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2016 DIGILAW 560 (GAU)

Afzal Hussain v. State of Assam

2016-06-16

A.K.GOSWAMI

body2016
JUDGMENT AND ORDER : Arup Kumar Goswami, J. Heard Mr. M.U. Mondal, learned counsel for the writ petitioner and Mr. N. Sarma, learned standing counsel, Elementary Education Department, appearing for the respondent Nos.1 to 4. Also heard Mr. P.K. Deka, learned counsel appearing for the respondent No.5 and Mr. S. Alam, learned counsel appearing for the respondent No.6. 2. The writ petitioner was elected as President of the Managing Committee of the 45 No. Geramari L.P. School in a General Meeting of the parents and guardians of the students of the said School held on 18.12.2014. By an order dated 06.07.2015 passed by the District Elementary Education Officer, Dhubri, the petitioner was removed from the Office of the President and the Vice President of the School Managing Committee, represented by Mr. Alam, was allowed to act as the President of the School till such time the dispute between the President and the Member Secretary of the School, represented by Mr. Deka, was resolved after hearing the parties. The order was passed as indicated, based on an enquiry report of the Block Elementary Education Officer, Gauripur. 3. By an order dated 12.08.2015, the aforesaid order dated 06.07.2015 was suspended while issuing notice of motion. 4. Alleging violation of the aforesaid interim order, the contempt application was filed contending that the writ petitioner was not allowed to discharge his functions. 5. An application for vacating the aforesaid interim order was filed by the respondent No.5, which was registered as I.A. No.1703/2015. On 06.06.2016, a common order was passed in I.A. No.1703/2015 and in WP(C) No.4317/2015 that an attempt shall be made to dispose of the writ petition at the admission stage. Accordingly, the learned counsel appearing for the parties have addressed their arguments to enable the Court to pass final orders at the admission stage. 6. The constitution of the School Managing Committee and matters incidental thereto are governed by the provisions of the Assam Right of Children to Free and Compulsory Education Rules, 2011 (for short, “2011 Rules”) and Part-V thereof is entirely devoted to the School Managing Committee. Removal of President/Members of the School Managing Committee and filling up of vacancies are delineated under Rule 13(5) of the 2011 Rules. Removal of President/Members of the School Managing Committee and filling up of vacancies are delineated under Rule 13(5) of the 2011 Rules. Rule 13(5) of the said Rules consists of Sub-Rules (i) to (iv) and in the instant case, it is common ground of the learned counsel appearing for the parties that Rule 13(5)(ii) of the 2011 Rules is attracted and, therefore, at the very outset, it will be appropriate to extract Rule 13(5)(ii) of the said Rules:- “13(5)(ii) A person shall not be qualified to be President, Vice President or Member of the SMC and can be removed by the SMC through a resolution signed by at least two-third Members present in the meeting of the committee which should not be less than or equal to fifty percent (50%) of the total members of the committee or by the District Elementary Education Officer after satisfying himself/herself of the facts through an enquiry if- (a) he/she is convicted by the court of law for offences involving moral turpitude or any offence under Section 302/363/366/376/395/409/465/468/477(A)/493/494 of the I.P.C.; (b) he/she ceases to be a citizen of India; (c) he/she ceases to be a resident of the village/ward in which the school falls or cease to be or ceases to have his/her child in the school (for the parent members only); (d) he/she declared in-solvet or unsound mind; (e) he/she is found guilty of misconduct or negligence of duty; (f) he/she fails to attend three consecutive meetings of the committee.” 7. It is not in dispute that in the instant case no resolution was adopted by the School Managing Committee for removal of the President of the School Managing Committee but the President was removed in exercise of the powers conferred by Rule 13(5)(ii) of the 2011 Rules. To enable the District Elementary Education Officer to exercise the power provided under Rule 13(5)(ii) of the 2011 Rules, any one of the 6 (six) conditions laid down are to be satisfied. 8. Mr. Sarma has submitted that the petitioner was removed as he was found guilty of misconduct and negligence of duty. On a query raised by the Court as to whether any opportunity was granted to the petitioner before the impugned order was passed, Mr. 8. Mr. Sarma has submitted that the petitioner was removed as he was found guilty of misconduct and negligence of duty. On a query raised by the Court as to whether any opportunity was granted to the petitioner before the impugned order was passed, Mr. Sarma has candidly submitted that as 2011 Rules do not envisage grant of any opportunity of hearing, no hearing was afforded to the petitioner before the impugned order was passed. 9. It is already noticed that in the General Meeting of the parents, guardians of the students and as per the laid down norms under the 2011 Rules, the petitioner was appointed as the President of Managing Committee of the School. Finding of guilt of misconduct and negligence of duty and removal on the aforesaid grounds is stigmatic in character. 10. The principle of natural justice is, now, recognized as being firmly entrenched as part of the guarantee contained in Article 14 of the Constitution. Dynamic interpretation given by the Apex Court has crystallized that violation of a rule of natural justice results in arbitrariness and, therefore, violation of principles of natural justice by a State action is violation of Article 14. The principles of natural justice are not the creation of Article 14 and Article 14 is not their begetter but their constitutional guardians. 11. 'Audi alteram partem' rule which, in essence, enforces the equality clause in Article 14 of the Constitution, is applicable not only to quasi-judicial orders but to administrative orders affecting pre-judicially the party in question. 12. Denial of notice and opportunity to respond result in making the administrative decision as vitiated. The adequacy of notice is a relative term and must be decided with reference to each case. One of the essentials of a notice is to bring to the notice of the notice the specific charges which he is to meet. 13. Unless a statutory provision, either by specific or by necessary implication, excludes the application of the principles of natural justice, the requirement of giving a notice and a reasonable opportunity of being heard before an order is passed, is generally read into the provisions of a statute when the order has adverse civil consequences irrespective of the fact whether the order is passed by a statutory body or tribunal in any administrative or quasi-judicial capacity. Principles of natural justice must not be jettisoned save and except in very exceptional situation and circumstances where it will frustrate the need for utmost promptitude. 14. Even though 2011 Rules, per se, do not enjoin the authorities to grant an opportunity of hearing, principles of natural justice, at least in connection with Rule 13(5)(ii)(d) of the 2011 Rules, has to be read into and any order passed without following the essentials of the principles of natural justice will render the order passed violative of Article 14 of the Constitution of India. It is also noticed that in the impugned order itself, the District Elementary Education Officer had contemplated a hearing to resolve the dispute between the Member Secretary (respondent No.5) and the petitioner after granting them an opportunity of hearing. 15. In view of the above discussion, I am of the considered opinion that the impugned order cannot pass the scrutiny of law and, therefore, the same is set aside. Liberty is granted to the District Elementary Education Officer, Dhubri to grant an opportunity of hearing to the petitioner as well as to the respondent No.5 with regard to the allegations against the petitioner and by providing the enquiry report to both the parties and thereafter, pass an appropriate order as the circumstances of the case would warrant. 16. As the order dated 06.07.2015 passed by the District Elementary Education Officer, Dhubri is set aside, any consequential order passed by the District Elementary Education Officer permitting the respondent No.6 to act as the President, shall not be acted upon and they shall stand set aside. As the interest of the school is also involved, the District Elementary Education Officer, Dhubri will decide the aforesaid issue within a period of 60 (sixty) days from the date of receipt of a copy of this order. 17. So far as the contempt petition is concerned, Mr. Sarma has submitted that the District Elementary Education Officer had directed the Headmaster (respondent No.5 in the writ petition) to comply with the order of this Court. 18. Mr. Deka has submitted that before passing of the interim order, the respondent No.6 had taken over charge and, therefore, there was some confusion but now that the final orders are passed, certainly the petitioner will be entitled to continue. 19. In view of the above, the contempt application is not pursued any further. 20. 18. Mr. Deka has submitted that before passing of the interim order, the respondent No.6 had taken over charge and, therefore, there was some confusion but now that the final orders are passed, certainly the petitioner will be entitled to continue. 19. In view of the above, the contempt application is not pursued any further. 20. The writ petition and the contempt petition stand disposed of with the aforesaid observations and directions.