- (1.) FACTS The Mitra Institution (Main) is a well-known school in the Central Calcutta. The respondent was its Headmaster at the relevant period. The school charged him for embezzlement of fund that resulted in a criminal case being initiated against him. The criminal case was pending and he was facing the charges, inter alia, under Section of the Indian Penal Code. On May 3, 2010 the respondent filed a criminal case on the ground of alleged irregularity in school administration by the secretary and Assistant Headmaster in connivance with some of the teachers. On May 6, 2010 the secretary of the school put the respondent under suspension as a consequence of a meeting of the Managing Committee held on April 29, 2010. In or about July, 2010 the respondent challenged the order of suspension by filing a writ petition being W.P. No.10370 of 2010. The learned Single Judge vide judgment and order dated July 14, 2010 disposed of the writ petition by granting him leave to file a representation against the decision of the school to suspend him raising all points that were available to him in law except those decided by His Lordship in the said judgment and order. In terms of the liberty granted by the learned Single Judge, he filed a representation on July 20, 2010. The Board considered his representation in its meeting of the Executive Committee on August 19, 2010 and held that the resolution adopted by the Managing Committee dated April 29, 2010 could not be said to be invalid. In the meantime, on July 15, 2010 the school issued him a chargesheet asking him to show-cause as to the financial irregularity allegedly committed by him. He filed another writ petition being W.P. No.1261 of 2010. The learned Single Judge vide judgment and order dated October 6, 2010 gave direction for filing affidavits. His Lordship, however, declined to pass any interim order. The matter was heard upon affidavits. Another learned Judge heard the writ petition on several dates and disposed of the same by quashing the resolution dated April 29, 2010. The learned Single Judge held that the meeting had no quorum. Pertinent to note out of thirteen members, seven members were present and voted in favour of the resolution. The learned Judge held that one of the members present was a Departmental Nominee. He retired on August 31, 2009 and on such eventuality, he ceased to be a member of the said Committee. Hence, his presence was of no consequence. After holding that he stood disqualified to remain a member of the Committee. The learned Judge held that out of thirteen members, six members were present and voted in favour of the resolution that was below fifty per cent of the total number of members. Hence, there was no quorum. Being aggrieved, the Managing Committee preferred the instant appeal.
(2.) CONTENTION Mr. Sudip Ghosh, learned counsel appearing for the appellant, contended that so long the Departmental Nominee was not replaced by another member, his presence could not be disregarded. Mr. Ghosh relied on Rule 6A and 11 of the Management Rules to show that the view expressed by the learned Judge was erroneous as in terms of Rule 6A, the members to be nominated by the District Inspector of Schools under the first proviso shall be replaced by the District Inspector of Schools within thirty days from the date of election of members of different category. In case of a Panchayat Nominee, the member nominated from the local Panchayat under the first proviso shall be replaced by the local Panchayat within thirty days from the date of election of members from different category and they would continue to be the members unless replaced. According to him, as per Rule 6, one Departmental Nominee should be appointed through the District Inspector of Schools. Rule 11 prescribes procedure for filling up of casual vacancies. It provides that if any member failed to fulfill the qualification in respect of which he was elected, nominated or co-opted, he would cease to be a member and such vacancy would be filled up by the procedure laid down under Section 6A. As per Rule 11(4), any member elected, nominated or coopted in the casual vacancy shall hold office for the unexpired portion of the period. Rule 22 of the Election Rules would speak of Departmental Nominee which, inter alia, provides that within three days of declaration of result, the Head of the Institution or any person authorized by the District Inspector of Schools shall write to the District Inspector asking for Departmental Nominee. The constitution of the Managing Committee would be complete on the placement of the Departmental Nominee. Mr. Ghosh contended that no qualification was prescribed for a Departmental Nominee. Hence, the eventuality of his retirement had no relevance. He would only be considered as disqualified in case he was replaced by a new nominee or he was withdrawn by the District Inspector. The State should be deemed to have been represented by the Departmental Nominee. He further contended that there was no hard and fast rule and/or prescribed qualification as to who would be the Departmental Nominee. In this regard, he referred to the case of Sanat Roychowdhury Institution at 12/3, Gobinda Mukherjee Road, Calcutta 700 046 where one Naresh Chandra Jana, Head of the Department, Bengali, Calcutta University, was nominated as Departmental Nominee. He was admittedly not a State Government employee.
(3.) Per contra, Mr. Subir Sanyal, learned counsel appearing for the respondent, contended that the circular relied upon by Mr. Ghosh on the filling up of casual vacancy in case of Panchayat Nominee could not override the statutory provisions which would otherwise obligate the State to replace the Departmental Nominee on the retirement of the existing member who ceased to be a Departmental Nominee on his retirement. For instance, the case of guardian's representative, as per Rule 30, a guardian's representative would automatically disqualify himself or herself on his or her ward being passed out or having left the school for any reason. He also referred to Rule 10(3) which, inter alia, provides that quorum would denote fifty per cent of total number of members, fraction of any, being computed as one. He relied on two decisions of our Court being the case of Amarendra Nath Chatterjee Vs. Dwijendra Nath Halder and Ors. reported and an unreported decision in the case of Netai Chand Manna Vs. District Inspector of School (S.E.) Calcutta and Ors. dated June 11, 1992. He also relied on the Apex Court decision in the case of State through Narcotics Control Bureau Vs. Kulwant Singh, 2003 AIR(SC) 1599. He referred to paragraph 23 and 24 wherein the word "Department" was interpreted. According to the Apex Court, it would connote a branch or division of Government administration. It also observed, in absence of any precise definition, the word 'Department' must be given its natural and ordinary meaning unless the legal context would require a different meaning.;