P.K.Ray, J. - (1.) Heard the learned advocate appearing for the parties.
(2.) In the instant application the petitioner a teacher of Ramkrishna Mission High School, Post Office: Sagargachi, District: Murshidabad has challenged the order dated 28th April 2003 passed by the District Inspector of Schools (SE) Murshidabad whereby the petitioner's salary was withheld and the school authority was directed to submit fresh requisition of salary for the month of April, 2003 excluding the names of those teachers including the petitioner for release of salary. This writ application can be disposed of without directing to file an affidavit even, in view of gross illegality in the order itself which is ex- facie on record. The impugned decision of District Inspector of Schools in this writ application reads thus: SW1.htm
(3.) From the impugned decision of the District Inspector of Schools concerned, it appears that the said officer acted as per direction of the Hon'ble Education Minister of the State of West Bengal. Hence, this order is attracted by doctrine of "acting under dictation" in terms of the Administrative Law. It is a settle law that under the statutory provision only a statutory body has the right to take action. In the instant case, admittedly the petitioner was appointed following the Recruitment Rules issued by Director of School Education, West Bengal under Memo dated 26th November 1998 prescribed guidelines for appointment and recruitment of Assistant Teacher, Headmaster, etc. in the concerned school who has a special constitution. That rule has been annexed at page 49 of the writ application. It appears that the school authority was granted permission to appoint staff in terms of Recruitment Rule issued by Director of School Education, West Bengal. Under the special Constitution, and the guideline issued by Director of School Education, West Bengal, the petitioner was selected and empanelled by a Selection Committee and ultimately was appointed with effect from 1st February. 2003. Such appointment was approved by the District Inspector of Schools (SE) Murshidabad by his Memo dated 22nd April 2003 annexed at page 37 of the writ application. Under this special constitution as well as the Recruitment Rule, there is no such provision for withholding the payments of salary of any approved teacher. It is the Managing Committee who is to initiate a proceeding to withheld the salary and after hearing the concerned teacher and on giving proper opportunity of hearing, the same can be passed. The Minister-in- Charge of Education Department nowhere has been mentioned as the authority to direct withholding of payments of salary and further District Inspector of Schools concerned also has no authority to do such by his own action and/or by the dictation of the Minister-in-charge. No power vested upon the Education Minister in terms of statute to take any action and/or to dictate another officer to do something against approved staff. The District Inspector of Schools concerned acted illegally paying heed to the dictation of the Education Minister. The Education Minister has no power, right and jurisdiction to dictate the District Inspector of Schools concerned to do something. Furthermore, under the statutory provision once, petitioner's service has been approved by the District Inspector of Schools concerned, following the special constitution in question, until and unless the petitioner is penalised by any departmental proceeding, no salary could be stopped. In the instant case, hence applying the doctrine of "Acting under dictation" as well as applying the principle of violation of statutory rules the impugned decision accordingly is not legally sustainable. The principle of law under the doctrine of dictation is a settled law by several judgments of the apex Court as well as of the English Court. Reliance may be placed to the said judgments as noted below. It has been held by the judgment passed by the English Court as well as our apex Court that if someone acts under the dictation of other who is not statutorily empowered to dictate, the order is not only vitiated but it goes to the root of the matter. Reliance may be placed to the judgment in the case Simms Motor Units Ltd. v. Minister of Labour and National Service, reported in (1946)2 All ER 201. In that case, the Minister-in-charge under the Defence (General) Regulations, 1939, reg. 58A was vested with a right to confer power upon himself of his representative to issue orders. The National Service Officer under the order in terms of the statutory rule got a discretionary power to decide the case. But Minister-in-charge passed further instruction leaving no scope to exercise such discretion by the National Service Officer. As a resultant effect the reinstatement to the service to the concerned employee was vitiated. On that factual scenario, the impugned decision was quashed by the English Court applying the said doctrine. The similar situation arose in the cases of Rv. Police Complaints Board, Ex parte Madden, reported in (1983)2 All ER 353, wherein the Court applied said legal theory. In that case, a complaint against the police was filed before the Police complaints Board by virtue'-of section 2(1} of the Police Act, 1976. The Board was required to exercise its discretionary power for appropriate proceeding departmentally but unlawfully fettered the discretion which it had under section 3(2) of the 1976 Act by regarding itself as bound to comply with Secretary of State's guidance and thereby to accept the police decision not to institute disciplinary proceedings, since the object for which the Board was created was the consideration of complaints against Police Officers and natural justice required the Board itself to consider such complaints rather than to accept as binding the decision of another person, namely the director of Public Prosecution, not to prosecute an officer. The English Court applied the said doctrine and quashed the decision of the Board. Same point has been reechoed by another English case H. Lavender and Son Ltd. v. Minister of Housing and Local Government, reported in (1970)3 All ER 871. In that case H. Lavender and son Ltd. (supra) while under the law namely under section 23 of the Town and Country Planning Act, 1962, the appeal was required to disposed of on its merit by exercising the discretionary power by Minister of Housing and Local Government but the appeal was decided making the ground that the Minister of Agriculture, Fisheries and Food was opposed to working of such Housing Planning and till the embargo was not withdrawn, there was no question of grant planning permission. On that factual matrix, the Court held that the Minister of Housing and Local Government failed to exercise his discretionary power and accorded in terms of the dictation of the another Minister, though the statute provided him to reach in a positive decision in appeal in question under Town and Country Planning Act, 1962.;