The State Of West Bengal & Ors vs Somdeb Bandyopadhayay & Ors

The State of West Bengal & Ors. ....Appellants

Versus

Somdeb Bandyopadhayay & Ors. ....Respondents

JUDGMENT

DR. ARIJIT PASAYAT, J.

1. Heard learned counsel for both the parties.

2. Leave granted.

3. This appeal arises from the order passed by the Division Bench of the

Calcutta High Court allowing the writ appeal filed by the respondent No.1.

4. The facts, as presented by the appellants, are as follows:

Respondent No.1 was appointed to the post of Superintendent of

Chhoto Jagulia Junior Technical School, presently named as Industrial

Training Centre Chhoto Jagulia, by the Governing Body of the said Institute

on 7.7.1993. He was also given the responsibility of the Ex-officio Secretary

of the Governing Body.

Due to some allegations against Respondent No.1, namely, non-

functioning of the administrative work as well the non-attending the

Institution an Enquiry Committee was set up. On the basis of the decision

of the Committee, administrative function as a Member Secretary was

withdrawn and another person was appointed.

A writ petition was filed by respondent No.1 taking the stand that he

should be allowed to continue as Superintendent. His stand was that he was

prevented from discharging duties after 10.3.1997. Originally, the petition

was filed before the West Bengal Administrative Tribunal (in short `the

Tribunal') and interim order was passed by the Tribunal directing that there

should be so interference with the functioning of the present respondent

2 No.1. Alleging that the interim order was not being carried out contempt

petition was filed. Tribunal disposed of the petition with certain directions.

Subsequently, on 30.3.1998 the Original Application was dismissed on the

ground that Tribunal had no jurisdiction.

On 11.5.1998, a writ petition was filed in the Calcutta High Court

seeking restoration of status as Member Secretary of the Governing Body.

Certain interim directions were given. The present appellant took the stand

that the respondent was not attending the office and was not signing the

attendance register. A special leave petition was filed by respondent No.1

before this Court which was withdrawn. The same was directed against the

order dated 22.9.2000 in CPAN 768/2000. The writ petition was dismissed

by learned Single Judge on several counts. The basic conclusion was that

since factual dispute was involved the writ petition was not to be

entertained.

A writ appeal was filed before the High Court and contempt

proceedings were also initiated. The Division Bench directed that lawful

arrears have to be paid. Certain directions were given making stringent

observations against the officials. An amount of Rs.7,33,567/- was paid.

3 The High Court was primarily of the view that since the proceedings for

absence were not initiated, the appellant should be bound to pay and there

was no question of any prejudice involved. The writ appeal was allowed in

the aforesaid terms.

5. Learned counsel for the appellant submitted that the writ petition was

dismissed on the ground that factual controversy is involved, i.e. whether

the writ petitioner's stand that he was prevented from attending duties or

whether the appellant's stand that he was not attending office is correct. It

requires factual adjudication and such question cannot be decided in the

writ petition. It is also pointed out that without condoning the delay several

interim orders were passed which is not permissible in law. Learned

counsel for the respondent No.1, on the other hand, submitted that

voluminous documents are available to show that the writ petitioner was

prevented from attending their duties and carrying on his functions.

6. It is to be noticed that even without condoning the delay and

entertaining the writ appeal the High Court has passed series of interim

orders. Such a course is impermissible as the appeal was non-est in the eye

of law without it being entertained. Admittedly, the delay in preferring the

writ appeal was not condoned at the time when the interim orders were

4 passed. The High Court has committed another error in holding that the

writ petition was dismissed principally on the ground that it was the

decision of the Governing Body as to who should be its Secretary, although

Government approval is necessary for appointment of the Secretary of the

Governing Body of the Institute. On the contrary the learned Single Judge

dismissed the writ petition principally on the ground that factual

controversy is involved. The Division Bench has not discussed this aspect

at all. Therefore, the order is clearly indefensible.

7. In the aforesaid background, we set aside the impugned judgment of

the High Court and remit the matter for its consideration as to whether the

writ appeal was to be entertained in view of the conclusions of the learned

Single Judge that factual controversies are involved and, therefore, the writ

petition was not maintainable.

8. The appeal is allowed without any order as to costs.

.................................................J. (Dr. ARIJIT PASAYAT)

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............................J. (ASOK KUMAR GANGULY) New Delhi, January 23, 2009

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