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2017 DIGILAW 82 (GAU)

Badrul Islam v. State of Assam

2017-01-18

UJJAL BHUYAN

body2017
JUDGMENT AND ORDER : Ujjal Bhuyan, J. Heard Mr. M.U. Mondal, learned counsel for the petitioner, Mr. A. Deka, learned Standing Counsel, Elementary Education Department, Government of Assam, for respondent Nos. 1 to 5 and Mr. M. Hussain, learned counsel for respondent Nos. 6 to 14. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 04.08.2015, passed by the District Elementary Education Officer (DEEO), Dhubri, removing the petitioner as President of the School Managing Committee (SMC) of Dakhin Khankhowapara L.P. School under Bilasipara Education Block in the district of Dhubri and further seeks a direction to the respondents to allow him to continue as President of the School Managing Committee (SMC) of the said school. 3. Relevant portion of the order dated 04.08.2015, reads as under :- "As per report of the BEEO, Bilasipara and resolution adopted in the SMC meeting of Dakhin Khankhowapara L.P. School, held on 28.06.2015 in regards no confidence motion brought by 9 (nine) members of SMC against the President of the SMC of the School. The President Sri Badrul Islam is hereby removed and the Vice President, Sabiron Nessa is hereby allowed to work as President of the SMC of Dakhin Khankhowapara L.P. School under Bilasipara Education Block for day to day School functioning including implementation of MDM Scheme and SSA Scheme. This will come into force with immediate effect" 4. A perusal of the order dated 04.08.2015 would go to show that a No-Confidence-Motion was brought against the petitioner by 9 (nine) members of the School Managing Committee (SMC) on 28.06.2015 and based on the resolution of No-Confidence-Motion, petitioner was removed as above. 5. Contention of the petitioner is that he was not served any notice of the No-Confidence Motion and no opportunity of hearing was granted to him before passing the order dated 04.08.2015. 6. This Court by order dated 07.10.2015, had issued notice and directed maintenance of status quo by the parties. 7. On receipt of notice, a common affidavit has been filed by respondent Nos. 6 to 14, to which petitioner has filed reply affidavit. 8. 6. This Court by order dated 07.10.2015, had issued notice and directed maintenance of status quo by the parties. 7. On receipt of notice, a common affidavit has been filed by respondent Nos. 6 to 14, to which petitioner has filed reply affidavit. 8. Referring to the impugned order dated 04.08.2015 and the minutes of the School Managing Committee (SMC) meeting, held on 28.06.2015, learned counsel for the petitioner submits that impugned action of removing him from Presidentship of the School Managing Committee (SMC) was vitiated on account of non-receipt of notice by the petitioner prior to holding of meeting to discuss No-Confidence Motion and also due to not giving opportunity of hearing to the petitioner before passing the impugned order dated 04.08.2015. Referring to Rule 13 (5) (II) of the Assam Right of Children to Free and Compulsory Education Rules, 2011 (2011 Rules), learned counsel submits that principles of natural justice, more particularly, the rule of audi alteram partem mandates that before removal of the President like in the present case, he is entitled at least to a notice. Failure to observe minimum requirement of the principles of natural justice has vitiated the impugned order, which, therefore, should be set aside by this Court. In support of his submission, learned counsel for the petitioner has placed reliance on a decision of this Court in Afzal Hussain v. State of Assam; reported in 2016 (3) GLT 683, wherein removal of the President was set aside due to non-adherence to the principles of natural justice. 9. On the other hand, both Mr. Deka and Mr. Hussain, learned counsel for the respondents, submit that there is no error or infirmity in the impugned decision. Mr. Hussain has referred to the provisions of Rule 13 (5) (II) of the 2011 Rules and submits that a President can be removed in 2 (two) ways; firstly by the School Managing Committee (SMC) through a resolution signed by at least two-third of the members present in the meeting of the School Managing Committee (SMC) and voting and secondly, by the District Elementary Education Officer (DEEO) after satisfying himself of the facts through an enquiry that the person holding office of the President or functioning as President suffers from the drawbacks mentioned therein, which includes misconduct or negligence. It is only in the second way of removal that observance of the principles of natural justice would come into play, he submits. Therefore, the decision in Afzal Hussain (supra), relied upon by the learned counsel for the petitioner, is clearly distinguishable in the facts and circumstances of the case. 10. In his reply submission, Mr. Mondal has referred to the minutes of the School Managing Committee (SMC) held on 28.06.2015 and submits that petitioner was removed by making serious allegations of financial impropriety against him. Such resolution has been approved by the District Elementary Education Officer. It was, therefore, necessary that petitioner ought to have been heard before a decision was finally taken. 11. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 12. Impugned order of the District Elementary Education Officer dated 04.08.2015 has already been noticed above. A conjoint reading of this order together with the minutes of the School Managing Committee (SMC) meeting held on 28.06.2015 would go to show that 9 (nine) members of the School Managing Committee (SMC) were present in the meeting held on 28.06.2015 and they raised various grievances against the petitioner, including that of misappropriation of Government money and, thereafter, adopted resolution of No-Confidence against him, which was approved by the District Elementary Education Officer, as already noticed. 13. Since reference has been made to the provisions contained in Rule 13 (5) (II) of the 2011 Rules by both the sides, it is considered apposite to refer to the said provision in some detail. 13. Since reference has been made to the provisions contained in Rule 13 (5) (II) of the 2011 Rules by both the sides, it is considered apposite to refer to the said provision in some detail. For better appreciation, the said provision is extracted hereunder :- "(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 Sections 1302/363/366/376/395/409/465/468/477(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 ceases to have his/her child in the school (for the parent members only); (d) he/she is declared insolvent or of 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" 14. A careful analysis of this provision would go to show that there are 2 (two) ways of removing a President, Vice President or Member of the School Managing Committee (SMC). One way would be by way of a resolution signed by at least two-third of the members present in the meeting of the School Managing Committee (SMC), which should not be less than or equal to 50% of the total members of the Committee. Second way of removal is by way of passing of order by District Elementary Education Officer (DEEO) after satisfying himself/herself through an enquiry if the President, Vice President or Member, as the case may be, is convicted by a Court of law for offences involving moral turpitude or any of the offences mentioned in the provision, such as, offences under Sections 302/366/376 etc. under the Indian Penal Code, 1860 or if he ceases to be a citizen of India or if he ceases to be a resident of the village or ward in which the school is situated or ceases to have his/her child as student in the school (applicable in case of parent members) or if he is declared insolvent or of unsound mind or if he is found guilty of misconduct or negligence of duties or if he fails to attend 3 (three) consecutive meetings of the Committee. Therefore, it is evident that removal by the District Elementary Education Officer (DEEO), following enquiry would relate to disqualification of the person from being the President, Vice President or Member of the School Managing Committee (SMC) for the reasons enumerated above, which includes misconduct or negligence of duty. In so far the first way of removal is concerned, all that is required is that a resolution of No-Confidence Motion should be adopted, which must be signed by two-third of the members present, which in turn should not be less than or equal to 50% of the total members of the School Managing Committee (SMC). Thus, in so far the first way is concerned, it is evident that there is no requirement of giving notice or hearing to the President, Vice-President or Member of the School Managing Committee (SMC) though in the second mode, the need to comply with the requirement of the principles of natural justice is implicit. 15. At this stage, the decision of this Court in Afzal Hussain v. State of Assam may be adverted to. That was a case where President of the School Managing Committee (SMC) was removed from his office by an order passed by the District Elementary Education Officer (DEEO) based on an enquiry report of a Block Elementary Education Officer (BEEO). Petitioner was so removed on account of misconduct and negligence of duty. As a matter of fact, Court found that no resolution was adopted by the School Managing Committee (SMC) for removal of the President. But he was removed by the District Elementary Education Officer after finding him guilty of misconduct and negligence of duty. It was found by the Court that no hearing was afforded to the petitioner before the impugned order was passed. But he was removed by the District Elementary Education Officer after finding him guilty of misconduct and negligence of duty. It was found by the Court that no hearing was afforded to the petitioner before the impugned order was passed. Observing that finding of guilt of misconduct and negligence of duty and removal on the aforesaid grounds was stigmatic in character, this Court held that denial of notice and opportunity of hearing had vitiated the impugned decision and had rendered the same null and void. 16. Admittedly, facts of the present case stand on a different footing altogether. This is not a case where petitioner has been removed from the office of the President by the District Elementary Education Officer (DEEO), holding him guilty of any misconduct or negligence of duty. On the contrary, this is a case where petitioner was removed by the members of the School Managing Committee (SMC), expressing lack of confidence in him though on the ground of misconduct and negligence of duty. The two situations as already discussed above stand on different footings. It is not disputed that the resolution of the School Managing Committee (SMC) dated 28.06.2015 was not signed by two-third of the members present in the meeting, equal to 50% of the total members of the School Managing Committee (SMC). 17. In such circumstances, Court is unable to find any error or infirmity either in the resolution dated 28.06.2015 or in the consequential order of the District Elementary Education Officer (DEEO) dated 04.08.2015. 18. Consequently, this Court finds no merit in the writ petition, which is accordingly dismissed. 19. Status Quo order passed on 07.10.2015, stands vacated.