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Vijoy Bahadur Singh and ors. Vs. Director, Secondary Education and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberC.R. No. 12303 (W) of 1979
Judge
Reported inAIR1981Cal105,85CWN284
ActsWest Bengal Board of Secondary Education Act, 1963 - Section 45; ;Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 - Rules 27(2), 27(3) and 28(2); ;Constitution of India - Article 226
AppellantVijoy Bahadur Singh and ors.
RespondentDirector, Secondary Education and ors.
Appellant AdvocateNani Coomar Chakraborty, ;Samar Kr. Dutt and ;Pulak Ranjan Mondal, Advs.
Respondent AdvocateArun Prosad Sircar and ;Apurba Lal Bose, Advs. (for Nos. 1, 3, 4 and 5), ;Suprokash Banerjee, Adv. (for No. 2), ;Jamini Kr. Banerjee, Adv. (for No. 7), Rabindra Nath Mitra, Adv. (for No. 8) and ;Tapas
Cases ReferredG. Muthukrishnan v. The Administrative Manager
Excerpt:
- orderb.c. ray, j.1. the petitioners who are members of the managing committee of gouripur hindi high school a class x high school, duly recognised by the west bengal board of secondary education has assailed in this writ petition the order contained in memo no. 6218--s.c./s. dated 25-10-1979 issued by the director, secondary education, west bengal, respondent no. 1, appointing sri t. k. lahiri, assistant inspector of schools (s. e.) 24-parganas as drawing and disbursing officer authorising him to draw all types of government aids payable to gouripur hindi high school and to disburse the same among the bona fide members of the school at approved rates until further orders in terms of g. o. no. 2675-edn. (s) dated 19-12-1978.2. the petitioners and the respondents nos. 7 to 9 are admittedly.....
Judgment:
ORDER

B.C. Ray, J.

1. The petitioners who are members of the Managing Committee of Gouripur Hindi High School a Class X High School, duly recognised by the West Bengal Board of Secondary Education has assailed in this writ petition the order contained in memo No. 6218--S.C./S. dated 25-10-1979 issued by the Director, Secondary Education, West Bengal, respondent No. 1, appointing Sri T. K. Lahiri, Assistant Inspector of Schools (S. E.) 24-Parganas as drawing and disbursing officer authorising him to draw all types of Government aids payable to Gouripur Hindi High School and to disburse the same among the bona fide members of the school at approved rates until further orders in terms of G. O. No. 2675-Edn. (S) dated 19-12-1978.

2. The petitioners and the respondents Nos. 7 to 9 are admittedly duly elected as members of the Managing Committee of the Gouripur Hindi High School on 14th of July, 1978. The life of the committee will expire sometime in July, 1981. The main challenge thrown in the writ petition is that the impugned order is illegal and bad inasmuch as it purports to affect the right of the Managing Committee conferred by Rules 27 and 28 on the Secretary of the Managing Committee of the institution as well as on the Secretary, Managing Committee to operate the accounts of the institution as well as to manage the funds of the institution. The impugned order has also been challenged on the ground that it purports to violate the provisions of Sub-rule (3) of Rule 27 of Rules for Management of Recognised Non-Government Schools (aided and unaided), 1969 inasmuch as there was no non-existence of any circumstance in which payment of grants-in-aid through the funds of the institution was considered non-expedient and the formation of the opinion by the Director was made on wholly irrelevant, extraneous grounds not germane. In other words, there was no valid reasons for formation of such an opinion by the Director and the opinion that was formed was a mala fide one. It has also been submitted that the impugned order has got civil consequences in-asmuch as it affects the righto of the Managing Commitee as well as of the Secretary of the school who is the petitioner No. 1 to manage and disburse the funds of the institution and the order was made without complying with and/or without observing the principles of natural justice which according to the petitioners are applicable to orders passed by the Administrative Authorities. It has also been submitted that the impugned order also violates the principles of fail play which is an index of the principles of natural justice because of the non-recording of any reasons for making the order. On all these grounds the impugned order was challenged before this Court and a rule and an interim order of stay of operation of the impugned order was obtained for a limited period of three weeks which, however, was subsequently extended till the disposal of the rule. On 29th of Jan., 1980, mere was a direction by this Court after hearing both the parties and the petitioner No. 2, the Head Master of the School to make payment of all the arrears of salaries including allowances to the five teachers named in the said order within a fortnight from date. It was also directed that in default of such payment the interim order should stand vacated. On 29th of Feb., 1980, the matter again came up before this Court and it was further directed that as the payment has not been made, in terms of the order aforesaid the interim order stood vacated by virtus of the said order, There was A direction on the authorities concerned to make payment of the five teachers within two weeks from that date.

3. It appears that an appeal was preferred against the said order being appeal F. M. A. T. No. 690 of 1980 wherein the application for stay was refused. Thereafter an application for stay was filed in the appeal under Article 136 of Constitution of India before the Supreme Court whereon the appellants were directed to comply with order passed by the Appeal Bench of this Court and to pay the above five teachers all their salaries.

4. An affidavit-in-opposition on behalf of the respondents Nos. 1, 3, 4 and 9 has been sworn by Sunirmal Kumar Roy, Special Inspector of Schools, 24 Parganas attached to the office of the respondent No. 3, the District Inspector of School. In para 6 of the said affidavit-ill-opposition it has been stated that there had been a conflict for a pretty long time and disagreement between the Managing Committee and some of the teaching staff of the school. It has also been stated that this will appear from the representations made by Md. Osman and some other teachers of the institution to the District Inspector of Schools, the respondent No. 3 stating inter alia, that the Managing Committee of the Gouripur Hindi High School has illegally withheld the Government grants (D. A., Ex gratia etc.) including deduction of salary of Md. Osman to the extent of Rs. 100/- from his salary though the Government has already granted salary, D. A. etc. to the apprqved teachers of the said school which Md. Osman and other four teachers of the said school are entitled to receive. If has further been stated on the basis of the said representation that an enquiry was held by the Assistant Inspector of Schools, grants-in-aid section, 24 Parganas who filed his report on 30th of Aug., 1979. It has also been stated that from the said report it would be clear that the Managing Committee of the said school in its meeting resolved that a sum of Rs, 100/-per month would be deducted from the salary of Md. Osman on and from April, 1979.

5. An affidavit-in-opposition on behalf of the respondent No. 7 who is a member of the Managing Committee from the category of teachers' representatives has been filed. It has been stated in para 3 (1) that the Secretary and the Head Master of the said school had been performing their duties of management of the school in a most irregular way and they were not making payments to the teachers in accordance with the grants-in-aid rules though the salary of the teachers are being sent as grants by the Government. The teachers were being forced to draw salary less than what they are entitled to for 1975-76 as well as in 1976-77 and a part of the salary which amounts in average 4 to 5. months salary for the aforesaid year remain unpaid. The teachers have also not been paid their full salary and D. A. for the years 1970-74 and a large sum of money are still lying unpaid till 1970. It has also been stated that the Secretary illegally stopped payment of salary to a teacher named Sri Nag Narayan Singh his Honours scale of pay till July, 1976. In sub-paragraph 3 (iii) it has been stated that a written complaint was made to the District Inspector of Schools (S. E.), 24 Parganas alleging non-payment of arrears amounting to Rs. 45,000/- for the years 1972 to 1975 against the Government grant duly drawn by the Secretary. It has also been stated that the respondent No. 7 and also other teachers were not paid their salaries though some of them have been working in the school for more than 12 years. It has also been averred that the respondent No. 7 and the other 4 teachers are all bona fide teachers of the school and they have been serving in the school for more than 10 years and they are contributing to the provident fund of the school also.

6. An affidavit-in-reply has been filed on behalf of the petitioners to the affidavit-in-opposition of respondents Nos. 1, 3, 4 and 9. In paragraph (ii) of the said affidavit in reply it has been stated that there was no disagreement or conflict with the bona fide teachers of the school except Md. Osman against whom disciplinary action has been taken by the Managing Committee in view of his activities as stated in writ petition. The Managing Committee resolved at its meeting held on 20th of May, 1979 to recover l/6th of the total loss from the pay and salary of Md. Usman at the rate of Rs. 100/- per month. The Managing Committee further resolved in the said meeting to terminate services of Sri Kanhaiya Tiwari, Sri Kedarnath Upadhyaya, Sri Nag Narayan Singh and Sri Prahled Pada Koshari as they had no valid appointments. It has also been stated that any one aggrieved by the decision of the Managing Committee may prefer appeal before the appeal committee. But the concerned teachers did not prefer any appeal and as such they could not make any grievance therefor. It has also been stated that the purported enquiry was never effected as the school authorities had no knowledge of such enquiry. It has also been further stated that the alleged enquiry and order on the enquiry report is absolutely untrue.

7. Mr. Nani Coomar Chakraborty, learned Advocate appearing on behalf of the petitioners has submitted that the impugned order appointing a drawing and disbursing officer is wholly illegal and in excess of jurisdiction as the said order was made without assigning any valid reasons therefor. It has been also submitted by Mr. Chakraborty that no reasons have been recorded in the order for appointing the drawing and disbursing officer and as such the said order is bad inasmuch as it violates the principles of natural justice. It has been submitted that fair play in action is an index of the principles of natural justice and fair play requires that the reasons for making the order have to be recorded in the order itself. Mr. Chakraborty further submitted that there has been a violation of the provisions of Rule 27 (3) of the Rules for the Management of Recognised Non-Government Institutions (aided and unaided), 1969 as amended in 1978 framed under the provisions of sub-section 1 and Clause 'D' of Sub-section (2) of Section 45 of the West Bengal Board of Secondary Education Act, 1963 inasmuch as the impugned order was made in tha absence of the requisite circumstances as envisaged in Sub-rule (3) of Rule 27. Mr. Chakraborty has therefore submitted that the impugned order has been made on extraneous consideration and mala fide and for invalid reasons. Mr. Chakraborty has also submitted that the onus is on the Government to show from records that relevant circumstances which is the condition precedent for the Director being satisfied were present on the basis of which he was satisfied. This onus according to him has not been discharged by the respondents and the impugned order is therefore an invalid order liable to be quashed and set aside. In support of this submission Mr. Chakraborty has cited some decisions. Mr. Chakraborty has lastly submitted that the principles of audi alteram partem applies to this case inasmuch as Rule 27 (2) read with Rule 28 (9) (iii) confers upon the Secretary of the Managing Committee as well as on the Managing Committee the right to manage the funds of the institution and to operate the accounts of the institution and this right has been interfered with or infringed upon by the impugned order. There was no enquiry nor any notice of such enquiry was ever given to the petitioners nor they are given any opportunity to make any representation against the proposed order of appointing a drawing and disbursing officer. The impugned order which has civil consequences was made in violation of the principles of natural justice and as such the same is also bad and invalid. Referring to the impugned order itself Mr. Chakraborty laid great stress on the express words 'consideration is suggesting' used therein and submitted that the impugned order was made in uttar non-observance of the principles of natural justice. Mr. Chakraborty also submitted in this connection that grants-in-aid given by the Government for payment of salary and Dearness Allowances of the members of the teaching and non-teaching staff of the school through the Managing Committee of the school form part of the funds of the institution and as such the Managing Committee is vested with the authority of managing the funds and disbursing the same to the members of the teaching and non-teaching staff of the school.

8. Mr. Sirkar, learned Advocate appearing on behalf of the respondents Nos. 1, 3 4 and 5 has, on the other hand, submitted that there is no illegality in making the impugned order by the respondent No. 1 as, according to him, the impugned order is in accordance with the provisions of Sub-rule (3) of Rule 27 which was added by notification No.

2675-Edn.(S)

dB-4/78 Mr. Sirkar also dB-4/78 submitted that the respondent No. 1 duly considered the circumstances under which payment of grants-ill-aid through the funds of the institution was not considered expedient in the opinion of the Director and the Director of Public Instruction being satisfied made the impugned order. In support of this submission he placed before this Court the averments made in para 6 of the affidavit-in-opposition sworn on behalf of the respondents Nos. 1, 3, 4 and 5. Mr. Sirkar has lastly submitted that there has been, no violation of the right of the Managing Committee of the institution conferred by Rule 28 (9) (iii) as according to him the grants-in-aid sent by the Government do not constitute the funds of the institution. These grants are earmarked for the specific purposes mentioned in the grants-in-aid memo for which they are to be disbursed to the members of the teaching and non-teaching staff of the aided school recognised by the Board. The Managing Committee or for that the Secretary of the Managing Committee is a mere agency or a vehicle or a post office through which the said sum is disbursed. It cannot be considered to be a part of the funds of the institution. The impugned order does not have any civil consequences inasmuch as it does not encroach upon or infringe any of the civil rights of the petitioners conferred on them by the Statute. In other words, the impugned order has no civil consequences. Mr. Sirkar has lastly submitted that the attack on the ground of mala fide cannot be sustained in view of the fact that in the plendings no particulars of the mala fide have been given. This challenge, therefore, is not competent.

9. Before proceeding to deal with the respective contentions raised by the learned Advocates of the parties it is relevant to set out the provisions of Sub-rule (3) of Rule 27 of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided), 1969. The said Rule runs as follows:

'If the Director is satisfied that circumstances exist in which payment of grant-in-aid through the fund of the institution is not expedient the Director may authorise an officer under him to draw and disburse the grant-in-aid in such manner as the Director may think fit.'

10. On a plain reading of the said Rule there is no dispute that the formation of the opinion by the Director of Public Instruction as to his satisfaction that circumstance exists is a subjective one. Now the question is whether the satisfaction of the Director can be challenged in a writ court. It is pertinent to refer to an observation made in H. W. Rule Wade's Administrative Law, 4th Edition, page 375:

'Subjective language as if the minister is satisfied as used in statutes refers to the subjective discretion of the administrative authority and the court cannot judge objectively. The discretion is to be exercised reasonably and in good faith and upon proper grounds. 'The minister is of opinion' and it was held that Court could quash the order of the minister if the opinion is based on no evidence or unreasonably or had gone wrong in law.'

11. This very question came up for consideration before the Supreme Court in the case of Barium Chemicals Ltd. v. Company Law Board : [1967]1SCR898 where Section 237(A) of the Companies Act empowered the Central Government to appoint one or more persons as Inspectors to investigate the affairs of the company and to report thereon to the Central Government if under Clause (B) of that section in the opinion of the Central Government these circumstances exist as specified in Sub-clauses (i), (ii), (iii). It was held that there must, therefore exist circumstances which in the opinion of the authority suggest what have been set out in Sub-clauses (i), (ii) and (iii), If it is shown that the circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefrom suggestive of the aforesaid things, the opinion is challeiigeable on the ground of non-application of mind or perversity or on the ground that it was formed on collateral means and was beyond the scope of the statute. In : [1969]3SCR108 , Rohtas Industries Ltd. v. S. D. Agarwal the same view has been reiterated by the Supreme Court where it has been observed that the existence of circumstance suggesting that the company's business was being conducted as laid down in Sub-clause (i) or the persons mentioned in Sub-clause (ii) were guilty of fraud or misfeasance or other misconduct towards the company or towards any of its members is a condition precedent for the Government to form the required opinion and if the existence of those conditions is challenged, the courts are entitled to examine whether those circumstances were existing when the order was made. In other words, the existence of the circumstances in question is open to judicial review though the opinion formed by the Government is not amenable to review by the courts. This was followed in the latter decision of the Supreme Court, reported in : [1975]2SCR93 , M. A. Rasheed v. State of Kerala where it has been observed:

'Where powers are conferred on public authorities to exercise the same when 'they are satisfied' or when 'it appears to them' or when 'in their opinion' a certain state of affairs exists; or when powers enable public authorities to take 'such action as they think fit' in relation to a subject-matter, the Courts will not readily defer to the collusiveness of an executive authority's opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicted.'

The same view was also expressed in : [1975]2SCR330 (State of Gujarat v. Jamuna das) at p. 2336 where it has been observed that requirements for formation of opinion must be objectively established as a condition precedent for the formation of opinion.

12. On a conspectus of the above decisions the position is now well-settled that though the subjective opinion cannot be questioned by the court yet the court can consider whether circumstances relevant or the condition precedent for the formation of the subjective opinion existed on the basis of which the administrative authhority was satisfied in making the order in question, in the instant case, it is to be considered whether circumstances in which payment of grant-in-aid through the funds of the institution is not expedient existed and the same was considered by the Director of Public Instruction and he was satisfied, or, in other words, in forming his opinion in making the impugned order the respondent No. i considered the relevant circumstances as provided in the Rule. It appears from the facts and circumstances disclosed in the writ petition that there is a dispute going on between some teachers including the five teachers namely Kedarnath Upadhyaya, Md. Usman, Kanhaiya Tiwari, Nag Narayan Singh, Prahled Pada Koshari (and the school authorities) over non-payment of the entire salary and allowances to them as remitted by the Government as grant-in-aid to the school. In paragraph 10 of the writ petition it has been stated that the Managing Committee at its meeting held on 20th of May, 1979 adopted a resolution to the effect that a sum of Rs. 100/- would be recovered from the salary of Md. Usman, one of the teachers of the school, every month with effect from May, 1979 till the total loss of Rs. 4,397.94 is realised. It was also resolved that the arrear payment for the period from 1972-75 be adjusted against his said outstanding amount. The District Inspector of Schools, however, on coming to know of this intimated the Assistant Inspector of Schools (S. E.), 24 Parganas Sri. P.K. Chakraborty who is the departmental nominee of the Managing Committee of the said school to see that the Managing Committee did not take any harsh steps adversely affecting the service conditions of the existing teaching and non-teaching staff of the school without specific reference to his office. He was also further asked to see that the resolution regarding Md, Usman be not confirmed in the subsequent meeting of the Managing Committee without concurrence of that inspectorate. This was annexed as annexure 'P' to the petition. The respondent No. 3 also on consideration of the representation of Md. Usman, a teacher of the school, asked the Secretary of the said school not to deduct an amount of Rs. 100/- per month from the salary of the above teacher. This, is evident from annexure 'G' to the petition. The Secretary of the school, the petitioner No. 1, however, replied to the respondent No. 3 that if the said teacher was aggrieved by the resolution he could prefer an appeal before the Appeal Committee of the Board. Moreover, from the averments made in paragraph 6 of the affidavit-in-opposition which remains uncontroverted that some teachers including Md. Usman made representation before the respondent No. 3, the District Inspector of Schools complaining of withholding Government grants remitted towards payment of their D. A. and Ex-gratia etc. including deduction of salary of Rs. 100/- from the salary of Md. Usman in spite of the same being granted by the Government. An enquiry was caused by the Assistant Inspector of Schools, grant-in-aid section, 24 Parganas and a report was submitted on 30th of August, 1979. The copy of the said report was also produced before the court and it was found that a sum of Rs. 100/-was deducted from the salary of Md. Usman. So it is clear and evident that the Managing Committee or for that the Secretary of the Managing Committee did not disburse and/or pay to the members of the teachers staff of the school the entire amount sent by the Government as grants-in-aid towards payment of the salaries, D. A. etc. of the teachers of the school. Submission was made on behalf of the petitioners that out of Ihe five teachers mentioned hereinbefore barring Md. Usman the other four teachers are not the approved teachers and as such they are not entitled to get their salaries and allowances in accordance with the provisions of the West Bengal Board of Secondary Education Act, 1963 and the Rules framed thereunder. This submission does not stand a moment's scrutiny in view of the clear averments made in the affidavit in opposition sworn on behalf of the respondents Nos. 1, 3, 4 and 9, that these five teachers are approved teachers of the school and they are entitled to receive their salaries. Moreover, there is no whisper either in the writ petition or in the affidavit in reply that no grants-in-aid on account of those five teachers were sent to the school by the authority for disbursing the same to them. The grants-in-aid memo submitted by the school signed by the Head Master clearly shows the names of these teachers as teachers working in the said school. This clearly negatives the submission which was endeavoured to be advanced on behalf of the petitioners. Moreover, the school authorities in spite of the specific direction made by this Court as well as by the appeal court which was confirmed by the Supreme Court while disposing of the application for stay in connection with an appeal under, Article 136 of the Constitution of India that these five teachers should be paid their salaries but uptil now nothing has been paid to any of them. On the other hand, during the pendency of the matter before the appeal court resolution was passed for their removal from service. This being the position, there is no doubt that circumstances existed in which payment of grants-in-aid through the funds of this institution was not considered expedient by the Director of Public Instruction, respondent No. 1 and the impugned order made by the respondent No. 1 cannot be said to be invalid as being made in the absence of relevant circumstances or non-existence of the condition precedent nor can it be said that the same was made on irrelevant considerations or on unreasonable grounds or for oblique purposes. The impugned order has, in my opinion, been made in accordance with the provisions of Sub-rule (3) of Rule 27 of the Rules for Management of Recognised Non-Government Schools (aided and unaided), 1969 as amended in 1978.

13. It is well settled that administrative decisions though conferred in subjective terms have to be made in good faith and on relevant considerations. In this case I have already said hereinbefore that there were circumstances in existence in which payment of grants-in-aid through the funds of the institution was not expedient and the Director, the respondent No. 1 considered those circumstances and was satisfied about their existence while making the impugned order. Therefore, in this background, it cannot be held that a reasonable man could not have come to the decision in question. The impugned order, in my opinion, is a reasonable one.

14. It has been urged on behalf of the petitioners that the principles of audi alteram partem will be attracted in this case inasmuch as the right to manage the funds of the said institution as well as to disburse the same is a statutory right conferred on the Managing Committee and for that the Secretary of the Managing Committee of the school by Sub-rule (2) of Rule 27 and Clause (iii) of Sub-rule (9) of Rule 28. The impugned order which purports to infringe the statutory right has therefore civil consequences and it is bad as the same has been made in non-observance of the audi alteram partem rule. 'Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action'. The above observation has been made by Bhagwati, J. in the case of Maneka Gandhi v. Union of India, : [1978]2SCR621 . In the case of A. K. Kraipak v. Union of India : [1970]1SCR457 it has been observed: 'The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. ......... ......... Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time arc now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far-reaching effect than a decision in a quasi-judicial enquiry'. Similar view was also expressed in D. F. O. South Kheri v. Ram Sanehi Singh, : AIR1973SC205 where it has been held that in an administrative proceeding involving civil consequences the doctrine of natural justice must be held to be applicable. 'Fair hearing is thus a postulate of decision-making cancelling a poll, although fair abridgement of that process is permissible. It can be fair without the rules of evidence or forms of trial. It cannot be fair if apprising the affected and appraising the representations is absent. The philosophy behind natural justice is, in one sense, participatory justice in the process of democratic rule of law.' The above observation was made in Mohinder Singh Gill's case, reported in : [1978]2SCR272 . The Supreme Court has observed in the case of S. L. Kapoor v. Jagmohan, : [1981]1SCR746 that the order issued by the Governor in superseding New Delhi Municipality under Section 238 (1) of the Punjab Municipal Act, 1911 (as applicable to New Delhi) is vitiated by the failure to observe the principles of audi alteram partem. Similar view was also expressed in AIR 1980 SC 1961 where it was observed that the principles of natural justice are to be followed when the impugned order involves civil consequences. Thus the above decisions clearly laid down that the principles of natural justice have to be observed not only in regard to the decisions or orders made by quasi-judicial bodies but also in regard to orders made by administrative bodies, if such orders have got civil consequences or, in other words, affect or encroach upon the rights of the persons concerned. Mr. Chakraborty, the learned Advocate on behalf of the petitioner, has eloquently submitted that the power to deal with the accounts of the school is vested in the Secretary and Joint Secretary of the Managing Committee of the school by Rule 27 (2) of the said Rules. Mr. Chakraborty has also submitted that power to manage the funds of the institution is vested under Rule 28, Sub-rule (9), Clause (iii) in the Managing Committee. The impugned order which purports to take away the power of the Managing Committee to deal with the grants-in-aid money given by the State Government certainly affects this right of the Managing Committee and the Secretary and Joint Secretary of the Managing Committee. The rules of natural justice therefore requires that the petitioners are to be given notice to show cause and are to be given an opportunity of making representations and or hearing against the same. The respondents have not issued any notice to the petitioners to show cause why such an order as aforesaid would not be made nor the petitioners were given any opportunity of hearing before the passing of the impugned order. The order, therefore, is invalid and bad as it contravened the principles of natural justice. Mr. Chakraborty has also cited the decisions in : AIR1974Cal296 , 1978 Lab IC NOC 115 (Cal) and 1980 Lab IC 475 (Mad) (FB). It has also been submitted that no reasons have been recorded in the order itself and thus the order is also bad on that ground as violating the principles of fair play in action which is also one of the principal requirements of the rules of natural justice. This submission of Mr. Chakraborty, in my opinion, has got no substance. Firstly, the grants-in-aid money is the money belonging to the Government which is sent to the school for the specified purpose of paying to the teachers on account of their salaries and Dearness Allowances etc, through the agency of the Managing Committee of the school. The grants-in-aid money by any stretch of imagination cannot be treated as part of the funds of the institution as the institution has got no control over it nor it can expend or disburse it in any manner other than what has been specified in grants-in-aid memo. It merely disburses the same to the members of the teaching and non-teaching staff of the school for the specific purposes mentioned in the grants-in-aid memo.

It will be appropriate to mention in this connection memo No. 2103 (16) G. A, dated 27th June, 1973 issued by the Education Director regarding schema for payment of salaries of teaching and non-teaching staff of Non-Government Aided Secondary Schools covered by Salary Deficit Schemes through Public Sector Banks. Paragraph 1 of the said instruction is quoted hereinbelow :

'The above scheme is actually a scheme for payment of Government grants-in-aid component of salaries of the teaching and non-teaching staff of the recognised non-Government Aided High Schools (including High Madrasah of Secondary Type) covered by Salary Deficit Scheme through Public Sector Banks.'

It will be relevant to consider in this connection the memo issued by the Finance Department of the Government of West Bengal under Memo No. 6696 F dated 19th Jan., 1978 under the heading 'Scheme for payment of salaries of teaching and non-teaching staff of non-Government aided Secondary Schools covered by Salary Deficit Scheme through Public Sector Banks.

1. In order to ensure regular monthly payment of salaries to the teaching and non-teaching staff of non-Government aided Secondary Schools covered by Salary Deficit Scheme, the Governor has been pleased to decide that a scheme for payment of State Government's Grants-in-aid to such schools through Public Sector Banks as detailed below shall be implemented with effect from 1st July, 1978. The Reserve Bank of India has been pleased to accord their concurrence to the implementation of the scheme.

2. For the present nine Public Sector Banks viz. State Bank of India, United Bank of India, Central Bank of India, Allahabad Bank, Bank of Baroda, Bank of India, United Commercial Bank, Indian Bank and Punjab National Bank will participate in the scheme. The scheme may be extended to other Public Sector Banks also in future.'

Therefore from these Government orders it is clear that these grants-in-aid money remitted by the Government can under no circumstances be considered and/or deemed to be a part of the funds of the institution. In other words, it is a separate grant given by the Government for this specific purpose mentioned in the grants-in-aid memo for its utilisation and the same cannot be merged with the fund of the institution and cannot be used or utilised in any purpose other than that has been mentioned in the grants-in-aid memo. In these circumstances it is inconceivable that the impugned order has in any way infringed any statutory right of the petitioner. The impugned order, in my opinion, has got no civil consequences and as such the audi alteram partem rule cannot be invoked to nullify or frustrate the impugned order.

15. As I have already held that the principles of audi alteram partem cannot be called in aid in questioning the validity of the impugned order it is redundant to enter into the question as to the consequences that will follow if the order is made involving civil consequences without observing the rules of natural justice. The decisions cited by Mr. Chakraborty in : AIR1974Cal296 , Serajuddin & Co. v. State of Orissa it was observed that an order passed in violation of the principles of natural justice is a nullity. The same view was also reiterated by the Madras Full Bench in the case of G. Muthukrishnan v. The Administrative Manager, New Horizon Sugar Mills Pvt. Ltd., 1980 Lab IC 475 at p. 479, para 7 where it was observed : 'Failure to adhere to such principles would result in a decision which is nullity because of total absence of jurisdiction.'

16. In view of my findings above it is not necessary to deal with the submission that the order is bad as it has not recorded any reasons.

17. Mr. R. N. Mitter, learned advocate appearing on behalf of the respondent No. 8 has urged with great emphasis that the impugned order is bad and also not sustainable inasmuch as ao reasons have been recorded in the order itself. Thus the superior court cannot know on which ground the order was made. This argument of Mr. Mitter is, however, has got no merits for simple reason that the impugned order which was made on 25th of October, 1979 clearly states that the said order appointing a drawing and disbursing officer was made in terms of G. O. No. 2675-Edn. (S) dated 19-12-1978. The above G. O. No. refers to' the amendments made in the rules for management of recognised non-Government institution (aided and unaided), Rules, 1969 by adding Sub-rule (3) of Rule 27. This Sub-rule (3) of Rule 27 empowers the Director when he is satisfied on a consideration of the circumstances in which payment of grants-in-aid through the funds of the institution is not expedient. Therefore, it is clear that the order recites the reasons that is the existence of the relevant circumstances for the Director of Public Instruction to be satisfied at the time of making the impugned order. Moreover, I have already held that the relevant circumstances have been considered by the Director of Public Instruction that the school authorities in spite of the directions by the District Inspector of Schools, 24-Paraganas have not paid the approved teachers the full amount of their pay, Dearness Allowances including Ex-gratia etc. as remitted by the Government and received by the school authorities as per the grants-in-aid memo. In consideration of all these circumstances the impugned order was made by the respondent No. 1. Therefore, in my opinion this argument is devoid of any merit.

18. For the reasons aforesaid the contentions raised on behalf of the petitioners having failed the Rule fails and it is therefore discharged. There will, however, be no order as to costs.


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