Smt. Tapati Ghosh and anr. Vs. the State of West Bengal and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/858865
SubjectService
CourtKolkata High Court
Decided OnJan-18-2005
Case NumberA.S.T. No. 496 of 2004
JudgePratap Kumar Ray, J.
Reported in(2005)2CALLT275(HC),2005(3)ESC2113
ActsWest Bengal Board of Secondary Education Act, 1963 - Section 24; ;Management of Recognised Non-Government Institution (Aided and Unaided) Rules, 1969 - Rule 28(8)
AppellantSmt. Tapati Ghosh and anr.
RespondentThe State of West Bengal and ors.
Appellant AdvocateP.S. Basu and S. Talukdar, Advs.
Respondent AdvocateDipankar Datta and ;R. Chanda, Advs. for the Respondent No. 3 and ;Goutom Roy, Adv. for the Respondent No. 2
DispositionWrit Application allowed
Cases Referred and Bhavnagar University v. Palitana Sugar Mill
Excerpt:
- pratap kumar ray, j.1. in this writ application a very short question of law has been raised on the issue whether in terms of rule 28 sub-rule (8) of the rules of management of recognised non-government institution (aided and unaided) rules, 1969 hereinafter for brevity referred to as management rules of 1969, the west bengal board of secondary education and/or delegatee of such power as vested to a committee constituted under section 24 of the west bengal board of secondary education act, 1963, has the jurisdiction to provide personal hearing of the delinquent teacher as well as the administrator and/or managing committee of the school including its headmaster/ headmistress and/or teacher-in-charge as the case may be to consider the proposal for approval to initiate the disciplinary proceeding, which under the statute is called first stage of disciplinary proceeding.2. in the instant case, the writ petitioners who are in administration of the managing committee of the school, namely, the administrator and the headmistress of the school have challenged the notice dated 1st march, 2004 issued by deputy secretary (administration) of west bengal board of secondary education hereinafter for brevity referred to as said board, which is annexed at page 146 of the writ application, whereby and whereunder the writ petitioners and the delinquent staff were directed to appear with all relevant documents and papers before the section 24 committee to whom the power of approval as was initially vested with the said board was divested by application of the statutory provision.3. this writ application has been opposed by the west bengal board of secondary education by filling affidavit, contending, inter alia, that principle of natural justice demands a personal hearing of the delinquent staff, the administrator, who is holding the management of the school as well as the headmaster/headmistress of the school as the case may be irrespective of the fact that provision of such personal hearing is not provided in the statute while according approval of the proposal of the managing committee of the school to initiate disciplinary proceeding against the delinquent staff. for an answer to the question as raised in the writ application, the relevant statutory provisions are required to be dealt with first.4. rule 28(8) of the management rules of 1969 is the only provision to initiate appropriate departmental proceeding against teaching and non-teaching staff for imposition of punishment of removal and/or dismissal, which reads thus:'28(8). both in aided and unaided institutions the committee shall have the power, subject to the prior approval of the board, to remove or dismiss permanent or temporary teachers and other employees. for this purpose the committee shall first draw up formal proceedings and issue charge-sheet to the teacher or the employee concerned and offer him reasonable facility for defending himself. the teacher or the employee proposed to be proceeded against shall submit his explanation, ordinarily, within a fortnight of the receipt of the charge-sheet. the committee shall send to the board all relevant papers including the charge-sheet, explanations submitted by the teacher or the employee concerned and the reasons for which the committee decides in favour of taking disciplinary action. if the board considers that there are sufficient grounds for taking disciplinary action the committee shall issue formal notice calling upon the teacher or the employee concerned to show cause, ordinarily within a fortnight why he should not be dismissed or removed from service. the committee shall, then, send again to the board all relevant papers including the explanation submitted by the teacher or the employee concerned and the recommendations of the committee for the action proposed to be taken. so far as the committee is concerned, the decision of the board shall be final:provided that the board may delegate to any committee constituted under section 24 of the act the powers and functions conferred on the board by this sub rule.'5. however, under the said proviso it appears that the power of the board to accord approval was allowed to be delegated to any committee constituted under section 24 of the west bengal board of secondary education act, 1963, hereinafter for brevity referred to as the said act. section 24 of the said act reads thus:'24. other committees.--(1) the board may, with the approval of the state government, constitute such other committee or committees as it may think fit and any such committee may be composed wholly or in part of members of the board.(2) the board may, with the approval of the state government, delegate to any such committee any of its powers or functions and may in like manner withdraw from it any such power or function.'6. for effective processing of the disciplinary proceeding of any teaching and non-teaching staff of the school, a circular latter dated 21st june, 1982 was issued by west bengal board of secondary education providing different stages of such departmental proceeding, the said circular letter reads thus:'west bengal board of secondary education77/2 park street, calcutta-16no. s/607 dated, calcutta, the 21st june, 1982tothe management of all recognized non-government secondary institutions in the state.sub: proposal for obtaining approval in respect of disciplinary proceedings against any member of the teaching/non-teaching staff of secondary schools under rules 28(8) and (8a) of the management of recognized non-government institutions (aided and unaided) rules, 1969, as amended.the management of recognised secondary schools is hereby informed that in the matter of submission of proposal seeking board's approval for the initiation of disciplinary proceedings in respect of any member of the teaching/non- teaching staff of a school under rule 28(8) and (8a) of the management rules, the formalities as set below shall be observed:1. the school management shall initiate disciplinary proceedings against any member of the teaching/non-teaching staff of the school in two stages as noted hereunder:(a) first stage:the procedure of the 'first stage' shall comprise the following ad seriatim:(i) resolution of the managing committee containing the charges against the person to be proceeded against;(ii) formal charge-sheet to be issued to the person concerned, containing the articles of charges as per resolution of the managing committee;(iii) reply to the charge-sheet by the person proceeded against to be submitted to the managing committee ordinarily within a fortnight from the date of receipt of the charge-sheet;(iv) consideration of the reply by the managing committee and its decision thereon, with the underlying reasons for taking such decision to be stated in detail.the school management shall, thereafter, send to the board their proposal along with attested copies of all relevant papers coming within the scope of the 'first stage' above.if the board considers there are sufficient grounds for taking disciplinary action against the person concerned on the basis of papers submitted by the school and also papers that may be subsequently called for, if necessary, the board will accord first approval to the school's proposal for initiating disciplinary proceeding against him/her.in all cases, the board will acknowledge the school's letters on the subject at the earliest opportunity.if no communication from the board be received within one month of submission of the proposal regarding the punishment to be meted out to the teacher/non-teaching employee, the school concerned will meet the secretary of the board along with all relevant papers with a prayer for expeditious disposal of the case.(b) second stage:the procedure of the second stage, if necessary, shall comprise the following ad seriatim:(i) on receipt of the board's aforesaid approval, the managing committee shall issue a show-cause notice, on the basis of their resolution, to the person concerned ordinarily within a fortnight, specifying the nature of the punishment proposed to be awarded to him/her, as provided under rule 28(8) or (8a).(ii) on receipt of the person's reply to the show-cause notice, the managing committee shall consider the reply in its meeting and take a decision thereon in the form of a resolution.(iii) the school management shall thereafter forward all relevant papers as mentioned in (i) and (ii) above, to the board for consideration ordinarily within one month of the reply to the show-cause notice, as indicated under (b)(ii).the board will then consider the case in all its aspects, decide it finally and communicate its decision to the school authority for implementation. the decision of board on the matter is final and binding upon all concerned.2. the school management shall not remove any person from service or award any punishment without the prior approval of the board and without following the procedure indicated under rule 28(8) and/or (8a) of the management rules as elaborated in item 1 above.3. all communications relating to the aforesaid matter shall be sent to the secretary of the board by name, with the superscription 'disciplinary proceedings' written legibly on the envelope.4. in all cases, the board will acknowledge the school's letters on the subject at the earliest opportunity.5. if no communications from the board be received within one month of submission of the proposal regarding the punishment to be meted out to the teacher/non-teaching employee, theschool concerned will meet the secretary of the board along with all relevant papers with a prayer for expeditious disposal of the case.sd/- n. sinhasecretary.'7. the departmental proceeding as initiated being the subject matter of this writ, is at the first stage whereby the managing committee of the school sought approval to initiate appropriate disciplinary proceeding by sending the relevant documents, namely, the resolution of the managing committee contending the charges against the concerned non-teaching staff, the formal charge-sheet contending article of charges, reply of the charge-sheet by the staff concerned, consideration of the reply by the managing committee and thereby crystallization of a decision by proper resolution in the nature of a proposed decision for initiation of the departmental proceeding. all these papers and documents were duly referred to by the writ petitioners to the office of the said board for their necessary action for according approval of first stage of departmental proceeding, namely, to accord approval to initiate formal departmental proceeding against the staff concerned.8. from the records of the writ application it appears that the writ petitioners who are in the management of the school duly framed the charges against the delinquent non-teaching staff, who is respondent no. 3 in the writ application. further from the writ application it appears that such disciplinary proceeding was initiated by the managing committee of the school in terms of the judgment and order dated 10 november, 2003 passed in w.p. 3491(w) of 2001 by this court, which was affirmed by the division bench (coram: altamas kabir and asit kumar bisi, jj.) in m.a.t. 3620 of 2003 by passing the judgment dated 11th may, 2004. the judgment dated 10th november, 2003 passed in the aforesaid writ application, which is annexed at page 27 of the writ application reads thus:'heard the learned advocates appearing for the parties. the special officer who is now discharging has not discharged the function as administrator of the school has submitted a report being personally present before this court. in the writ petition the petitioners has prayed for necessary action against respondent nos. 6 to 9, but when the matter is taken up for hearing since the respondent nos. 6 to 8 have already corrected their action, the petitioner is not inclined to proceed against them. in that view, the names of the respondent nos. 6 to 8 are deleted from this proceeding. so far as the respondent no. 9 is concerned, the clerk of the concerned school, it is alleged by the writ petitioner who is the headmistress of the school that the said respondent no. 9 is not discharging his duties and thereby the school is suffering. a complaint was filed to that effect to the administrator, but nothing has been done as yet. on the other hand, the learned counsel for the respondent no. 9 submits that on the basis of the show cause as issued against respondent no. 9 the reply was rightly submitted. furthermore, it is contended that the district inspector of schools concerned had gone into the matter by holding necessary enquiry and the enquiry, which is already annexed in the affidavit-in-opposition and same which reveals that the charges as leveled against the respondent no. 9 by the writ petitioner, the headmistress, are not legally sustainable. be that as it may, since as yet no disciplinary proceeding has been initiated on the basis of the complaint, filed by the writ petitioner, the administrator is directed to initiate appropriate departmental proceeding by framing appropriate charge on the basis of the documents available to her, against the respondent no. 9 and thereby a full fledged departmental proceeding to be initiated completed upon giving proper opportunity of hearing to respondent no. 9. it is made clear that this court has not gone into the merits of the complaint as well as the other relevant factors and all points are kept open for decision by the administrator. the writ application along with the application for appropriate order are accordingly disposed of.the respondent no. 9 would be at liberty to place all the records before the administrator, viz., the report of the district inspector of schools concerned as well as other relevant documents which to be produced by parties will be considered. while adjudicating the disciplinary proceeding the administrator will also hear the complainant, the headmistress. such disciplinary proceeding be initiated within a week from this date and be completed within three months from the date of initiation. writ application is allowed.xerox certified copy of the order, if applied for, be given on urgent basis upon usual undertakings.'9. though the proposal for approval to initiate departmental proceeding against the said respondent no. 3, the clerk of the concerned school, was duly send to the office of the said board to complete the departmental proceeding within the time schedule as fixed by this court earlier while disposing of the earlier writ application, but it appears that the said board has kept the matter pending without deciding the issue of proposed initiation of departmental proceeding by according necessary approval. on the other hand, the section 24 committee, who was vested with the power of the said board to accord necessary approval to initiate disciplinary proceeding had served a notice to the delinquent clerk, respondent no. 3 and the headmistress of the concerned school as well as the administrator, who are now under management of the school to appear before them with all relevant documents for hearing, which is impugned in this writ application. the letter impugned in this writ application at page 146 of the writ application reads thus:'from:dy. secretary (administration), west bengal board of secondary education77/2, park street, calcutta-700 016.tothe administrator,jeeva shiva mission kiran chandra girls' high school,11/3, christopher road,kolkata-46.sub: proposal for approval to initiate disciplinary proceedings against sri tarun ganguly, clerk of the school.ref: your letter dated 5.1.2001sir,i am directed to request you to appear before the section 24 committee with all relevant documents connected with the above subject at 14-00 hrs. on tuesday, the 23rd march, 2004, at 77/2, park street, kolkata-16 for hearing.yours faithfully, sd/- p. barik deputy secretary (administration)memo no.: 24/185/c/1date: 01/03/04.copy forwarded to:regd. with a/d.: 1. the headmistress,jeeva shiva mission kiran ch. girls' school,11/3, christopher road,kolkata-46.-do- 2. sri tarun ganguly,1, jodhpur colony,kolkata-45.-- with request to appear before the section24 committee with all relevant documents on the aforesaid date and time at the board'smeeting for hearing.sd/-dy. secretary (administration)'10. the statutory provision to initiate a departmental proceeding is rule 28 sub-rule (8) of the management rules, 1969, as already quoted above, whereby and whereunder under different stages of departmental proceeding, at the first stage, the decision of the managing committee proposing to initiate a departmental proceeding on the charges, is required to be approved by the said board by itself or by its delegatee, section 24 committee. the statutory provision which is relevant under rule 28 sub-rule (8) for according approval of the first stage of departmental proceeding reads to this effect:'for this purpose the committee shall first draw up formal proceedings and issue charge-sheet to the teacher or the employee concerned and offer him reasonable facility for defending himself. the teacher or the employee proposed to be proceeded against shall submit his explanation, ordinarily, within a fortnight of the receipt of the charge-sheet. the committee shall send to the board all relevant papers including the charge-sheet, explanations submitted by the teacher or the employee concerned and the reasons for which the committee decides in favour of taking disciplinary action. if the board considers that there are sufficient grounds for taking disciplinary action the committee shall issue formal notice calling upon the teacher or the employee concerned to show cause, ordinarily within a fortnight why he should not be dismissed or removed from service.'11. in terms of the said circular letter dated 21st june, 1982 at the first stage of departmental proceeding, the relevant provision for seeking approval reads to this effect:'the school management shall, thereafter, send to the board their proposal along with attested copies of all relevant papers coming within the scope of the 'first stage' above.if the board considers there are sufficient grounds for taking disciplinary action against the person concerned on the basis of papers submitted by the school and also papers that may be subsequently called for, if necessary, the board will accord first approval to the school's proposal for initiating disciplinary proceeding against him/her.in all cases, the board will acknowledge the school's letters on the subject at the earliest opportunity.if no communication from the board be received within one month of submission of the proposal regarding the punishment to be meted out to the teacher/non-teaching employee, the school concerned will meet the secretary of the board along with all relevant papers with a prayer for expeditious disposal of the case.'12. on a bare reading of the aforesaid statutory provision namely rule 28(8) of the management rules, 1969, read with the circular letter providing procedures to accord approval of the first stage of departmental proceeding, it appears that there is no scope of any personal hearing of delinquent employee and/or managing committee of the school while according approval of the proposal of the managing committee to initiate departmental proceeding. the statutes and the circular letter by the language has categorically provided the only scope to accord approval of the first stage of departmental proceeding to the said board only on the basis of papers submitted by the school and also papers that may be subsequently called for, if necessary, by the board.13. hence, on a bare reading of the statutory provision read with the circular letter formulating the guideline to initiate departmental proceeding against any teaching or non-teaching staff of the school managed and controlled by management rules, 1969, it is crystal clear that only on the basis of the documentary evidence namely the papers as stipulated under column 'first stage' of the said circular letter namely, (i) resolution of the managing committee containing the charges against the person to be proceeded against; (ii) formal charge-sheet to be issued to the person concerned, containing the articles of charges as per resolution of the managing committee; (iii) reply to the charge-sheet by the person proceeded against to be submitted to the managing committee ordinarily within a fortnight from the date of receipt of the charge-sheet; (iv) consideration of the reply by the managing committee and its decision thereon, with the underlying reasons for taking such decision as to be stated in detail, the said board and/or delegatee section 24 committee to exercise the power of approval on behalf of the board, is required to deal with the matter. there is no scope of personal hearing while according approval. at the first stage, when the managing committee by a resolution intended to proceed departmentally against any teaching or non-teaching employee, the copy of such resolution is required to be served to the delinquent, who is legally entitled to reply of such proposed resolution to initiate departmental proceeding. on consideration of the reply of such proposed charge-sheet, the managing committee is required to take a formal resolution proposing initiation of departmental proceeding with reasons thereof and such proposal of the managing committee in the form of a resolution to proceed departmentally assigning the reasons on the basis of the reply of the delinquent only is required to be approved by the said board or the delegatee of such board, the section 24 committee.14. the power of the section 24 committee, who is the delegatee of the board, is limited only to the extent of consideration of the proposal of the managing committee to initiate departmental proceeding on the basis of the records namely the papers as would be submitted before said committee. the section 24 committee acts only as an approving authority of the proposal of the managing committee to initiate departmental proceeding on the basis of the available records namely the charge-sheet, the reply of the delinquent etc. as already referred to.15. in terms of the judgment of the division bench of this court passed in the case sujit das v. the west bengal board of secondary education, reported in 1997(2) clj 497, the delinquent employee even at the first stage is entitled to have an opportunity of hearing before the managing committee while, submitting his reply on the issue of first stage of departmental proceeding whereby the managing committee is vested to take a formal proposal to initiate departmental proceeding, subject to approval of the said board.16. the managing committee of the school under the statute management rules, 1969, is the sole authority to hear any delinquent. the board is only an approving authority to accord approval of the first stage of the departmental proceeding, which thereafter, will follow the second stage of proceeding and lastly the third stage of dismissal order, cannot usurp the power and jurisdiction of the managing committee to hear the delinquent and/or to ask any further papers and documents from the delinquent staff, which never was produced by the delinquent before the managing committee in reply to the show-cause of the managing committee at the first stage of departmental proceeding, which ultimately would culminate to a formal proposal of the managing committee to initiate a departmental proceeding. the approving authority is not an appellate authority to exercise all the powers of the original authority by accepting further evidence orally as well as in the form of papers and documents to accord approval of the first stage of departmental proceeding. the power of the approving authority is very limited in terms of the specific statutory provision to apply their mind on the issue as to whether the proposal of the managing committee to initiate departmental proceeding is justified on the basis of the resolution of the managing committee contending the charges against the delinquent, which would be a basis of formal charge-sheet as to be issued at the 2 stage of departmental proceeding, reply of the said charge-sheet as submitted by the delinquent and consideration of all those by the managing committee while taking a proposal in the form of a resolution of the managing committee to initiate departmental proceeding.17. hence, on the basis of the language used in the circular letter dated 21st june, 1982 read with rule 28(8) of the management rules, 1969, this court is of the view that there was no scope by the section 24 committee to hear the delinquent, the headmistress and the managing committee and/or the administrator of the school as the case may be while considering the proposal of the approval at the first stage of departmental proceeding.18. the principle of natural justice as urged by the learned advocate for the west bengal board of secondary education has no merit herein. while according approval of the resolution of the managing committee to initiate departmental proceeding, the board or the section 24 committee, the delegatee of the board, is simply exercising a function to test as to whether there are materials to proceed with the departmental proceeding formally, which would start from the second stage when the delinquent would get further opportunity to submit further reply, to examine himself before the managing committee, who under the statute is bound to appoint one enquiring officer and also to cross-examine the witnesses of the managing committee. hence, initiation of a departmental proceeding leading to the second stage after crossing the first stage with necessary approval, cannot be said as prejudicial to the interest of the delinquent employee, since the delinquent employee will get fullest and exhaustive opportunities to answer the formal charge-sheet as to be issued after the first stage as well as will get an opportunity to adduce evidence to prove his innocence in the matter, which includes examination of witnesses by him and cross-examination of the witnesses of the managing committee.19. according of approval of the proposal to initiate departmental proceeding at the first stage is not attracting the concept of civil consequences as delinquent employee is not suffering any penalty, on the other hand, if the argument of the learned advocate appearing for the said board is accepted that before according approval to initiate departmental proceeding at the first stage by the said board, natural justice principle to be followed by hearing the delinquent, it will practically lead to addition of certain powers and vesting of new jurisdiction to the section 24 committee, which the legislatures by their wisdom never intended to do. the legislatures made it very clear by stipulating the word that 'only on the basis of the papers submitted by the school and/or other papers as to be called for, the said or the delegatee section 24 committee will decide the issue'.20. approving authority never gets any power to function as original authority to hear the delinquent. approving authority always is required to act on the basis of the papers and documents as to be submitted before him. hence, the approving authority, the section 24 committee cannot extend his power and jurisdiction to act as an original authority to hear the delinquent.21. under the statutory provision, namely, rule 28 sub-rule (8) of the management rules, 1969 read with the division bench judgment sujit das (supra) whereby and whereunder the word 'reasonable facilities for defending' was extended by directing an elaborate departmental proceeding, namely, appointment of an enquiring officer, submission of formal charge-sheet, examination of witnesses and cross-examination of them etc. have given an ample broader scope to the delinquent to defend himself. in addition to that, if the approving authority is allowed to exercise those powers of hearing, the fate of departmental proceeding ultimately would be frustrated due to long drawn time consuming process. furthermore, the power of the managing committee also would be curtailed so far as their decision making process and entire decision making process will be centralized to the said board resulting the situation where managing committee will have no teeth to initiate any departmental proceeding against teaching and non-teaching staff, whatever it may be and such situation would be detrimental to the smooth functioning and running of the school administration.22. having regard to such when the legislatures did not intend to vest any power of personal hearing to the said board and/or section 24 committee, the delegatee of the board, while according approval of proposal of the managing committee at different stages, the section 24 committee cannot usurp such jurisdiction and power.23. it is a settled legal position that the statutory bodies created a statutes is required to perform the function in the manner as prescribed under a statute. a statutory body cannot function as per own, unless such power is vested. reliance may be placed to the judgment passed in the cases s.r. tewari v. the district board, agra now the antarim zila parishad, agra through its secretary and anr., reported in air 1964 sc 1680, municipal corporation v. sri niyamatullah, reported in 1969(2) scc 551, j.n. ganatra v. morvi municipality, morvi, reported in (1969)9 scc 495, maniruddin bepari v. the chairman of the municipal commissioners, dacca, reported in 40 cwn 17, sri k. ramadas shenoy v. the chief officers, town municipal council, udipi and ors., reported in (1974)2 scc 506 and bhavnagar university v. palitana sugar mill (p) ltd. and ors., reported in (2003)2 scc 111.24. a selected passage from the book 'the construction of statutes' by earl. t. crawford, 1940 edition at page 334 would be profitable to be quoted, which reads thus:'195. express mention and implied exclusion (expressio unius est exclusio alterius.--if a statute enumerates the things upon which it is to operate, everything else must necessarily, and by implication, be excluded from its operation and effect if the statute directs that certain acts shall be done in a specified manner, or by certain person, their performance in any other manner than that specified, or by any other person than one of those named, is impliedly prohibited.'25. since section 24 committee is a statutory body created under a statute being a delegatee of the west bengal board of secondary education, it cannot exercise any power, which are not vested under the statute, namely, the power of personal hearing of the delinquent and/or asking the delinquent to produce further documents. section 24 committees' power is limited only to scrutinize the documents as would be placed by the managing committee at the initial stage of approval of the proposal to initiate departmental proceeding. since the delinquent is not suffering any civil consequences, the legislatures at their wisdom did not provide any scope of personal hearing of the delinquent and/or direction, to produce further materials. delinquent is getting a chance to produce his further materials at the second stage of hearing before the managing committee not only by placing further documents in the form of reply of the show-cause but also by producing his witnesses and cross-examining the witnesses of the managing committee. second stage of the proceeding is a full proof departmental proceeding providing broader opportunity to defend by the delinquent.26. furthermore, the approving authority since cannot act as an original authority and since the section 24 committee is not vested with any power to consider original documents by asking the delinquent to produce and to hear him including the school administration, the impugned notice by the section 24 committee is de-hors of the statutory provision and accordingly the impugned notice being memo no. 24/185/c/1 dated 1st march, 2004 annexed at page 146 of this writ application is set aside and quashed.27. the west bengal board of secondary education and its delegatee, the section 24 committee, who is dealing with the issue on departmental proceeding is directed to take a decision on the basis of the documents as submitted by the managing committee of the school within 30 days from this date and to communicate that decision by special messenger to the managing committee of the school so that in terms of the judgment delivered by this court in earlier writ application being no. w.p. 3491(w) of 2001, the departmental proceeding is reached to finality. since, this court earlier limited this time to complete the departmental proceeding by three months, which has already expired, time to complete such proceeding is extended to further four months from this date. it is made clear that the managing committee, the board or the section 24 committee, whatever it may be will act promptly for necessary conclusion of the departmental proceeding by taking all relevant steps under the statute without causing any delay. writ application is accordingly allowed.28. since the respondent board unnecessarily delayed the departmental proceeding by usurping their power as original authority as vested to the managing committee by asking the delinquent to appear for hearing even at the first stage when the said section 24 committees' power is only limited to consider the relevant documents and papers submitted by the managing committee and thereby the school administration has been compelled to move this proceeding, a cost of rs. 5,000/- is imposed upon the said west bengal board of secondary education, which to be paid to the writ petitioners as a cost of this proceeding within a month from this date. writ application is thus allowed.let urgent xerox certified copy of this order, if applied for, be given to the learned advocate for the petitioner expeditiously.
Judgment:

Pratap Kumar Ray, J.

1. In this writ application a very short question of law has been raised on the issue whether in terms of Rule 28 Sub-rule (8) of the Rules of Management of Recognised Non-Government Institution (Aided and Unaided) Rules, 1969 hereinafter for brevity referred to as Management Rules of 1969, the West Bengal Board of Secondary Education and/or delegatee of such power as vested to a Committee constituted under Section 24 of the West Bengal Board of Secondary Education Act, 1963, has the jurisdiction to provide personal hearing of the delinquent teacher as well as the Administrator and/or Managing Committee of the school including its Headmaster/ Headmistress and/or Teacher-in-Charge as the case may be to consider the proposal for approval to initiate the disciplinary proceeding, which under the statute is called first stage of disciplinary proceeding.

2. In the instant case, the writ petitioners who are in administration of the Managing Committee of the school, namely, the Administrator and the Headmistress of the school have challenged the notice dated 1st March, 2004 issued by Deputy Secretary (Administration) of West Bengal Board of Secondary Education hereinafter for brevity referred to as said Board, which is annexed at page 146 of the writ application, whereby and whereunder the writ petitioners and the delinquent staff were directed to appear with all relevant documents and papers before the Section 24 Committee to whom the power of approval as was initially vested with the said Board was divested by application of the statutory provision.

3. This writ application has been opposed by the West Bengal Board of Secondary Education by filling affidavit, contending, inter alia, that principle of natural justice demands a personal hearing of the delinquent staff, the Administrator, who is holding the management of the school as well as the Headmaster/Headmistress of the school as the case may be irrespective of the fact that provision of such personal hearing is not provided in the statute while according approval of the proposal of the Managing Committee of the school to initiate disciplinary proceeding against the delinquent staff. For an answer to the question as raised in the writ application, the relevant statutory provisions are required to be dealt with first.

4. Rule 28(8) of the Management Rules of 1969 is the only provision to initiate appropriate departmental proceeding against teaching and non-teaching staff for imposition of punishment of removal and/or dismissal, which reads thus:

'28(8). Both in aided and unaided Institutions the Committee shall have the power, subject to the prior approval of the Board, to remove or dismiss permanent or temporary teachers and other employees. For this purpose the Committee shall first draw up formal proceedings and issue charge-sheet to the teacher or the employee concerned and offer him reasonable facility for defending himself. The teacher or the employee proposed to be proceeded against shall submit his explanation, ordinarily, within a fortnight of the receipt of the charge-sheet. The committee shall send to the Board all relevant papers including the charge-sheet, explanations submitted by the teacher or the employee concerned and the reasons for which the Committee decides in favour of taking disciplinary action. If the Board considers that there are sufficient grounds for taking disciplinary action the Committee shall issue formal notice calling upon the teacher or the employee concerned to show cause, ordinarily within a fortnight why he should not be dismissed or removed from service. The Committee shall, then, send again to the Board all relevant papers including the explanation submitted by the teacher or the employee concerned and the recommendations of the Committee for the action proposed to be taken. So far as the Committee is concerned, the decision of the Board shall be final:

Provided that the Board may delegate to any Committee constituted under Section 24 of the Act the powers and functions conferred on the Board by this sub rule.'

5. However, under the said proviso it appears that the power of the Board to accord approval was allowed to be delegated to any Committee constituted under Section 24 of the West Bengal Board of Secondary Education Act, 1963, hereinafter for brevity referred to as the said Act. Section 24 of the said Act reads thus:

'24. Other Committees.--(1) The Board may, with the approval of the State Government, constitute such other Committee or Committees as it may think fit and any such Committee may be composed wholly or in part of members of the Board.

(2) The Board may, with the approval of the State Government, delegate to any such Committee any of its powers or functions and may in like manner withdraw from it any such power or function.'

6. For effective processing of the disciplinary proceeding of any teaching and non-teaching staff of the school, a circular latter dated 21st June, 1982 was issued by West Bengal Board of Secondary Education providing different stages of such departmental proceeding, the said circular letter reads thus:

'WEST BENGAL BOARD OF SECONDARY EDUCATION

77/2 Park Street, Calcutta-16

No. S/607 Dated, Calcutta, the 21st June, 1982To

The Management of All Recognized Non-Government Secondary Institutions in the State.

Sub: Proposal for obtaining approval in respect of disciplinary proceedings against any member of the teaching/non-teaching staff of secondary schools under Rules 28(8) and (8a) of the Management of Recognized Non-Government Institutions (Aided and Unaided) Rules, 1969, as amended.The Management of recognised secondary schools is hereby informed that in the matter of submission of proposal seeking Board's approval for the initiation of disciplinary proceedings in respect of any member of the teaching/non- teaching staff of a school under Rule 28(8) and (8a) of the Management Rules, the formalities as set below shall be observed:

1. The school management shall initiate disciplinary proceedings against any member of the teaching/non-teaching staff of the school in two stages as noted hereunder:

(a) First stage:

The procedure of the 'first stage' shall comprise the following ad seriatim:

(i) Resolution of the Managing Committee containing the charges against the person to be proceeded against;

(ii) Formal charge-sheet to be issued to the person concerned, containing the articles of charges as per resolution of the Managing Committee;

(iii) Reply to the charge-sheet by the person proceeded against to be submitted to the Managing Committee ordinarily within a fortnight from the date of receipt of the charge-sheet;

(iv) Consideration of the reply by the Managing Committee and its decision thereon, with the underlying reasons for taking such decision to be stated in detail.

The school management shall, thereafter, send to the Board their proposal along with attested copies of all relevant papers coming within the scope of the 'First Stage' above.

If the Board considers there are sufficient grounds for taking disciplinary action against the person concerned on the basis of papers submitted by the school and also papers that may be subsequently called for, if necessary, the Board will accord first approval to the school's proposal for initiating disciplinary proceeding against him/her.

In all cases, the Board will acknowledge the school's letters on the subject at the earliest opportunity.

If no communication from the board be received within one month of submission of the proposal regarding the punishment to be meted out to the teacher/non-teaching employee, the school concerned will meet the Secretary of the Board along with all relevant papers with a prayer for expeditious disposal of the case.

(b) Second stage:

The procedure of the second stage, if necessary, shall comprise the following ad seriatim:

(i) on receipt of the Board's aforesaid approval, the Managing Committee shall issue a show-cause notice, on the basis of their resolution, to the person concerned ordinarily within a fortnight, specifying the nature of the punishment proposed to be awarded to him/her, as provided under Rule 28(8) or (8a).

(ii) On receipt of the person's reply to the show-cause notice, the Managing Committee shall consider the reply in its meeting and take a decision thereon in the form of a resolution.

(iii) The school management shall thereafter forward all relevant papers as mentioned in (i) and (ii) above, to the Board for consideration ordinarily within one month of the reply to the show-cause notice, as indicated under (b)(ii).

The Board will then consider the case in all its aspects, decide it finally and communicate its decision to the school authority for implementation. The decision of Board on the matter is final and binding upon all concerned.

2. The school management shall not remove any person from service or award any punishment without the prior approval of the Board and without following the procedure indicated under Rule 28(8) and/or (8a) of the Management Rules as elaborated in item 1 above.

3. All communications relating to the aforesaid matter shall be sent to the Secretary of the Board by name, with the superscription 'Disciplinary Proceedings' written legibly on the envelope.

4. In all cases, the Board will acknowledge the school's letters on the subject at the earliest opportunity.

5. If no communications from the Board be received within one month of submission of the proposal regarding the punishment to be meted out to the teacher/non-teaching employee, the

school concerned will meet the Secretary of the Board along with all relevant papers with a prayer for expeditious disposal of the case.

Sd/- N. Sinha

Secretary.'

7. The departmental proceeding as initiated being the subject matter of this writ, is at the first stage whereby the Managing Committee of the school sought approval to initiate appropriate disciplinary proceeding by sending the relevant documents, namely, the resolution of the Managing Committee contending the charges against the concerned non-teaching staff, the formal charge-sheet contending article of charges, reply of the charge-sheet by the staff concerned, consideration of the reply by the Managing Committee and thereby crystallization of a decision by proper resolution in the nature of a proposed decision for initiation of the departmental proceeding. All these papers and documents were duly referred to by the writ petitioners to the office of the said Board for their necessary action for according approval of first stage of departmental proceeding, namely, to accord approval to initiate formal departmental proceeding against the staff concerned.

8. From the records of the writ application it appears that the writ petitioners who are in the management of the school duly framed the charges against the delinquent non-teaching staff, who is respondent No. 3 in the writ application. Further from the writ application it appears that such disciplinary proceeding was initiated by the Managing Committee of the school in terms of the judgment and order dated 10 November, 2003 passed in W.P. 3491(W) of 2001 by this Court, which was affirmed by the Division Bench (Coram: Altamas Kabir and Asit Kumar Bisi, JJ.) in M.A.T. 3620 of 2003 by passing the judgment dated 11th May, 2004. The judgment dated 10th November, 2003 passed in the aforesaid writ application, which is annexed at page 27 of the writ application reads thus:

'Heard the learned advocates appearing for the parties. The Special Officer who is now discharging has not discharged the function as Administrator of the School has submitted a report being personally present before this Court. In the writ petition the petitioners has prayed for necessary action against respondent Nos. 6 to 9, but when the matter is taken up for hearing since the respondent Nos. 6 to 8 have already corrected their action, the petitioner is not inclined to proceed against them. In that view, the names of the respondent Nos. 6 to 8 are deleted from this proceeding. So far as the respondent No. 9 is concerned, the clerk of the concerned school, it is alleged by the writ petitioner who is the Headmistress of the school that the said respondent No. 9 is not discharging his duties and thereby the school is suffering. A complaint was filed to that effect to the Administrator, but nothing has been done as yet. On the other hand, the learned counsel for the respondent No. 9 submits that on the basis of the show cause as issued against respondent No. 9 the reply was rightly submitted. Furthermore, it is contended that the District Inspector of Schools concerned had gone into the matter by holding necessary enquiry and the enquiry, which is already annexed in the affidavit-in-opposition and same which reveals that the charges as leveled against the respondent No. 9 by the writ petitioner, the Headmistress, are not legally sustainable. Be that as it may, since as yet no disciplinary proceeding has been initiated on the basis of the complaint, filed by the writ petitioner, the Administrator is directed to initiate appropriate departmental proceeding by framing appropriate charge on the basis of the documents available to her, against the respondent No. 9 and thereby a full fledged departmental proceeding to be initiated completed upon giving proper opportunity of hearing to respondent No. 9. It is made clear that this Court has not gone into the merits of the complaint as well as the other relevant factors and all points are kept open for decision by the Administrator. The writ application along with the application for appropriate order are accordingly disposed of.

The respondent No. 9 would be at liberty to place all the records before the Administrator, viz., the report of the district inspector of schools concerned as well as other relevant documents which to be produced by parties will be considered. While adjudicating the disciplinary proceeding the Administrator will also hear the complainant, the Headmistress. Such disciplinary proceeding be initiated within a week from this date and be completed within three months from the date of initiation. Writ application is allowed.

Xerox certified copy of the order, if applied for, be given on urgent basis upon usual undertakings.'

9. Though the proposal for approval to initiate departmental proceeding against the said respondent No. 3, the Clerk of the concerned school, was duly send to the office of the said Board to complete the departmental proceeding within the time schedule as fixed by this Court earlier while disposing of the earlier writ application, but it appears that the said Board has kept the matter pending without deciding the issue of proposed initiation of departmental proceeding by according necessary approval. On the other hand, the Section 24 Committee, who was vested with the power of the said Board to accord necessary approval to initiate disciplinary proceeding had served a notice to the delinquent Clerk, respondent No. 3 and the Headmistress of the concerned school as well as the Administrator, who are now under management of the school to appear before them with all relevant documents for hearing, which is impugned in this writ application. The letter impugned in this writ application at page 146 of the writ application reads thus:

'From:

Dy. Secretary (Administration), West Bengal Board of Secondary Education

77/2, Park Street, Calcutta-700 016.

To

The Administrator,

Jeeva Shiva Mission Kiran Chandra Girls' High School,

11/3, Christopher Road,

Kolkata-46.

Sub: Proposal for approval to initiate disciplinary proceedings against Sri Tarun Ganguly, Clerk of the school.

Ref: Your letter dated 5.1.2001

Sir,

I am directed to request you to appear before the Section 24 Committee with all relevant documents connected with the above subject at 14-00 hrs. on Tuesday, the 23rd March, 2004, at 77/2, Park Street, Kolkata-16 for hearing.

Yours faithfully,

Sd/- P. Barik

Deputy Secretary (Administration)

Memo No.: 24/185/c/1

Date: 01/03/04.

Copy forwarded to:

Regd. With A/D.: 1. The Headmistress,Jeeva Shiva Mission Kiran Ch. Girls' School,11/3, Christopher Road,Kolkata-46.-do- 2. Sri Tarun Ganguly,1, Jodhpur Colony,Kolkata-45.-- With request to appear before the Section24 Committee with all relevant documents on the aforesaid date and time at the Board'smeeting for hearing.Sd/-

Dy. Secretary (Administration)'

10. The statutory provision to initiate a departmental proceeding is Rule 28 Sub-rule (8) of the Management Rules, 1969, as already quoted above, whereby and whereunder under different stages of departmental proceeding, at the first stage, the decision of the Managing Committee proposing to initiate a departmental proceeding on the charges, is required to be approved by the said Board by itself or by its delegatee, Section 24 Committee. The statutory provision which is relevant under Rule 28 Sub-rule (8) for according approval of the first stage of departmental proceeding reads to this effect:

'For this purpose the Committee shall first draw up formal proceedings and issue charge-sheet to the teacher or the employee concerned and offer him reasonable facility for defending himself. The teacher or the employee proposed to be proceeded against shall submit his explanation, ordinarily, within a fortnight of the receipt of the charge-sheet. The committee shall send to the Board all relevant papers including the charge-sheet, explanations submitted by the teacher or the employee concerned and the reasons for which the Committee decides in favour of taking disciplinary action. If the Board considers that there are sufficient grounds for taking disciplinary action the Committee shall issue formal notice calling upon the teacher or the employee concerned to show cause, ordinarily within a fortnight why he should not be dismissed or removed from service.'

11. In terms of the said circular letter dated 21st June, 1982 at the first stage of departmental proceeding, the relevant provision for seeking approval reads to this effect:

'The school management shall, thereafter, send to the Board their proposal along with attested copies of all relevant papers coming within the scope of the 'First Stage' above.

If the Board considers there are sufficient grounds for taking disciplinary action against the person concerned on the basis of papers submitted by the school and also papers that may be subsequently called for, if necessary, the Board will accord first approval to the school's proposal for initiating disciplinary proceeding against him/her.

In all cases, the Board will acknowledge the school's letters on the subject at the earliest opportunity.

If no communication from the board be received within one month of submission of the proposal regarding the punishment to be meted out to the teacher/non-teaching employee, the school concerned will meet the Secretary of the Board along with all relevant papers with a prayer for expeditious disposal of the case.'

12. On a bare reading of the aforesaid statutory provision namely Rule 28(8) of the Management Rules, 1969, read with the circular letter providing procedures to accord approval of the first stage of departmental proceeding, it appears that there is no scope of any personal hearing of delinquent employee and/or Managing Committee of the school while according approval of the proposal of the Managing Committee to initiate departmental proceeding. The statutes and the circular letter by the language has categorically provided the only scope to accord approval of the first stage of departmental proceeding to the said Board only on the basis of papers submitted by the school and also papers that may be subsequently called for, if necessary, by the Board.

13. Hence, on a bare reading of the statutory provision read with the circular letter formulating the guideline to initiate departmental proceeding against any teaching or non-teaching staff of the school managed and controlled by Management Rules, 1969, it is crystal clear that only on the basis of the documentary evidence namely the papers as stipulated under column 'First stage' of the said circular letter namely, (i) Resolution of the Managing Committee containing the charges against the person to be proceeded against; (ii) Formal charge-sheet to be issued to the person concerned, containing the articles of charges as per resolution of the Managing Committee; (iii) Reply to the charge-sheet by the person proceeded against to be submitted to the Managing Committee ordinarily within a fortnight from the date of receipt of the charge-sheet; (iv) Consideration of the reply by the Managing Committee and its decision thereon, with the underlying reasons for taking such decision as to be stated in detail, the said Board and/or delegatee Section 24 Committee to exercise the power of approval on behalf of the Board, is required to deal with the matter. There is no scope of personal hearing while according approval. At the first stage, when the Managing Committee by a resolution intended to proceed departmentally against any teaching or non-teaching employee, the copy of such resolution is required to be served to the delinquent, who is legally entitled to reply of such proposed resolution to initiate departmental proceeding. On consideration of the reply of such proposed charge-sheet, the Managing Committee is required to take a formal resolution proposing initiation of departmental proceeding with reasons thereof and such proposal of the Managing Committee in the form of a resolution to proceed departmentally assigning the reasons on the basis of the reply of the delinquent only is required to be approved by the said Board or the delegatee of such Board, the Section 24 Committee.

14. The power of the Section 24 Committee, who is the delegatee of the Board, is limited only to the extent of consideration of the proposal of the Managing Committee to initiate departmental proceeding on the basis of the records namely the papers as would be submitted before said Committee. The Section 24 Committee acts only as an approving authority of the proposal of the Managing Committee to initiate departmental proceeding on the basis of the available records namely the charge-sheet, the reply of the delinquent etc. as already referred to.

15. In terms of the judgment of the Division Bench of this Court passed in the case Sujit Das v. The West Bengal Board of Secondary Education, reported in 1997(2) CLJ 497, the delinquent employee even at the first stage is entitled to have an opportunity of hearing before the Managing Committee while, submitting his reply on the issue of first stage of departmental proceeding whereby the Managing Committee is vested to take a formal proposal to initiate departmental proceeding, subject to approval of the said Board.

16. The Managing Committee of the school under the statute Management Rules, 1969, is the sole authority to hear any delinquent. The Board is only an approving authority to accord approval of the first stage of the departmental proceeding, which thereafter, will follow the second stage of proceeding and lastly the third stage of dismissal order, cannot usurp the power and jurisdiction of the Managing Committee to hear the delinquent and/or to ask any further papers and documents from the delinquent staff, which never was produced by the delinquent before the Managing Committee in reply to the show-cause of the Managing Committee at the first stage of departmental proceeding, which ultimately would culminate to a formal proposal of the Managing Committee to initiate a departmental proceeding. The approving authority is not an appellate authority to exercise all the powers of the original authority by accepting further evidence orally as well as in the form of papers and documents to accord approval of the first stage of departmental proceeding. The power of the approving authority is very limited in terms of the specific statutory provision to apply their mind on the issue as to whether the proposal of the Managing Committee to initiate departmental proceeding is justified on the basis of the resolution of the Managing Committee contending the charges against the delinquent, which would be a basis of formal charge-sheet as to be issued at the 2 stage of departmental proceeding, reply of the said charge-sheet as submitted by the delinquent and consideration of all those by the Managing Committee while taking a proposal in the form of a resolution of the Managing Committee to initiate departmental proceeding.

17. Hence, on the basis of the language used in the circular letter dated 21st June, 1982 read with Rule 28(8) of the Management Rules, 1969, this Court is of the view that there was no scope by the Section 24 Committee to hear the delinquent, the Headmistress and the Managing Committee and/or the Administrator of the school as the case may be while considering the proposal of the approval at the first stage of departmental proceeding.

18. The principle of natural justice as urged by the learned advocate for the West Bengal Board of Secondary Education has no merit herein. While according approval of the resolution of the Managing Committee to initiate departmental proceeding, the Board or the Section 24 Committee, the delegatee of the Board, is simply exercising a function to test as to whether there are materials to proceed with the departmental proceeding formally, which would start from the second stage when the delinquent would get further opportunity to submit further reply, to examine himself before the Managing Committee, who under the statute is bound to appoint one enquiring officer and also to cross-examine the witnesses of the Managing Committee. Hence, initiation of a departmental proceeding leading to the second stage after crossing the first stage with necessary approval, cannot be said as prejudicial to the interest of the delinquent employee, since the delinquent employee will get fullest and exhaustive opportunities to answer the formal charge-sheet as to be issued after the first stage as well as will get an opportunity to adduce evidence to prove his innocence in the matter, which includes examination of witnesses by him and cross-examination of the witnesses of the Managing Committee.

19. According of approval of the proposal to initiate departmental proceeding at the first stage is not attracting the concept of civil consequences as delinquent employee is not suffering any penalty, on the other hand, if the argument of the learned advocate appearing for the said Board is accepted that before according approval to initiate departmental proceeding at the first stage by the said Board, natural justice principle to be followed by hearing the delinquent, it will practically lead to addition of certain powers and vesting of new jurisdiction to the Section 24 Committee, which the legislatures by their wisdom never intended to do. The legislatures made it very clear by stipulating the word that 'only on the basis of the papers submitted by the school and/or other papers as to be called for, the said or the delegatee Section 24 Committee will decide the issue'.

20. Approving Authority never gets any power to function as original authority to hear the delinquent. Approving Authority always is required to act on the basis of the papers and documents as to be submitted before him. Hence, the approving authority, the Section 24 Committee cannot extend his power and jurisdiction to act as an original authority to hear the delinquent.

21. Under the statutory provision, namely, Rule 28 Sub-rule (8) of the Management Rules, 1969 read with the Division Bench judgment Sujit Das (supra) whereby and whereunder the word 'reasonable facilities for defending' was extended by directing an elaborate departmental proceeding, namely, appointment of an Enquiring Officer, submission of formal charge-sheet, examination of witnesses and cross-examination of them etc. have given an ample broader scope to the delinquent to defend himself. In addition to that, if the approving authority is allowed to exercise those powers of hearing, the fate of departmental proceeding ultimately would be frustrated due to long drawn time consuming process. Furthermore, the power of the Managing Committee also would be curtailed so far as their decision making process and entire decision making process will be centralized to the said Board resulting the situation where Managing Committee will have no teeth to initiate any departmental proceeding against teaching and non-teaching staff, whatever it may be and such situation would be detrimental to the smooth functioning and running of the school administration.

22. Having regard to such when the legislatures did not intend to vest any power of personal hearing to the said Board and/or Section 24 Committee, the delegatee of the Board, while according approval of proposal of the Managing Committee at different stages, the Section 24 Committee cannot usurp such jurisdiction and power.

23. It is a settled legal position that the statutory bodies created a statutes is required to perform the function in the manner as prescribed under a statute. A statutory body cannot function as per own, unless such power is vested. Reliance may be placed to the judgment passed in the cases S.R. Tewari v. The District Board, Agra now the Antarim Zila Parishad, Agra through its Secretary and Anr., reported in AIR 1964 SC 1680, Municipal Corporation v. Sri Niyamatullah, reported in 1969(2) SCC 551, J.N. Ganatra v. Morvi Municipality, Morvi, reported in (1969)9 SCC 495, Maniruddin Bepari v. The Chairman of the Municipal Commissioners, Dacca, reported in 40 CWN 17, Sri K. Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and Ors., reported in (1974)2 SCC 506 and Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors., reported in (2003)2 SCC 111.

24. A selected passage from the book 'The Construction of Statutes' by Earl. T. Crawford, 1940 Edition at page 334 would be profitable to be quoted, which reads thus:

'195. Express Mention and Implied Exclusion (Expressio Unius Est Exclusio Alterius.--if a statute enumerates the things upon which it is to operate, everything else must necessarily, and by implication, be excluded from its operation and effect if the statute directs that certain acts shall be done in a specified manner, or by certain person, their performance in any other manner than that specified, or by any other person than one of those named, is impliedly prohibited.'

25. Since Section 24 Committee is a statutory body created under a statute being a delegatee of the West Bengal Board of Secondary Education, it cannot exercise any power, which are not vested under the statute, namely, the power of personal hearing of the delinquent and/or asking the delinquent to produce further documents. Section 24 Committees' power is limited only to scrutinize the documents as would be placed by the Managing Committee at the initial stage of approval of the proposal to initiate departmental proceeding. Since the delinquent is not suffering any civil consequences, the legislatures at their wisdom did not provide any scope of personal hearing of the delinquent and/or direction, to produce further materials. Delinquent is getting a chance to produce his further materials at the second stage of hearing before the Managing Committee not only by placing further documents in the form of reply of the show-cause but also by producing his witnesses and cross-examining the witnesses of the Managing Committee. Second stage of the proceeding is a full proof departmental proceeding providing broader opportunity to defend by the delinquent.

26. Furthermore, the Approving Authority since cannot act as an original authority and since the Section 24 Committee is not vested with any power to consider original documents by asking the delinquent to produce and to hear him including the school administration, the impugned notice by the Section 24 Committee is de-hors of the statutory provision and accordingly the impugned notice being memo No. 24/185/C/1 dated 1st March, 2004 annexed at page 146 of this writ application is set aside and quashed.

27. The West Bengal Board of Secondary Education and its delegatee, the Section 24 Committee, who is dealing with the issue on departmental proceeding is directed to take a decision on the basis of the documents as submitted by the Managing Committee of the school within 30 days from this date and to communicate that decision by Special Messenger to the Managing Committee of the school so that in terms of the judgment delivered by this Court in earlier writ application being No. W.P. 3491(W) of 2001, the departmental proceeding is reached to finality. Since, this Court earlier limited this time to complete the departmental proceeding by three months, which has already expired, time to complete such proceeding is extended to further four months from this date. It is made clear that the Managing Committee, the Board or the Section 24 Committee, whatever it may be will act promptly for necessary conclusion of the departmental proceeding by taking all relevant steps under the statute without causing any delay. Writ application is accordingly allowed.

28. Since the respondent Board unnecessarily delayed the departmental proceeding by usurping their power as original authority as vested to the Managing Committee by asking the delinquent to appear for hearing even at the first stage when the said Section 24 Committees' power is only limited to consider the relevant documents and papers submitted by the Managing Committee and thereby the school administration has been compelled to move this proceeding, a cost of Rs. 5,000/- is imposed upon the said West Bengal Board of Secondary Education, which to be paid to the writ petitioners as a cost of this proceeding within a month from this date. Writ application is thus allowed.

Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocate for the petitioner expeditiously.