Managing Committee Of Shree Balkrishna Vithalnath Vidyalaya & Anr. vs State Of West Bengal & Ors.

DIPANKAR DATTA, J. Â Â Â Â Â Â Â Â

The appellants are the Managing Committee of Shree Balkrishna Vithalnath Vidyalaya (hereafter the school) and its Secretary, who is also the

Headmaster of the school. They had invoked the writ jurisdiction of this Court by presenting an application under Article 226 of the Constitution of

India. The subject-matter of challenge in the writ petition was a memo dated 16th October, 2017 issued by the Deputy Director of School Education,

West Bengal addressed to the District Inspector of Schools (S.E.), Kolkata (hereafter the D.I.). The memo is set out in its entirety, hereinbelow:

“Ref : 1) This Directorate’s memo no.59/1(4)LS Dated 04/02/2015 2) Letter dated 05/05/2017 of Sri Rajesh Sinha 161/A, Balaram Dey Street,

Kolkata â€" 6 in connection with Shri Bal Krishna Vithalnath Vidyalaya He is hereby informed that an enquiry team consisting of Sri Debajyoti Baral,

Deputy Director of School Education, West Bengal (Boy’s High) and Sri Subhendu Ghosh, Assistant Director of School Education, West Bengal

will visit Shri Bal Krishna Vithalnath Vidyalaya, 26, Prasanna Kumar Tagore Street, Kolkata-700006 on 31/10/2017. He is requested to inform the

school authority to keep all the documents ready for inspection by the enquiry team. He is also requested to accompany the enquiry team on scheduled

date.â€​

The primary contention advanced in the writ petition was that Sri Rajesh Sinha, the respondent no.5, was a stranger to the school and, therefore, did

not have the locus standi to interfere in its affairs; consequently, the direction for holding enquiry having been given on the letter of such an individual

not having any locus standi was in colourable exercise of power. By the time the writ petition was taken up for consideration by a learned Judge of

this Court, who ultimately disposed it of by the order under challenge dated October 30, 2017, the Deputy Director had issued a further memo dated

October 23, 2017. The contents of the memo dated October 23, 2017, also addressed to the D.I., bear contents exact resemblance to the earlier memo

dated October 16, 2017, the only difference being that in the reference portion was included at serial no.3, a letter of Sri Ashis Kr. Tiwari, Assistant

Teacher of the school. The said memo dated October 23, 2017 was brought on record of the writ proceedings by the appellants by filing a

supplementary affidavit.

The order under challenge records the submission made on behalf of the appellants that the letter dated May 5, 2017, based whereon the impugned

memo dated October 16, 2017 had been issued, was of a rank outsider. It also records the submission that the direction contained in the subsequent

memo dated October 23, 2017 requiring the presence of Sri Ashis Kr. Tiwari to be present on the date of enquiry overlooks the fact that the said Sri

Tiwari is a suspended assistant teacher and, therefore, his presence at the time of enquiry is unnecessary. In course of hearing, it was not disputed by

Mr. Hiranmay Bhattacharya, learned advocate for the State that memo dated February 4, 2015 and letter dated May 5, 2017, referred to in the

impugned memo dated October 16, 2017, had not been served upon the appellants. It was then recorded in the order that Mr. Sanyal, learned

advocate for the respondent no.5, had made over to Mr. Biswaroop Bhattacharya, learned advocate for the appellants the memo dated February 4,

2015 and the letter dated May 5, 2017 and that, according to Mr. Sanyal, there was no necessity to defer the date of inspection.

 The learned Judge did not examine the question as to whether the Deputy Director of School Education, or for that matter the Commissioner of

School Education, West Bengal, to whom the respondent no.5 had addressed the letter dated May 5, 2015, had at all considered the point of the

respondent no.5 being a rank outsider and thus, having no locus standi to complain. In other words, the point of colourable exercise of power raised by

the appellants in their pleadings does not appear to have been examined although the learned Judge recorded that the materials on records had been

considered and the advocates appearing for the parties heard.

The learned Judge was of the view that since the appellants had not received the Director’s memo dated February 4, 2015 and the letter dated

May 5, 2017 of the respondent no.5 prior to presentation of the writ petition, the date of inspection scheduled on October 31, 2017 needed to be

deferred. The writ petition was disposed of with a direction that the inspection of the school by the enquiry team would be held on November 10, 2017

and to that extent the impugned memo dated October 16, 2017 stood modified. The order concluded with a further direction on the appellants to inform

Sri Ashis Kr. Tiwari within a week from date the modification that His Lordship had directed.

In the appeal, the appellants filed an application for stay. While hearing the application for stay as well as an application for addition of parties filed by

Sri Ashis Kr. Tiwari and some other teachers, we had proposed to hear the appeal itself on May 7, 2018 and accordingly directed the appeal, together

with the connected applications, to be listed under the heading “For Ordersâ€. While so directing, the interim order that had initially been passed on

the stay application restraining the enquiry team from conducting inspection of the school, was extended.

On May 7, 2018, the parties were heard at length. It was considered necessary to look into the relevant file maintained by the office of the

Commissioner upon receipt of the letter dated May 5, 2017 from the respondent no.5 as well as the letter of complaint dated August 10, 2017 of the

applicants for addition of parties complaining in respect of appointment of the Headmaster of the school as well as mis-management of the affairs.

The file was produced on May 8, 2018 by Mr. Hiranmay Bhattacharya. We have looked into the file and considered the facts and circumstances that

emerge on a perusal of the noting in the file. The respondent no.5 in his complaint dated May 5, 2017 alleged that the Headmaster of the school had

been appointed pursuant to a process which was vitiated on several grounds and, therefore, approval of his appointment ought to be cancelled. It was

also alleged that there were irregularities in the matter of disbursement of salary to the staff of the school. Ultimately, it was prayed that the approval

of the appointment of the Headmaster should be cancelled.

Interestingly, the respondent no.5 did not disclose in the complaint in what capacity he had lodged the complaint. It has been submitted by Mr. Sanyal

that the appellants did not urge any point in respect of alleged lack of bona fides in the Directorate’s order of enquiry and/or inspection passed on

the complaint of the respondent no.5. According to him, the point was abandoned by the appellants and, therefore, they cannot be heard on such point

by the appellate Court.

We are afraid, we cannot agree with Mr. Sanyal. Bare reading of the impugned order reveals that the learned Judge was apprised of a stranger

having lodged a complaint, yet, His Lordship did not decide the point of his locus standi to complain. Incidentally, despite there being a specific prayer

for setting aside memo dated October 16, 2017, the learned Judge did not record that the appellants did not press the point of invalidity in initiation of

enquiry on the basis of a complaint of a rank outsider. On the contrary, the learned Judge disposed of the writ petition by modifying the memo dated

October 16, 2017. This direction, in terms, amounted to a rejection of the prayer of the appellants and, therefore, the appellants are within their right to

raise the point before us that the learned Judge instead of disposing of the writ petition by fixing a further date of inspection ought to have examined

the matter on merits and decided whether the Directorate was justified in acting on the complaint of a rank outsider.

The allegation of the appellants that the respondent no.5 is a political leader who has been unnecessarily interfering in the affairs of the school need

not be examined further at this stage, in view of the order we propose to pass. Responding to our query as to why memo dated October 23, 2017 had

been issued, we were informed by Mr. Das, learned advocate for the applicants for addition of parties, that a letter of complaint dated August 10,

2017 written by Sri Ashis Kr. Tiwari and four other staff of the school trigerred the same. If indeed the staff of the school had a genuine grievance

and such staff had sought redressal thereof before the Commissioner, it could be within the powers of the Commissioner to direct an enquiry for

ascertaining the truth. We have no doubt in our mind that had the letter of complaint dated August 10, 2017 been looked into by the Commissioner as

well as the Deputy Director while accepting the proposal for conducting an enquiry into the affairs of the school at the time memo dated October 16,

2017 was issued, the appellants may not have been heard on their grievance that an outsider is interfering in the affairs of the school.

 It is precisely to ascertain as to whether the letter dated August 10, 2017 had formed one of the reasons for directing enquiry that we had called for

the departmental file. From the file we have found a letter dated September 25, 2017 written by Sri Ashis Kr. Tiwari to the Administrator, West

Bengal Board of Secondary Education (hereafter the Board) seeking supersession of the Managing Committee of the school and appointment of an

administrator. We have also found that the proposal to conduct an enquiry was made by an officer attached to the Directorate and it was

recommended to be accepted by the Deputy Director, whereafter the proposal was actually accepted by the Commissioner. It is clear that it was only

on the basis of the letter of complaint dated May 5, 2015 of the respondent no.5 that an enquiry team was constituted, and it was pursuant thereto that

memo dated October 16, 2017 bearing no.566-LS was issued. Immediately after such endorsement had been made at page 10 of the departmental file,

the following note appears with the date October 23, 2017 -

“ Discussed with C.S.E., W.B. at his office Chamber on 23/10/2017. As instructed, D.I./S (S.E.), Kolkata may be requested to instruct the S/A to

take necessary action so that Mr. Ashis Kr. Tiwari, Assistant Teacher may remain present at the time of enquiry. Placed.â€​

The proposal contained in the aforesaid extract having been accepted, memo dated October 23, 2017 had been issued. Mr. Hiranmay Bhattacharya

could not explain as to why the letter dated August 10, 2017 having been received by the Directorate, did not form the basis for ordering an enquiry

and why without even ascertaining the identity of the respondent no.5 as to whether he had locus standi to complain in respect of the affairs of the

school, a process of enquiry was mechanically put in place. It is because of such inability we are of the clear opinion that the learned Judge instead of

disposing of the writ petition with a partial modification of the impugned memo dated October 16, 2017 ought to have called for affidavits and decided

the issue once and for all as to whether on the basis of a complaint of a stranger, the Directorate could be activated into ordering an enquiry to the

affairs of the school.

We have also found from the file a representation dated October 16, 2017 with a prayer to supersede the managing committee of the school and to

appoint an Administrator as well as to cancel the approval of appointment of the Headmaster, addressed to the D.I. by the said Sri Ashis Kr. Tiwari

and four other staff (who were the joint signatories to the earlier letter of complaint dated August 10, 2017). It was contended that based on such

letter, copy whereof was received by the office of the Directorate on October 17, 2017, the subsequent memo dated October 23, 2017 came into

existence. It was sought to be pointed out by Mr. Hiranmay Bhattacharya that the Directorate was justified in directing the school to allow Sri Ashis

Kr. Tiwari to be present at the time of inspection having regard to the serious allegation brought out in the letter of complaint dated October 16, 2017

There is no dispute that Sri Ashis Kr. Tiwari has been suspended by the school with effect from September 21, 2017 and the proposal to suspend him

has duly been forwarded to the Board on September 22, 2017. The decision of the Board on the proposal of the school to suspend Sri Tiwari has

admittedly not yet been made known. A staff, whether he is a teacher or non-teaching staff, who has been placed under suspension by the school in

terms of the relevant rules continues to remain under suspension even without a formal approval having been accorded by the Board to such a

proposal till such time the proposal is considered and a decision is taken thereon rejecting it.

It appears that this vital fact (of being placed under suspension) was not adverted to by Sri Ashis Kr. Tiwari in his letter of complaint dated October

16, 2017. Whether or not a suspended staff, who is facing disciplinary proceedings and has been suspended bearing in mind the interest of the school

can be allowed to remain present at the time of inspection, is a question which requires examination. Indeed it does not appear to us that the

Directorate was aware of the fact of Sri Ashis Kr. Tiwari having been placed under suspension. It is in such facts and circumstances that the

direction for allowing Sri Ashis Kr. Tiwari to be present at the time of inspection, prima facie, appears to be not in accordance with law.

Having regard to the important questions that have arisen for consideration, we are of the firm view that this is a fit and proper case where a remand

ought to be directed. We order accordingly. The order under challenge stands set aside. The writ petition would stand revived on the file of the writ

Court. Let affidavit-in-opposition to the writ petition be filed by the respondents in the writ petition within four weeks from date; reply thereto, if any,

may be filed by a week thereafter.

The writ petition shall be treated as ready for hearing on completion of the period fixed above for exchange of affidavits and, thereafter, the parties

shall be at liberty to mention it for consideration before the appropriate Bench. Till such time the writ petition is decided, no inspection shall be

conducted in pursuance of the memo dated October 16, 2017 and October 23, 2017. The appeal and the stay application stand disposed of

accordingly. No order is passed on the application for addition of parties. It stands disposed of with liberty to the applicants to apply for addition before

the writ Court. Photostat certified copy of this judgment and order, if applied for, be furnished expeditiously.