Haraprasad Bandyopadhyay, Ananga Mohan Sharma, Minati Kundu and Madhav Deb Sharma. The Head-Master of the school had also failed to produce any Managing Committee Resolution in support of their appointments. This Secretary had submitted a letter dated 04.09.2002 wherein he had specifically stated that he had not issued any appointment letter to these appellants namely Haraprasad Bandyopadhyay, Ananga Mohan Sharma, Minati Kundu and Madhav Deb Sharma. The Head-Master of the school had also failed to produce any Managing Committee Resolution in support of their appointments. On the contrary, the President had produced a class routine dated 20.02.1998 i.e. the date on which the District Level Inspection Team had made the inspection and which was duly signed by the Head-Master to show that these respondents were allotted classes on that day. The Head-Master, in spite of having been given an opportunity, could not give any satisfactory explanation as to why he had allotted classes to these appellants namely Haraprasad Bandyopadhyay, Ananga Mohan Sharma, Minati Kundu and Madhav Deb Sharma in the same class routine. Interestingly, even these appellants, when confronted, failed to produce their appointment letters as organising staff of the school. Considering these aspects, the District Inspector came to the conclusion that these appellants were the organising staff and that they had been substituted by unauthorised persons in an irregular manner. 9. The Director of School Education, on the other hand, claimed that the petitioners cannot be approved. His findings are based on his own convictions and on the basis of submissions made by one party or the other. It is not a report that can be said to be conclusive so as to set aside the detailed findings of the District Inspector. He proceeds to accept the submissions of the school to the effect that the respondents had left the school but there was nothing before him to show whether such leaving and/or resignation was endorsed/accepted by the concerned school. In the background of such facts having been considered by us, we feel that the learned Single Judge was absolutely right when he said that the report of the District Inspector was not properly considered by the Director of School Education. The learned Judge also rightly observed that the Director did not consider the notice given by the then Secretary to all organising staff and teachers to be present at the time of the District Level Inspection Team which held its inspection on 20.02.1998. The learned Judge also rightly observed that the Director did not consider the notice given by the then Secretary to all organising staff and teachers to be present at the time of the District Level Inspection Team which held its inspection on 20.02.1998. The learned Judge also correctly observed that the Director did not even ask for the Resolution showing that the school authorities had accepted the resignations of some of the appellants. 10. So far as the attendance register is concerned, the learned Judge observed that it appears that one of the signatories thereto had submitted before the Inspector that the signature appearing in the said register was forged. The Inspector, at the time of his inspection had also observed that the Head-Master could not produce the Managing Committee Resolution showing the appointments of these appellants and who have been claiming to be organising staff of the school. 11. In the background of these facts and circumstances, the submission of the learned Senior Counsel that the impugned order must be set aside because the appellants were neither heard nor were they made parties in the Writ Petition, cannot be accepted for the simple reason that the finding against them by the concerned Inspector is that they were outsiders and had managed to dislodge lawful contenders of the status of organising staff by playing fraud, forgery and tampering with records in connivance with some interested school authorities for their personal gains. Fraud vitiates every action and therefore, they being saddled with such mischief, cannot be allowed equity nor can the Rules of Natural Justice be stretched to such an extent that by hearing them, the lawful claim of legally entitled persons will be frustrated. Therefore, they being outsiders to the issue, had no right to claim that they should have been impleaded in the Writ Petition and therefore the petitioners/respondents cannot be held responsible for not impleading them as parties nor can the learned Single Judge be faulted for passing the order in their absence. 12. We, therefore, are not inclined to interfere with the impugned Order insofar as it relates to the appellants and the private respondents and as a consequence FMA 474/2015 stands Dismissed and the Order of the learned Single Judge passed on 31.07.2012 in WP No. 16826(W) of 2003 is approved and upheld. 13. 12. We, therefore, are not inclined to interfere with the impugned Order insofar as it relates to the appellants and the private respondents and as a consequence FMA 474/2015 stands Dismissed and the Order of the learned Single Judge passed on 31.07.2012 in WP No. 16826(W) of 2003 is approved and upheld. 13. So far as the other appeal is concerned and which has been preferred by the Head-Master, we are of the view that since no prayer was made in Writ Petition for initiation of any appropriate action against the Head-Master, the learned Judge could not have straightaway directed the Director of School Education as well as the District Inspector of Schools to take appropriate action against him. Moreover, the learned Single Judge has also made an observation to the effect that the Head-Master of the school was involved in illegal activities for giving appointment to four persons who were not the organising staff/teachers of the schools. For such a finding to be recorded, it has to be preceded by a regular enquiry after framing of charges, issuance of show-cause notice etc. In the absence of any of these recourses having been resorted to, such a finding of the learned Single Judge cannot be said to be proper. 14. We, therefore, set aside the impugned order insofar as it relates to a direction upon the Director of School Education and the District Inspector of Schools to take appropriate action against the Head-Master. We also expunge the observation of the learned Single Judge to the effect that the Head-Master was involved in illegal activities in giving appointment to four persons. Having done so we allow FMA No. 473/2015 (MAT No. 1644 of 2012) but only to the extents indicated above. At this juncture, we must record that by earlier Order dated 10/10/2012, another Division Bench had directed the Superintendent of Police, Bankura to enquire any illegality or irregularity that may have taken place in the past in the school in question. An enquiry report was submitted before us in Court in a sealed cover which was opened in the Court. At this juncture, we must record that by earlier Order dated 10/10/2012, another Division Bench had directed the Superintendent of Police, Bankura to enquire any illegality or irregularity that may have taken place in the past in the school in question. An enquiry report was submitted before us in Court in a sealed cover which was opened in the Court. It is a report of the Superintendent of Police, Bankura signed on 08/12/2012 in which, while dealing with the facts and circumstances in extenso, he has observed that it is reasonable to come to a conclusion that the Head-Master and the District Inspector were in collusion and that transaction of money for illegal appointments cannot be ruled out. We refrain from making any observations or directions on this report as these would depend on the outcome of a departmental enquiry preceded by issuance of a notice to show-cause, charge-sheet etc. and after following all necessary formalities and procedure in relation to a departmental enquiry and in accordance with law. We therefore make it clear that this Order will not restrain the hands of the Government to proceed against the Head-Master strictly in accordance with law. 15. In the result, FMA No. 474 of 2015 is dismissed and FMA No. 473 of 2015 is allowed to the extents indicated above and with the modifications as above. 16. There shall be no order as to costs. 17. Urgent Certified Copy to be issued upon appropriate applications being made in that regard. Tapen Sen, J. :- I Agree.