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2024 DIGILAW 1242 (CAL)

Silpa Bandyopadhyay v. State of West Bengal

2024-07-05

RAI CHATTOPADHYAY

body2024
JUDGMENT : Rai Chattopadhyay, J. 1. The writ petitioner is aggrieved due to the impugned Memorandum dated August 31, 2015, issued by the Principal Secretary to the Government of West Bengal. The writ petitioner is also aggrieved of the letter dated October 7, 2015, issued to her by the Secretary, West Bengal Board of Madrasah Education/respondent No.6 and the purported endorsement dated December 2, 2015, made in her service book by the said respondent No.6, that is, the Secretary, West Bengal Board of Madrasah Education. Hence this writ petition. In the same the writ petitioner has also challenged the legality and propriety of the Memorandum dated October 13, 2015, on the ground that the same has promulgated a provision, detrimental to her rights of fair and equal treatment and subversive to the rights enshrined in Article 14 of the Constitution of India. 2. For benefit of discussion, let the background facts be stated here, in a nutshell. The petitioner has been working as the upper division clerk, in the West Bengal Board of Madrasah Education/respondent No.5. Her initial temporary appointment was on and from February 1, 2006. She was confirmed in service with effect from February 1, 2009. November 1, 2009, is the date of her promotion to the present post. Since then, she has been serving continuously and uninterruptedly in the said post. 3. There has been a notification issued by the Government of West Bengal, Finance Department, that is, dated March 6, 2012. The same was relating to the Government’s decision not to grant leave on a stipulated date, which was to be observed as a day of strike by any political party and in case of absence of any person on the same date, to seek an explanation from such absentee employee. However, the following exceptions were also carved out in the said notification: “1) Leave due and admissible may be granted on production of documentary evidence in the following cases:- a) Hospitalisation of the employee. b) Bereavement in the family. c) Severe illness and absence continuing from before. d) Employees who had been on leave continuing from before, if such leave was sanctioned prior to issue of the above Circular. e) Compelling reasons of similar nature, where the employee could not report for duty for circumstances beyond his control. b) Bereavement in the family. c) Severe illness and absence continuing from before. d) Employees who had been on leave continuing from before, if such leave was sanctioned prior to issue of the above Circular. e) Compelling reasons of similar nature, where the employee could not report for duty for circumstances beyond his control. (Specific reasons with documentary proof will have to be furnished in each such case.) It is mentioned here that dislocation of traffic will not be a reason for granting leave as traffic remained normal on that day.” 4. The impugned Memorandum was issued on August 31, 2015. The same spoke as follows: “In view of call given by different Trade Unions for bandh/strike all over the country on the 2nd September, 2015, it has been decided that all State Government officers including those provided with Grants-in-Aid by the State Government would remain open and all the employees should report for duty on that date. It has also been decided that no leave would be granted to any employee on the said date. Now, the governor has been pleased to decide that absence of employees on that date will be treated as dies non and no salary will be admissible unless such absence is covered by the grounds as mentioned in Finance Department Memorandum No.2013-F(P) dt. 06.03.2012. All concerned Heads of Officers will take action accordingly following the procedure as mentioned in above memorandum. All actions in terms of this order should be completed by 30th September, 2015 and compliance report on action taken should be sent to this Department.” 5. The writ petitioner had participated in the strike on September 2, 2015, and did not join in the office on the said date. According to the Board, her case did not fall under any of those exceptional circumstances (as mentioned in the notification dated March 6, 2012 and quoted above). Hence the employer/respondent Board has taken action against the petitioner, in terms of the said notification dated August 31, 2015 and March 6, 2012. Firstly, by sending a letter dated September 17, 2015, the petitioner was directed to show cause as to her absence on the said date. Her reply dated September 18, 2015, was not found to be satisfactory. There have been dual actions taken against the writ petitioner, since thereafter. Firstly, by issuing the impugned letter dated October 7, 2015. Firstly, by sending a letter dated September 17, 2015, the petitioner was directed to show cause as to her absence on the said date. Her reply dated September 18, 2015, was not found to be satisfactory. There have been dual actions taken against the writ petitioner, since thereafter. Firstly, by issuing the impugned letter dated October 7, 2015. And thereafter, by endorsing a comment by the Secretary of the respondent Board/respondent No.6, in the service book of the petitioner on December 2, 2015. 6. The letter dated October 7, 2015, read as follows: “This is to state that you were absent on 02.09.2015 i.e bandh day and also you did not show any valid ground in terms of order no. 2013-F(P) dated 06.03.2012 of the Finance Department, Government of West Bengal. So, I am directed to inform you that as per order no.6501-F(P) dated 31.08.2015, 6535-F(P) dated 01.09.2015 and 6649(P) dated 04.09.2015 of the Finance Department, Audit Branch, Government of West Bengal, your absence would be treated as dies non and no salary would be admissible on that day of absence.” 7. The comment made in the service book of the petitioner read like this: “In terms of order No. 6501 – F(P) dt. 31.08.15, 6535 – F(P), dt. 01.09.15 and 6649 – F(P) dt. 04.09.15 of the Finance Dept. Govt. of West Bengal, the salary for one day absent on 02.09.2015 has been deducted as per direction of WBBME and her service for 02.09.2015 has been treated as break of service as per Rules.” 8. The impugned memo No. 7390-F(P) dated October 13, 2015, is relevant for the purpose of discussion, which reads as follows: GOVERNMENT OF WEST BENGAL FINANCE DEPARTMENT AUDIT BRANCH No. 7390-F(P) Dated : 13.10.2015 MEMORANDRUM In view of bandh/strike call given by different Central Trade Unions on the 2nd September, 2015, order was issued vide Finance Department No. 6501-F(P) dt. 31.08.2015 to keep all State Government officers including those provided with Grant-in-Aid by the State Government open on that day. In spite of such call, most of the employees attended their respective office on the said day overcoming the hazards. 31.08.2015 to keep all State Government officers including those provided with Grant-in-Aid by the State Government open on that day. In spite of such call, most of the employees attended their respective office on the said day overcoming the hazards. In view of such special efforts made by the employees in attending office on the said day i.e. on 2nd September, 2015, the Governor has been pleased to decide that one day’s Special Casual Leave will be granted to those employees of all officers as above who attended office on that day. Such Special Casual Leave shall be availed of within 31st December, 2015.” 9. The petitioner is aggrieved that though the authorities have mentioned in the service book regarding action taken against the petitioner “as per Rules”, but actually the same is absolutely bereft of the Rules, procedures and the principles of natural justice. She has alleged that an unfair and unjust treatment has been meted out to her for which her fundamental rights of life and equal treatment with equally placed people, are infringed and she has suffered prejudice. She alleges violation of her rights guaranteed under the duly promulgated statute too. The writ petitioner is also aggrieved that, by issuing the memorandum dated October 13, 2015, a sheer violation of the provision of equality as envisaged in Article 14 of the Constitution of India, has been committed by the respondents, by showing glaring discrimination of the petitioner, as against the other set of employees of the State, who are similarly circumstanced and placed with the present writ petitioner. According to the writ petitioner, grant of Special Casual Leave to the other employees and depriving the petitioner of the same, that too without following the due procedure under the law is an arbitrary action by the respondents, perverse and a nullity in the eye of law. 10. Mr. Samim Ahammed, learned counsel, appearing for the writ petitioner has stated firstly, that the comment of the Secretary, West Bengal Board of Madrasah Education/respondent no. 6, in the service book of the petitioner regarding ‘break of service’, pursuant to her absence for the purpose of participating in the strike, on the date of strike, would be dehors the statute and the Regulations governing the discipline and conduct of the writ petitioner. 6, in the service book of the petitioner regarding ‘break of service’, pursuant to her absence for the purpose of participating in the strike, on the date of strike, would be dehors the statute and the Regulations governing the discipline and conduct of the writ petitioner. He mentioned to Sections 38 and 20 of the West Bengal Board of Madrasah Education Act, 1994 and Rules 50, 56, 62, 77 and 79 of the West Bengal Board of Madrasah Education (Conditions of Service of Employees) Regulations, 2015, in this regard. 11. He has referred to the respective provision of the West Bengal Board of Madrasah Education Act, 1994 to submit that the said Act empowers the State Government for making rules/regulations for functioning and/or controlling discipline and leave of the employees of the respondent Board. In accordance with the said power as conferred by the statute, the Regulations, being the West Bengal Board of Madrasah Education (Conditions of Service of Employees) Regulations, 2015 was promulgated vide notification dated September 14, 2015, which has been duly published in the Official Gazettee. 12. He further says that after publication of the said Regulations of 2015, the affairs of the Board as well as Madrasahs would be governed under the provisions of the said Regulations and the State Government would cease to have any power to be exercised by dint of any administrative order, as regards the same in, view of such a substantive law and the Regulations framed thereunder, being in place. 13. According to Mr. Ahammed, learned counsel for the petitioner, the respondent no. 1 has acted beyond such statutory power and also in derogation of the principles of equality for the equals, as envisaged under the Constitution of India, while issuing the memorandum dated October 13, 2015. 14. He has also submitted by referring to Regulation 72 of the West Bengal Board of Madrasah Education (Conditions of Service of Employees) Regulations 2015, that the same has provided for the right of the employee to form an association, possess trade union rights including the right to strike. In view of the same the directions of the respondents are not only arbitrary but also illegal. He has further stated that pursuant to Regulation 79 thereof, it was incumbent upon the West Bengal Board of Madrasah Education/respondent no. In view of the same the directions of the respondents are not only arbitrary but also illegal. He has further stated that pursuant to Regulation 79 thereof, it was incumbent upon the West Bengal Board of Madrasah Education/respondent no. 5, to hold an enquiry into the alleged misconduct of unauthorized absence by the present writ petitioner, by following the principles of natural justice, before issuance of an order of punishment against her, that is, the impugned order of break of her service. He has alleged that the present writ petitioner has not been granted any opportunity of being heard before imposition of the penalty mentioned above against her, vide the order of the respondent no. 6 dated December 2, 2015, as impugned in this case. 15. In support of his submissions, Mr. Ahammed, learned counsel for the writ petitioner has relied on the following judgments: (i) Sk. Nausad Rahaman & Ors. vs. Union of India & Others reported in (2022) 12 Supreme Court Cases 1. (ii) Makhan Singh vs. Narainpura Cooperative Agricultural Service Society Limited & Anr. reported in (1987) 3 Supreme Court Cases 571. (iii) Shiv Shankar & Anr. vs. Union of India & Ors. reported in (1985) 2 Supreme Court Cases 30. (iv) Jawaharlal Nehru University Students’ Union vs. Jawaharlal Nehru University & Anr. reported in (1985) 2 Supreme Court Cases 32. 16. Mr. Ahammed, learned counsel has finally submitted that the present writ petition may be allowed and the impugned memoranda dated March 6, 2012, August 31, 2015 and October 13, 2015, the impugned letter of the respondent No.6 dated October 7, 2015 and the endorsement dated December 2, 2015, made by the respondent No.6 in the service book of the writ petitioner, be set aside. Also, that the respondent authorities be appropriately and adequately directed. 17. No one has appeared for any of the respondents. Hence, the case has been taken up for hearing, in absence of any representation by any of the respondents. However, the affidavits-in-opposition, submitted by the State respondent as well as respondent nos. 5 & 6/Board and its Secretary respectively, are available on record and those are considered. 18. As per the State respondent, it possesses ample power to issue an administrative order, as regards a subject matter, regarding which it has got the power to legislate a law. However, the affidavits-in-opposition, submitted by the State respondent as well as respondent nos. 5 & 6/Board and its Secretary respectively, are available on record and those are considered. 18. As per the State respondent, it possesses ample power to issue an administrative order, as regards a subject matter, regarding which it has got the power to legislate a law. That the power to make a law as regards the respondent Board vests with the State legislature, so is the power to issue an administrative order in discharge of its executive dispensation. That the same would be as per discretion and administrative convenience and requirement of the State, since particularly, that the Board’s functioning is dependent on State funding. Hence, the State shall not be barred under any provision of law, to exercise such discretion in case of discipline and conduct of the employees of the respondent Board, like that of the writ petitioner, in this case. So far as the respondent nos. 5 & 6, that is, the West Bengal Board of Madrasah Education and the Secretary, West Bengal Board of Madrasah Education respectively, are concerned, their opposition to the contentions and prayers of the writ petitioner is that the entire action of the said respondents had been in terms of the memorandum issued by the respondent no. 1, time to time i.e., on March 6, 2012, August 31, 2015 and October 13, 2015. 19. It is stated further by the respondent Nos 5 and 6, that in accordance with the reply submitted by the writ petitioner as to the show cause notice dated September 17, 2015, an appropriate action has been taken against the writ petitioner, by treating the day of her absence as break of her service. According to the said respondents, the actions taken against the writ petitioner has been in due observance of the authoritative directions issued by the State from time to time, by dint of the said various memoranda (as discussed above). 20. Both the said respondents have denied the allegations of undertaking any illegal or improper action as the petitioner has stated. They have sought for dismissal of the present writ petition. 21. 20. Both the said respondents have denied the allegations of undertaking any illegal or improper action as the petitioner has stated. They have sought for dismissal of the present writ petition. 21. The question here relates as to whether the petitioner, who has been admittedly governed under the provisions of the West Bengal Board of Madrasah Education Act 1994 and the West Bengal Board of Madrasah Education (Conditions of Service of Employees) Regulations 2015, can be subjected to any punitive action or decision, excepting the provisions of the said Act and Regulations. The question is also with regard to the extent of the power of the respondent State, to issue an administrative order beyond the scope of the provisions as made in the said statute or Regulations framed thereunder which has otherwise made provisions to cater the subject matter involved in the administrative orders of the State. In this case one should also look for an answer of the question that in case of conflict, which one is to prevail and be followed – the statutory provision or the administrative order so issued. It is also necessary to examine as to how far the allegation of exercise of discrimination against the writ petitioner, in violation of her constitutionally guaranteed right to be treated equally, with the other similarly placed people, can be substantiated in this case. 22. The expression government order/notification/memorandum in West Bengal administrative jargon means a decision taken either in exercise of the authority of the State under Article 162 of the Constitution of India or in exercise of the authority under some statutory provision. The legal status of the instrument could not have been challenged unless on the ground of abuse of the executive power or on the ground of malafide exercise of the executive power of the State, by dint of such an administrative order. In the case of Sk. Nausad Rahman & Ors. (supra), as relied on by Mr. Ahammed, the Supreme Court has said that, conditions of service should be in terms of a law enacted by the competent legislature, the rules made there under as per the provisions of Article 309 of the Constitution and the executive instructions (in case of the Union Government Servants) issued under Article 73 of the Constitution and those under Article 162 thereof, in case of State Government Servants. It has been held further that where there is a conflict between executive instructions and the rules framed or a law promulgated, the law would prevail. Executive orders are validated as the supplementary fillers, in case the law or the rules are silent. The Court has been candid to say that a policy decision taken through an executive order, either under Article 73 or 162 of the Constitution, is subservient to the substantive law or the rules framed there under. 23. The dissenting view of Justice Khanna in the case of ADM Jabalpur vs Shivakanth Shukla (reported in (1976) 2 SCC 521 ), may be mentioned. The Court was addressing issues concerning the Presidential order issued, that during the emergency period, a citizen could not have the liberty subsisting any further, to move under Article 226 of the Constitution of India, for enforcement of his rights and was weighing validity of such Presidential order. Justice Khanna dissented from the majority view and in favour of personal liberty of a citizen, on the ground that the right to life and personal liberty is the most precious right of human beings in civilised societies governed by the rule of law. According to Justice Khanna, even the Presidential order passed in exercise of the executive power of the State, should have been in accordance with the law providing for preventive detention. 24. The majority decision in ADM Jabalpur case (supra) has been overruled by the 9 Judges Bench decision of the Supreme Court, in K.S.Puttuswamy & Another vs Union of India & Others (reported in (2017) 10 SCC 1 ). The Court was dealing with the question that if right of privacy may be read to be intertwined with the rights guaranteed under Article 21 of the Constitution. The Court held that, in the context of Article 21, an invasion of privacy must be justified on the basis of a law, which stipulates a procedure, which is fair, just and reasonable. That the law and the procedure must also be valid with reference to the encroachment on life and personal liberty under Article 21. The Court held that, in the context of Article 21, an invasion of privacy must be justified on the basis of a law, which stipulates a procedure, which is fair, just and reasonable. That the law and the procedure must also be valid with reference to the encroachment on life and personal liberty under Article 21. The Court, in that case has been pleased to lay down that an invasion of life or personal liberty and thus of privacy, must meet the three fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim and (iii) proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them. 25. Even before ADM Jabalpur case (supra), the Supreme Court held in AIR 1967 SC 266 (Mahalakshami Mill Ltd. vs. CIT), that if the executive transgresses the principles laid down by the statute, it is struck down as ultra vires. Also in State of Haryana vs Samsher Jang Bahadur reported in (1972) 2 SCC 188 , it was held that the government is not competent to alter the rules framed under Article 309 of the Constitution, by means of administrative instructions, that the administrative instructions cannot supersede statutory rules. Validity of yet another administrative order was called into question in the case of A. Umarani vs Cooperative Societies reported in (2004) 7 SCC 112 . A 3 Judges Bench of Supreme Court held that the State cannot invoke power under Article 162 of the Constitution to do an act not provided for or sanctioned by the statute itself or rules framed thereunder. The Court held further that the State’s power to pass an appropriate order must be traced to the provisions of the Act itself and that Article 162 of the Constitution is not invocable as a source of power of the State to pass any and every order. In the case of Union of India vs Central Electrical & mechanical Engg. Service (Ce & McS) Group ‘A’ (Direct Recruits) Assn., CPWD CPWD reported in (2008) 1 SCC 354 , the said Court has found that the executive order must be passed in conformity with the statutory provisions and rules made thereunder. In the case of Union of India vs Central Electrical & mechanical Engg. Service (Ce & McS) Group ‘A’ (Direct Recruits) Assn., CPWD CPWD reported in (2008) 1 SCC 354 , the said Court has found that the executive order must be passed in conformity with the statutory provisions and rules made thereunder. Power of the State Government to issue executive instructions is confined to filling up of the gaps or covering the area which otherwise has not been covered by the existing rules. 26. The law is thus well settled. Supremacy of the law and the rules framed thereunder, are paramount and all pervasive, which cannot be made subversive of any administrative order. It is just the other way round. An administrative order of the executive should be supplementary or complementary to the substantive provisions of the legislature or the subordinate legislature. It may fill up the silent chapter of the legislation or may aid to effective implementation of a provision thereof, but not beyond. Anything contrary would render the legislation to be ineffective, nugatory and futile. 27. The employer of the writ petitioner, that is respondent no.6/Board, is a creature of the statute, i.e, West Bengal Board of Madrasah Education Act, 1994 (as per Section 2 (a) of the Act). The power and function of the Board would be as an advisory, to the State Government, on all matters relating to Madrasah Education, as has been referred to it by the State Government, to seek advice [as per Section 20 (1)]. There would also be certain general powers [under Section 20 (2)], of the Board, to supervise and control Madrasah Education. One important of those is the power to make regulations relating to conduct, discipline and appeal in respect of the members of Staff [as per Section 20 (2) (m)]. However, such regulation, made by the Board, would require approval of the State Government, to become operative [as per Section 20 (5)] 28. The West Bengal Board of Madrasah Education (Conditions of service of employees) Regulation, 2015, is such a Regulation, relating to conduct, discipline and appeal regarding the employees of the Board. It governs conditions of service of the writ petitioner too. 29. Issues originated pursuant to the writ petitioner’s absence from office on September 2, 2015, admittedly for the purpose of taking part in the State wise strike, called on by any political party. It governs conditions of service of the writ petitioner too. 29. Issues originated pursuant to the writ petitioner’s absence from office on September 2, 2015, admittedly for the purpose of taking part in the State wise strike, called on by any political party. Absence from office may be justified on account of leave and not otherwise. In that event, what avenues are open with the employer, who is also a ‘State’ within the purview of such definition, in the Constitution itself, to deal with the absence of an employee, which is otherwise than on account of leave? 30. In the present case we can find two simultaneous sets of procedures available, to deal with the so called unauthorised absence of the employee. One has been provided in the West Bengal Board of Madrasah Education (Conditions of Service of the Employees) Regulations, 2015 and strongly relied on by the writ petitioner. Leave Regulations under Chapter VII Part II have provided in Regulations 50 and 56, as to the various kinds of leave, to which an employee may be eligible to. In case an employee is found absenting without grant of any of the leave, as provided under the said regulations, he/she shall be subjected to disciplinary proceeding for imposition of penalty upon him, on account of unauthorised absence from duty. The procedure for imposing penalty has been laid down in Regulation 79, thereof, that no order of imposing any penalty under the said Regulations shall be made by the authority, except after an enquiry being held, in the manner as to the charges levelled against him/her, as provided in the said Regulations, 2015. Undisputedly, that the writ petitioner is governed under the said Regulations, 2015, and would be subject to the provisions thereof, even in case of any allegation against her regarding unauthorised absence from duty. 31. The respondent/Board, did not undertake recourse to the said Regulations, in case of the writ petitioner. Instead it undertook the simultaneous other procedure, as mentioned in the Memorandum dated August 31, 2015, September 1, 2015 and September 4, 2015, issued by the Finance Department, Government of West Bengal. The result appears through the letter of the Secretary of the Board dated October 07, 2015 and the note given in the service book of the petitioner on December 2, 2015. 32. The result appears through the letter of the Secretary of the Board dated October 07, 2015 and the note given in the service book of the petitioner on December 2, 2015. 32. In the letter dated October 07, 2015, the Secretary writes that petitioner’s absence would be treated as dies non and no salary would be admissible on that day of her absence. The contents of service book on December 2, 2015, has been quoted earlier. 33. The Court finds that in issuing the said letter dated October 7, 2015 and endorsing comment in her service book on December 2, 2015, the respondent has followed, not the statute or the regulations framed thereunder, but the notifications dated March 6, 2012 and August 31, 2015. As discussed earlier, that through various judicial pronouncements, the Apex Court has now settled the law in this regard. An executive order/instruction cannot substitute or supersede an act of the Legislature. Duly promulgated law and the rules/regulations framed thereunder shall have to be followed and an executive order may only be made effective in a place where the statute or Rules are silent, ambiguous or unable to be implemented excepting the said executive order. 34. The petitioner’s absence is desired to be treated as unauthorized and accordingly punished. The 1994 Act as well as the 2015 Regulations framed thereunder have sufficiently provided for the measures to be undertaken by the authority in case of unauthorized absence of an employee. Regulation 79 thereof has provided for the procedure for imposing penalty, which is self-exhaustive. 35. Excepting the above, the various kinds of leave have been provided under the Regulation 50, which may be extracted herein below:- “50. Definitions: In this Chapter and elsewhere in these regulations: (1) "Commuted leave", means the leave taken under regulation 54. Regulation 79 thereof has provided for the procedure for imposing penalty, which is self-exhaustive. 35. Excepting the above, the various kinds of leave have been provided under the Regulation 50, which may be extracted herein below:- “50. Definitions: In this Chapter and elsewhere in these regulations: (1) "Commuted leave", means the leave taken under regulation 54. (2) "Completed years of service" or "one year's continuous service", means continuous service of specified duration under the Board and includes the period spent on duty as well as absence on leave including extraordinary leave, (3) "Date of retirement", means the afternoon of the last day of the month in which the employee of the Board attains the age prescribed for retirement under the terms and conditions governing his service, (4) "earned leave", means leave earned under regulations 52 and 53, (5) "Half-pay leave" means leave earned in respect of completed years of service under regulation 54, (6) "Leave" includes "earned leave", "half-pay leave", "commuted leave", "leave not due", and "extraordinary leave", (7) "Special kind of leave", includes "special disability leave", "quarantine leave", "maternity leave" and "special casual leave",” 36. It cannot be helped but noticing that, a special leave in lieu of attending office on a day of strike, is not provided under the said Regulations of 2015. 37. The provision as above to deal with unauthorized absence of an employee is well defined. With regard to the provisions of the statute or the Regulations, there is no insufficiency or ambiguity to cater an incidental situation, particularly of unauthorized absence. It is settled that a well defined law or Regulation would prevail in case of conflict with an executive order. It is also a settled position that a law and not an executive order would be followed excepting in an event where the law is silent. 38. It appears with sufficient clarity in this case that there is difference, a conflict so to say, between the provisions of the Regulations governing the service condition of the petitioner and the executive directions vide Memoranda dated March 6, 2012, August 31, 2015 and October 13, 2015. The statute provided for imposition of penalty only by way of following the due procedure of law and the principle of natural justice. The statute provided for imposition of penalty only by way of following the due procedure of law and the principle of natural justice. Break of service of the writ petitioner for participation in the strike amounts to who imposition of penalty, though without following the due procedure as prescribed under the law. No hearing was extended to the writ petitioner before removing the credits of her past service, by endorsing comment, in her service book. That appears to be in violation of the principle of natural justice. Particularly when the right to participate in strike has been conferred under the regulations of 2015 itself, that is, vide regulation 72 (2) read with Note (ii) Clause C (iii) thereof. In that event, pursuant to the settled position of law as discussed above, the law would prevail over the executive orders. 39. The other point raised on behalf of the petitioner is with regard to the discrimination exercised against her, by allowing a compensatory leave to the other employees who have attended the office on the date of strike. That is done by the concerned respondent authority, by issuance of memo dated October 13, 2015. according to the petitioner, since treating her absence in office on September 2, 2015 as a misconduct is perverse and bad in the eye of law, gross discrimination has been meted out to her by issuance of letter dated October 7, 2015. According to the petitioner, she is entitled to be subjected to the similar treatment with her other colleagues who have been granted benefit under the memo dated October 13, 2015. 40. In the said memo dated October13, 2015, the concerned respondent has allowed one day’s special casual leave to those employees, who have attended office on September 2, 2015. The same is evidently without any basis and arbitrary in nature. I find force in the submissions made on behalf of the petitioner that such a dissimilar treatment to her, more so, when the steps taken against her by the said authority is not in conformity with the law, would offend the guarantee of equality, as envisaged under the Constitution. 41. However the Court does not find it proper to set aside the said memorandum, due to the reason that none of the beneficiaries thereunder, have been made a party in this case. 42. 41. However the Court does not find it proper to set aside the said memorandum, due to the reason that none of the beneficiaries thereunder, have been made a party in this case. 42. On the entire premise as above, this Court is of the considered view that the petitioner has been able to make out sufficient grounds, for which the writ petition may be allowed. 43. Therefore, writ petition being WPA 428 of 2016 is allowed with the following directions:- (i) Memorandum No. 2013-F(P) dated March 6, 2012 is hereby set aside, being in conflict with the Act of 1994 and the Regulations of 2015. (ii) Memo no. 6501-F(P) dated August 31, 2015 is hereby set aside. (iii) The impugned letter from the Secretary West Bengal Board of Madrasah Education dated October 7, 2015 to the writ petitioner is set aside. (iv) Impugned endorsement in the service book of the writ petitioner dated December 2, 2015 is hereby set aside. (v) The writ petitioner shall immediately join in duty. (vi) The respondent authority shall immediately pay to the petitioner the entire service benefits that stand accrued, during the period of her absence. 44. Urgent Photostat certified copy of this judgment, if applied for, be given to its parties on usual undertaking.