Ebadullah Sk. vs State Of West Bengal & Ors.

The writ petitioner is aggrieved by the action of the respondent No. 4 in rejecting his representations by an order dated April 20, 2017. This order was

passed pursuant to an order of a Co-ordinate Bench of this Court passed in W.P. 5890(W) of 2017 dated June 23, 2017. By such order the

representations dated January 13, 2017 and January 25, 2017 made by the present writ petitioner were directed to be considered and disposed of.

Very briefly these two representations are to the effect that the writ petitioner was allegedly the Chairman of the financial committee of the Madrasah

in question and also its Secretary. He was the authorised signatory for operating the Bank accounts of the Madrasah in question. However, the writ

petitioner alleged that the erstwhile headmaster who had resigned on February 1, 2017 was nonetheless demitting the office but was trying to prevent

the writ petitioner from discharging his duty as an authorised signatory in respect of the said Bank account. The writ petitioner alleged in the

representations that the said erstwhile headmaster who is arrayed as a teacher in charge respondent No. 6 in the present writ petition was doing this

for his personal gain.

By the impugned order the District Inspector of Schools has not decided whether the erstwhile headmaster had actually resigned or not or whether the

petitioner was being prevented by the teacher in charge or the erstwhile headmaster from acting as an authorized signatory or whether there was any

attempt by the said erstwhile headmaster/teacher in charge to remove the name of the petitioner as authorised signatory. Instead the representations

of the writ petitioner were not only rejected but it was by something wholly alien to the order passed by the Coordinate Bench of this Court. In order

to appreciate the extent of what I have to hold to be an act without jurisdiction the relevant paragraphs of the order passed by the respondent no. 4 are

reproduced hereinbelow:

“ The fact of the case lies in a short compass. An election for reconstitution of the Managing Committee of the Takipur High Madrasah was held

on 14.12.2014 and the managing committee was officially formed on 27.02.2015 wherein the petitioner namely Md. Ebadullah Sk was elected as

secretary and subsequently his name as secretary of the said committee was endorsed by the Madrasah Board on 07.05.2015.

On perusing of records as were placed before me it appears that the managing committee of the madrasah through the president adopted a no

confidence against the petitioner on the strength of an emergency meeting in order to abrogate him from the post secretary for which the notice and a

meeting dt. 30.12.2016 were called for and after maintaining all others formalities as required to remove a secretary from a valid managing committee

of the madrasah as per existing rules, the managing committee rightly abrogated the petitioner from the post of secretary.

The removal of the petitioner from such post is due to loss of confidence entrusted upon him as secretary and it is quite clear from the materials

placed on records before me that the petitioner was involved in misappropriation of various school’s fund and one of such fact was duly

highlighted in the order dt. 09.02.2017 passed by the concerned Block Development Officer. Unfortunately the petitioner who himself involved in

misappropriation of various school’s fund raised allegation against the TIC of the madrasah without any valid grounds which he during the course

of hearing cannot sustain by producing a single document.

It is no denying the fact that in case involving corruption there cannot be any other punishment than dismissal and any sympathy shown in such cases

is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large, it is the act of misappropriation that is relevant

and such fund is wholly based on the development of the student of the madrasah and in the instant case the petitioner was found guilty of

misappropriation of fund in all respect. An attitude to abuse the official position which the petitioner done while serving as secretary during his tenure

is a crime against the collective. Hence I request the madrasah authority to take such legal steps as it deem fit and proper against the petitioner in

order to get back the amount misappropriated by him during his tenure as secretary.â€​

So it is clear that the respondent No. 4 went on a roving enquiry while his jurisdiction in this matter was limited by the order of a coordinate Bench of

this Court to only consider and dispose of the writ petition; instead he went on a witch hunt and directed recovery of money from the writ petitioner

without even there being a formal application for the same made to him in this behalf by any person. He did not decide the moot question raised by the

writ petitioner in his representations.

More importantly the basis of his decision was that the writ petitioner was duly removed as the Secretary of the said Madrasah as appearing from the

order. However, in the entire order there is no mention that the respondent No. 4 ascertained whether the purported removal alleged to have been

effected by the Managing Committee by bringing a motion of no confidence was followed by approval of the Board which is the respondent No. 3 in

the writ petition. For understanding the scope of this power of removal of an elected office bearer, Rule 10(1) and Rule 10(2) of the Rules for

Management of Recognised Non-Government Madrasahs (aided and unaided) Rules 2002 are to be considered. These clearly due indicate that while

the Secretary of the Managing Committee is an elected office-bearer, and he can be removed by due resolution, it has to be approved by the

Respondent No.3 Board.

I asked Mr. Tarapada Halder, learned advocate appearing for the respondent No. 3, Board of Madrasah whether such approval was taken

subsequent to the so called removal of the petitioner. He submits that he has no instruction. I am informed that Md. Ghalib, learned counsel has been

briefed for respondent No. 4 in this matter but he is not present at the time of call though the writ petitioner has served the respondent no. 4 as

appears from the affidavit of service. The settled principles relating judicial review of any order passed by an administrative authority is that the order

must speak for itself and if any material has been relied upon to come to any conclusion the same must at the very least be referred to or be part of

the records available to that respondent when passing the order and this must at least appear from the records. The Respondent No. 4 has referred to

the Managing Committee’s resolution of removal of the writ petitioner from the post of Secretary; he has referred to the notice for the meeting

which was held on December 30, 2017; he has referred to the order passed by the Block Development Officer; but conspicuously he has not referred

to any resolution passed by the West Bengal Board of Madrasah Education which would show the so called removal of the petitioner was approved

by it. Even though post facto justification whether by affidavit or otherwise cannot be relied upon to validate an order which does not on its own show

the existence of any contemporaneous circumstance as would justify it, I believe that opportunity should be given to the respondents particularly the

respondent Nos. 3 and 4 to produce the records on the basis of which the respondent No. 3 came to the conclusion that the writ petitioner was duly

removed from the post of Secretary. Let the original records present before the respondent Nos. 3 and 4 at the time of passing of the order impugned,

be produced on the next date fixed.

The respondents could not, at this stage, satisfy the Court that the mandatory requirement for removal of the elected office bearer has been complied

with before purporting that the said office bearer has been removed. The fact of the election of the writ petitioner as Secretary is admitted; his

removal has been alleged to be on the basis of a resolution of the Managing Committee. There is nothing on record or even in the order impugned

which would show that Rule 10 sub-rules (1) and (2) as aforesaid, have been complied with. It is trite that where power is given under the Statute to

do a certain thing in a certain manner it must be done in such way or not at all. Any other way of doing such thing is necessarily to be deemed to be

prohibited. If any authority is required for this proposition, I shall rely upon Nazir Ahmedâ€"vâ€" King Emperor reported in AIR 1936 Privy Council

253, a decision of the Judicial Committee of the Privy Council. From the aforesaid it is clear, prima facie, that in this particular case the procedure

prescribed by the statutory rules has not been followed and, therefore, the act of removal of the writ petitioner appears to be procedurally ultra vires

which is a nullity. As such if such resolution of the Managing Committee has not been approved, any consequential action including the action of

removal of the Secretary is a nullity. No effect can be given to that which is prima facie a nullity. Therefore, the writ petitioner is entitled to all interim

orders as would ensure that a nullity is not continued in the interim period, including giving effect to the nullity. The interim reliefs prayed for, can be

modified by the writ court to ensure such result.

I find therefore, on the face of the record, a strong prima facie case in favour of the petitioner. The preponderance of balance of convenience is in

favour of the writ petitioner and the orders prayed for and as passed, being granted. There shall be, accordingly, the following interim orders and

directions:

a) The operation of the impugned order dated April 20, 2017 shall remain stayed until further orders or disposal of the writ petition whichever is

earlier;

b) The Bank account of the Madrasah in question shall be operated under the joint signatures of the writ petitioner and the present teacher in charge;

It is submitted that the new Secretary has already taken charge after the so called removal. Mr. Bhattacharyya, leaned advocate appearing for the

petitioner is given liberty to add the new Secretary to the writ petition in the capacity of purported Secretary of the Managing Committee as a party

respondent here and now. Learned advocate on record of the writ petitioner is given liberty to take appropriate steps for amendment of the cause title

before the Department within May 18, 2018 so that effect is given to the addition of party.

c) In view of the submissions made on behalf of the Managing Committee about the appointment of the new Secretary who is hereby made a party,

copies of the writ petition and this order shall also be served upon him by the learned advocate of the petitioner. Such added respondent/secretary is

restrained from functioning till disposal of the writ petition and or further orders;

Mr. Bhattacharyya, learned counsel appearing for the petitioner is given liberty to file supplementary affidavit bringing on record his objection to the

impugned order and the appointment of the new Secretary as alleged by the learned advocate appearing on behalf of the Managing Committee on

instructions. However, since allegations of corruption have been made, even though the same may be without jurisdiction, I find it a fit and proper case

to direct that in the event the cheques are presented to the Bank on the joint signatures of the writ petitioner and the teacher in charge, the Banks in

question shall, when honouring such cheques, issue intimation of the amounts which are sought to be withdrawn to the President of the Managing

Committee instead of Secretary and in the event that elections are held for reconstitution of the Managing Committee then to the President of the new

Managing Committee. Nothing in my order shall be considered to be a mandate for the present Managing Committee or its office-bearers to continue

indefinitely or as a mandate for the writ petitioner to continue as a joint signatory in respect of the Bank accounts, in case, a fresh election is held and

the Managing Committee is reconstituted where the writ petitioner is no longer an office bearer at all. I make it clear the writ petitioner shall be free to

contest the election for the post of office bearer in the Managing Committee and for membership of the Managing Committee in accordance with law,

if he is otherwise entitled to in respect of the category where he contests. In case of any difficulty, the parties are at liberty to mention.

Let this writ petition be listed again for hearing three weeks after Summer vacation. In the meanwhile the directions as above relating to amendment

of the cause title and filing of supplementary affidavit shall be completed. I make it clear that the matter shall appear again on 25th June, 2018 as

‘For Orders’ at 2 p.m. If on such date, the District Inspector of Schools is not represented with the records as aforesaid, the Court would be

constrained to draw an adverse inference and pass order in his absence. Mr. Bhattacharyya’s learned advocate on record shall serve notice upon

all non appearing respondents intimating the factum of this order. He shall also cause supplementary affidavit to be served on each of the respondents

whether through the learned advocate in case they have appeared or directly in case they have not appeared.

After passing of this order, learned counsel appearing for the Managing Committee expresses his apprehension that if one person amongst the joint

signatories refuses to sign then the administration of the school in question and the interests of the students thereof will suffer. He, therefore, prays for

appointment of a drawing and disbursing officer. According to me, this is a contingency which has not yet occurred and, therefore, as and when such

occasion arises, his client would be at liberty, without any formal application, to mention seeking appropriate orders and such mentioning shall only be

made with notice to Mr. Bhattacharyya’s client.