Posted On by &filed under Calcutta High Court, High Court.


Calcutta High Court
Bejoy Chandra Saha And Anr. vs State Of West Bengal And Ors. on 3 November, 2000
Equivalent citations: AIR 2001 Cal 1
Author: M Ansari
Bench: M Ansari


ORDER

M.H.S. Ansari, J.

1. The instant writ petition is filed by the Secretary of Managing Committee and the Headmaster of Baharal P. I. S. High School.

2. According to the petitioners, the tenure of the Managing Committee has been extended from time to time and last such extension is up to 31-10-2000. The Managing Committe made applications before the Board for Extension of the term of the Managing Committee and no action having been taken thereon by the Board, a writ application was filed being W.P. No. 5769/(W) of 2000 which was disposed of by an order dated 10-5-2000 inter alia, directing the Board to treat the writ application as representation and to consider the same upon giving an opportunity of hearing to the petitioners and by passing a reasoned order within 6 weeks from the date of communication of the said order.

3. Pursuant to the aforesaid order of Court, the Board took up the matter and fixed 10-7-2000 as the date of hearing. On the said date, however, the petitioners did not appear and instead made a prayer for adjournment of 6 weeks by their letter dated 7-7-2000 which, it is averred, was submitted to the office of the Board at 10.30 a.m. on 10-7-2000 (Annex. P-11). It is further averred that on 11-7-2000 Assistant Inspector of Schools handed over a copy of the Telegram sent by the Board to the petitioner No. 2 (Headmaster) who was on leave on 11-7-2000 when he joined school on 12-7-2000.

4. By the said Telegram intimation was given that the hearing had been adjourned by the Board to 12 (18)-7-2000. On that date, the Board, it appears heard the matter and its order was communicated to the petitioners by Memo No. 2768/G/1-6, dated 24-7-2000. By that said impugned order, the matter before the Board was disposed of holding that the status of the Managing

Committee is unauthorised since it did not satisfy the conditions of the Board circular particularly dated 7-4-2000. The tenure of the Managing Committee, it was observed in the order had expired on 26-9-96 and the elections held on 27-7-97 for reconstituting the Managing Committee had been set aside by the High Court. As a vacuum had been created thereby, an administrator was appointed to manage the affairs of the institution in question.

5. The petitioners have assailed the impugned order passed by the Board mainly on the ground that it is violative of principles of natural justice in that the petitioners had been denied an opportunity of being heard in the matter. The telegram intimating the adjourned date of hearing (12-7-2000) was received by the petitioners in the afternoon by which time the hearing had been concluded by the Board.

6. Ms. Karabi Gangopadhyay, learned Advocate appearing for the respondent No. 4, i.e. Secretary, West Bengal Board of Secretary Education, however, contended that the petitioners had been afforded an opportunity of hearing which they failed to avail and cannot, therefore, complain of violation of principles of natural justice. It is not disputed, it was submitted by Ms. Gangopadhyay, that the petitioners had been informed of the hearing fixed for 10-7-2000 and on that date, the petitioners chose not to appear before the Board and instead filed an application for adjournment by 6 weeks. The order of High Court in W.P. No. 5769(W) of 2000 specifically stipulated that the hearing should be completed within 6 weeks from the date of communication of the order. The said order was communicated to the Board by the letter of the counsel of the petitioners dated 13-6-2000 received on 14-6-2000 (Annex. P) and, therefore, the matter was required to be disposed of by 20-7-2000 to comply with the time frame stipulated by the Court. Ms. Gangopadhyay also relied upon the judgments in Nagendra Nath Shah v. State of West Bengal, and Wazir Brothers v. Commercial Tax Officer, Burdwan .

7. The short point for consideration is whether the impugned order is one passed in violation of principles of natural justice and on that ground is liable to be declared void.

8. As already noticed, the matter was required to be considered by the Board pursuant to a direction of High Court in W.P. No. 5769(W) of 2000. The matter was required to be disposed of by the Board within the time frame stipulated by Court. The hearing of the matter was fixed by the Board on 10-7-2000. The petitioners were aware of the said date of hearing and did not appear personally before the Board on the said date instead an application was filed in the office of the Board praying for adjournment. The matter was adjourned to 12-7-2000 and the same was communicated by the Board by telegram which was received on 11-7-2000 by the Administrator of the school and as per the averments made in paragraph 26 of the petition, handed over the same to the petitioner No. 2 when he joined the school on 12-7-2000 being the date fixed for hearing of the matter. The petitioner No. 2 despite receipt of the said telegram did not attend the hearing. The petitioner No. 1, as per his averments, received the telegram on 13-7-2000 at 12.00 and having come to know from the Headmaster that the hearing was fixed on 12-7-2000 did not receive the telegram on 13-7-2000.

9. I had occasion to consider a similar contention with regard to violation of principles of natural justice in Shree Ahinsa Prachar Samity v. The Appeal Committee, reported in (1999) 1 Cal LT 271. Therein, after obtaining adjournment the case which had been fixed for hearing before the Appeal Committee, on the said adjourned date, none appeared on behalf of the petitioner-school authority and a petition for adjournment was filed. The adjournment was rejected and appeals were taken up for ex parte hearing. With respect to the question as to the violation of principles of natural justice, the Court in that case observed as under :

“….. Reasonable opportunity of
being heard has two elements, (1) opportunity to be heard and (2) opportunity must be reasonable. Both are justiceable and it is for the Court to decide whether an opportunity has been given and whether the same has been reasonable.”

and thereafter held as follows :

“….. The school authorities were
represented before the Appeal Committee by a learned advocate. The school authorities merely filed an application for adjournment

and none chose to appear on their behalf on the date fixed for hearing. The school authorities wrongly assumed that on their application the matter would be adjourned notwithstanding that sufficient cause for adjournment was made out or not. Having already obtained adjournment on the earlier occasion, it was but proper that the school authorities should have appeared before the Appeal Committee, ready to proceed with the matter on the said date, in case the adjournment prayed for was refused. Having failed to do so and choosing to remain ex parte, the school authorities have only themselves to blame. It is not therefore, open to the school authorities now to contend that there has been violation of principles of natural justice or that they had not been afforded reasonable opportunity to be heard.

The instant case is not in that class of cases where the petitioners were not afforded an opportunity of being heard or that the opportunity afforded was not reasonable. The petitioners failed to avail of the reasonable opportunity afforded to him.”

10. In the light of the above, the submissions made by Ms. Karabi Gangopadhyay merit consideration. The judgments relied upon by the learned counsel, Ms. Gangopadhyay support the contention advanced by her.

11. In Nagendra Nath Shah’s case , cited supra, the Sinha, J. considered the question whether the authorities performing either judicial or quasi-judicial proceeding are bound to send notices of adjournment. The said case related to a revision filed against an order of assessment under the Bengal Finance (Sales Tax) Act, 1941. The revision filed by the petitioner in that case was disposed of by the authority after an adjournment was asked for and communication of adjournment was sent to the petitioner at the registered address of the petitioner. The question of violation of principles of natural justice was pleaded and negatived by Court in the following terms : (Para 3)
“….. I have given above, there is,
in my opinion, no violation of the rules of natural justice. The authorities have no duty cast upon them to send notices to any address other than the registered address. In fact, in law there is no duty to send any notices of adjournment at all. These proceedings are either judicial or quasi-judicial proceedings. There is no legal liability on behalf of the authorities to carry on any correspondence, or to inform the assessees of adjournments, by issuing notice and then serving them. The initial notice being served, it is the duty of the assessee to be present at the hearing before the authority at the time specified for hearing, and to note if any orders of adjournment are made. It is entirely out of grace that notices are served upon the assessees intimating the Sales Tax Authorities can be compelled to carry on correspondence. It is the duty of the assessees and/or their representatives to be present, and to make themselves aware of orders passed. This principle has been clearly enunciated in a decision of the Privy Council, Commissioner of Income-tax v. Badridas Ram Rai Shop . In other words, the petitioner had no legal right to be served with notices intimating to him about the several adjournments, and even assuming that he failed to get certain notices, that cannot be the subject of a high prerogative writ.”

12. In Wazir Brothers’ case cited supra, which arose under the West Bengal Sales Tax Act and related to an assessment made by the Commercial Tax Officer after a date for hearing had been fixed and on which date the petitioner in that case filed an application praying for another adjournment on the ground that its Accountant was on leave, the petition was rejected and “best judgment assessment” was made. The petitioner in that case preferred an appeal which was dismissed on the ground of limitation. Revision preferred against the said order was also rejected and the said orders were questioned by filing the writ petition before the High Court. The question for consideration before Court was as to whether there was sufficient cause for condoning the delay on the ground that no notice was served about the ex parte order of assessment. Rejecting the plea of the petitioner, in that case, the Court held as follows : (Para 9)
“Then again from a reading of the petition itself, I think that the petitioner is extremely lacking in bona fides. He made an application before the Commercial Tax Officer for adjournment on 16th July, 1958 and thereafter he did not care to take any information

as to what had happened to his application or whether the impugned assessment was made or not. It is equally unnatural for an assessee to remain silent by simply putting a petition for adjournment. This conduct on the part of the petitioner goes very serious against him…..”

13. Judged in the light of the aforesaid decisions, it must be held that there was no legal liability on behalf of the respondent authorities to inform the petitioners of the adjournment by issuing notice or serving the same upon the petitioners. The initial notice having been served, it was the duty of the petitioners to be present at the hearing before the Board at the time specified for hearing and to note if any orders of adjournment are made. It was not open to the petitioners to assume that their application for adjournment by 6 weeks would be granted automatically despite directions of Court that the matter should be disposed of within the period stipulated thereby. The conduct of the petitioners as noticed in Wazir Brothers case , goes against them. It is, therefore, not a case of violation of principles of natural justice. The petitioners had been afforded an opportunity of being heard in the matter which they failed to avail.

14. I cannot accede to the contention of Mr. M.K. Basu, learned counsel for the petitioner that the Board having chosen to communicate the date by telegram ought to have ensured that the petitioners would be able to avail of the said opportunity of hearing on the adjourned date.

15. In the light of what is stated above, the petitioners ought to have been present on 12-7-2000 and should have noted the fate of the adjournment application as also the date to which the matter was adjourned. In my view, therefore, there is no violation of principles of natural justice vitiating the order impugned in the instant writ application.

16. Apart from the above, it is also significant that the Managing Committee members have not chosen to file the instant writ application, only the erstwhile Secretary and the Headmaster of the institution has filed the instant writ application. The other Managing Committee’s members, it must be assumed have accepted that the tenure of the Managing Committee expired on 26-9-96.

17. In the circumstances, I am not inclined to interfere with the order passed by the Board impugned in the instant writ application.

18. The writ application is accordingly dismissed, however, without any order as to costs.


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