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2001 DIGILAW 443 (CAL)

Benoy Kumar Mondal v. Sweta Chandra

2001-07-23

RONOJIT KUMAR MITRA, TARUN CHATTERJEE

body2001
JUDGMENT Mitra, J. : In this appeal prayer was made for the disposal of the F.M.A.T. No. 3293 of 1997 by directing the Chairman, Ad hoc Committee, Murshidabad (Primary School) Council, to approve the service of the petitioner from the date of the recognition of the School ; pay his arrears of salary including emoluments and pay his monthly salary month by month, in accordance with law. It would appear, that this matter has a checkered career. There have been diverse appeals and contempt applications from orders made by Court, including application for modification of orders, and fresh writ application. It would be convenient, I should think at this stage, to advert to the facts of the case. 2. It has been alleged, that the appellant was an organiser teacher in Singedda Primary School in Murshidabad. The school had thereafter obtained recognition, by the appropriate authorities, on January 4, 1972. According to the appellant, though on the basis of regular interview his name had been empanelled for appointment as an assistant teacher in the School on February 13, 1980, the respondent authorities wrongfully and illegally did not give appointment to the petitioner. Being aggrieved, the petitioner had moved a writ application before this Court, which had been marked C.O. No. 19356(W) of 1992. It would appear from the Order dated September 17, 1992, being Annexure 'D' to the petitioner, that the respondent No.3 & 3(a) had been served with copies of the petition and were represented in Court by Advocates. Direction was given by Court for filing of affidavits, and the District Inspector of School (Primary Education) Murshidabad, to which I shall refer as the DI, for short, in this order, was the respondent No. 3(a) in this petition, was directed to file a report in respect to the claim of the appellant. 3. The writ application was disposed of by an order dated December 12, 1995. It was recorded in the order that the DI had furnished the report, though the respondents were not represented nor any affidavit had been filed on their behalf. The report of the DI was not denied or disputed by the respondents. The Hon'ble Judge who had made the order, was of the view that it appeared from the report, the horrible state of affirs dealing with the writ petitioner. The report of the DI was not denied or disputed by the respondents. The Hon'ble Judge who had made the order, was of the view that it appeared from the report, the horrible state of affirs dealing with the writ petitioner. "In accordance with the proposal made by the DI, in his report, the Hon'ble Judge directed:- "the respondents to accord approval to the petitioner from the date of recognition of the school and also pay his salary, which he is entitled to from the said date DI recognition. The respondents are also directed to pay to the petitioner his salary, month by month and to act in accordance with law. The direction should be complied with within three weeks from the date of communication of this order to the respondents." The direction was reiterated in the order dated December 19, 1995 which had been made while disposing of an application for modification of the order dated December 12, 1995. In a contempt application which had been moved by the appellant, for non-compliance of the order dated December 12, 1995, a rule was issued by Court on February 5, 1996. The respondents made an application on March 8, 1996 with a prayer for recalling the order dated April 24, 1996, by which the application for modification of the two orders dated December 12, 1995 and December 19, 1995. had been dismissed. The application by the respondents for recalling the two orders was disposed of by an order dated June 6, 1996, and at the suggestion of Advocate for the respondents, which was not objected to by the appellant appearing in person, the appellant was directed to make a comprehensive representation before the Chairman, Murshidabad District (Primary School) Council, and the Chairman was directed to "consider the said representation................ after giving personal hearing to the writ petitioner and dispose of the said representation with a reasoned order." The Chairman in compliance with the order of the Court, disposed of the matter by observing that he was "unable to hold that, Sri Mondal, the petitioner, worked continuously as an Organiser Teacher of the School in question and as such the undersigned has no right or authority to recommend his prayer for approval as an Organiser Teacher to the appropriate higher authority." The appellant in those circumstances made this present writ application which was marked as F.M.A.C. No. 3293 of 1997 and which, according to the appellant, arose out of the contempt proceedings. 4. The petitioner had been appearing in person throughout the proceedings in Court, as according to him financially he was unable to afford the assistance of an Advocate, Mr. Asok De a Senior Advocate of this Court, who was present in the Court was requested by the Appeal Court, and the respectable Senior Advocate was agreeable to render every assistance to the appellant in these proceedings before this Court. The matter had been adjourned. The appeal was disposed of by an order dated July 15, 1998, by a Bench where I was one of the Judges, and the presiding Judge has since retired. In its order, the Appeal Court had in-fact confirmed the two orders dated December 12, and 19, 1995 and directed the respondents to carry out the terms of the two orders. 5. The Chairman Ad-hoc Committee, Murshidabad District (Primary School) Council issued a letter dated April 1, 1999 to the Director of School Education, West Bengal, Primary Branch, intimating him that in terms of Rule 3(D) the list of organiser teachers had been forwarded to the Education Directorate for its approval, and that the name of the appellant had been included in the list. The Director of School Education by a letter dated May 6, 1999 requested the Chairman, to submit a detailed report, including all relevant papers and documents with regard to the claim of the appellant. The Director of School Education by a letter dated May 6, 1999 requested the Chairman, to submit a detailed report, including all relevant papers and documents with regard to the claim of the appellant. In terms of the order dated July 15, 1998 the Director of School Education by a letter dated September 7, 1999 complied with the directions contained in the two orders dated December 12 and 19, 1995, and approved the name of the appellant as an Organiser Primary Teacher, in Singedda Primary School in Murshidabad, and directed payment of salaries to which the appellant was entitled, in accordance with law. By an order dated September 8, 1999, this Court directed the respondent authorities to give effect to the directions of the earlier Appeal Court, as contained in its order dated July 15, 1998. At this stage an application was made on behalf of the Chairman, Primary School Council on November 29, 1999 before the Hon'ble Judge who had made the two orders dated December 12, 1995 and December 19, 1995 for recalling the orders. By an order dated February 18, 2000 the two orders dated December 12, 1995 and December 19, 1995 were recalled. In those circumstances the appellant made this appeal. 6. Having marshalled the facts of the case to a reasonable extent, I cannot but observe that it is most distressing that the governmental authorities responsible for protecting the high standards of the schools in the districts, as also the best interests of the students, teachers and the public at large, should adopt such attitude which would cause limitless prejudice, irreparable loss and damages to a teacher and 'reduce the process of Justice to travesty and ridicule. Admittedly, the name of the appellant appeared at serial No. 26 in the panel, which had been annexed to the petition. It would also appear from the records that inspite of receipt of notice, and being fully aware that from time to time orders were being made by the Court in the matter, the respondent authorities chose not to be represented in Court. The report, which had been sent to the Hon'ble Judge by the District Inspector of Schools (Primary Education), was endorsed at the very beginning as, "Orginal correct report submitted by the District Inspector of Schools (Primary Education), Murshidabad. The report, which had been sent to the Hon'ble Judge by the District Inspector of Schools (Primary Education), was endorsed at the very beginning as, "Orginal correct report submitted by the District Inspector of Schools (Primary Education), Murshidabad. It was suppressed with force by the Chairman Murshidabad District Primary School (Council)........" It had been recorded in the report, that the enquiry in terms of the order of the Court had been held in the presence of the Head Teacher, the President and the Secretary of the } School Committee and many of the villagers including the Gram Prodhan of the local Gram Panchayat. The District Inspector of Schools, in his report had categorically found, that it was evident from the records maintained by the school including the attendance registers, that the appellant was indeed an organiser teacher. He prayer in his report, that the Court would uphold the entire claim of the appellant. The respondent authorities did not care to take exception to the report. An Appeal Court had disposed of the application as early as on July 15, 1998 and directed the respondent authorities to approve the appointment of the appellant, and realease his arrear salary and also pay the monthly salary in accordance with law. Not a whisper of the allegation till then, which had been made, later by the respondents, in the modification application that the appellant was unsuccessful in the interview. In an attempt to protect itself against the appellant's application the respondents by way of a counter blast had sought to make the application for modification of the two orders, where the respondents had been directed to approve the appointment of the appellant. The order was not modified nor recalled, yet at the suggestion of the Advocate for the respondents the appellant was directed to make a comprehensive representation before the Chairman, Murshidabad District Primary School (Council). This order dated June 6, 1996 was bad in law, primarily because the application made by the respondents had been rejected. It is not possible in law to make a substantive order in an application which evidently has been rejected on the ground, that the application had been filed by Advocate on behalf of the respondents who did not have the necessary 'power' to do so. It is not possible in law to make a substantive order in an application which evidently has been rejected on the ground, that the application had been filed by Advocate on behalf of the respondents who did not have the necessary 'power' to do so. It was of no consequence that the appellant appearing in person did not object to the suggestion made by the Advocate for the respondents during the course of the hearing of the application. I am inclined to be of the view that the appellant did not have the foggiest idea of the order which was about to be made and the appellant was of course entitled to the protection of the Court. Indeed two applications were heard analogously the appellant's contempt application and the modification application made by the respondents. Though it was not contended on behalf of the respondents, and rightly so, that the order had been made in the contempt application, it must be remembered that in adjudicating an application for alleged contempt, the Court would only ascertain if the alleged contempt had been committed, and take appropriate steps in accordance with law, in keeping with the findings of the Court. The Court would most certainly not make any other by way of modification or otherwise of the order alleged to have been violated. 7. The Appeal Court in making its order dated July 15, 1998 had no difficulty in disregarding the order dated June 6, 1996 and had directed the respondent authorised to comply with the terms of the two orders dated December 12 and 19, 1995. The Director, Murshidabad Primary School Education, had in fact duly complied with the direction of the Appeal Court, and approved the appellant as an organiser primary teacher in the school, and had sanctioned payment of monthly salary and also all arrears, from the date of recognition of the school. Strangely enough though, that after all this, by an order dated February 18, 2000 the two orders dated December 12, 1995 and December 19, 1995 were recalled, in all application made on behalf of the Chairman Primary School Council. It is difficult to understand how either of the two orders dated June 6, 1996 or February 18, 2000 could have been made at all. It is difficult to understand how either of the two orders dated June 6, 1996 or February 18, 2000 could have been made at all. In the order dated June 6, 1996, as the appellant was appearing in person, it was the duty of the Court to be extra cautious, and ensure that the appellant was not deprived of any benefit which had clearly accrued in his favour. Instead, the appellant had been subjected to the mercy of the Chairman, who had "forcibly suppressed the original correct report" which had been prepared by the Director of Schools, in pursuance of a direction by the Court. The order dated February 18, 2000 had been made inspite of the fact that the matter had been disposed of by the Appeal Court, and admittedly after due compliance of the terms of the order by the respondent authorities. Indeed, I am perplexed as to how the orders could have been made. 8. There is another aspect of this matter. It is not in dispute that after the disposal of the appeal in favour of the appellant, respondents were not complying with the order of the Division Bench, resulting which the matter was mentioned before the Hon'ble Chief Justice. From the penultimate Paragraph 17 of the judgment of the Division Bench it would also appear that the Division Bench observed that it was necessary for ends of Justice to keep watch whether the order passed by this Court was executed or not. Since, the order of the Division Bench was not complied with, the matter was again mentioned before the Hon'ble Chief Justice and His Lordship Hon'ble the Chief Justice assigned the matter before us. Where the application for contempt was assigned before us, a submission was made on behalf of the Chairman, Primary Council that they had every intention to comply with the final order of the Division Bench dated 15th July, 1998. The matter appeared from time to time before us and documents were produced to show that the Chairman of the Primary Council confirmed that the appellant had right to get an appointment under Rule 3D and the directions of the Director of School Education that the judgment of the Division Bench dated 15th July, 1998 should be carried out. Letters were also issued by the Director of School Education admitting that the appellant was entitled to get appointment and payment. Letters were also issued by the Director of School Education admitting that the appellant was entitled to get appointment and payment. Before us it is also not in dispute that the Chairman, Primary Council was taking adjournments from time to time and the same were allowed by us. After all these incidents that had taken place in the meantime, an application for recall of the final order dated 12th December, 1995 and 19th December, 1995 passed by the learned Single Judge D.P. Kundu, J. alleging for the first time that the appellant had committed fraud upon the Court and as such the final order should be recalled, was filed by the Chairman, Primary Council. In the said application for recall, the Chairman, Primary Council for the first time annexed a report dated 13th April, 1993 allegedly submitted by the District Inspector of Schools, Primary Education, Murshidabad. Relying on this report in fact, the application for recall was filed. The application for recall was allowed on 18th February, 2000 by D.P. Kundu, J. without giving any opportunity of hearing to the appellant. It was also pointed out that there was a Sradh ceremony in the family of the appellant and as such on the date the learned Single Judge disposed of the application for recalling, the appellant was unable to attend the Court. 9. Being aggrieved and dissatisfied with the said order dated 18th February, 2000, the appellant preferred MAT. No.1029/2000 and in connection with the same (MAT. No. 1029/2000) he had also taken up an application for stay. This MAT No. 1029/2000 has been assigned to us by the Hon'ble Chief Justice. When the application for stay was taken up for hearing by us, a point was raised by the learned Counsel for the appellant that when the earlier Division Bench presided, over by B.P. Benerjee, J. (as His Lordship then was) had disposed of the Mandemus Appeal being F.M.A.T. No. 3293/97 by a final judgment dated 15th July, 1998, question of filing an application for recall before the trial Court could not arise at all. Realising this difficulty the Chairman of the Primary Council filed an independent application before us praying for recall of the order dated 12th December, 1995 and 19th December, 1995, passed in C.O. No. 19356(W) of 1992. This application of the Chairman, Primary Council was registered as CAN. No. 9039/1999. Realising this difficulty the Chairman of the Primary Council filed an independent application before us praying for recall of the order dated 12th December, 1995 and 19th December, 1995, passed in C.O. No. 19356(W) of 1992. This application of the Chairman, Primary Council was registered as CAN. No. 9039/1999. This application was also assigned to us by the Hon'ble Chief Justice. 10. After hearing the learned Counsel for the parties and after considering the factual aspect of the matter in detail as noted hereinafter, we find that the application for recall filed before us was affirmed on 24th November, 1999 by the Chairman of the Primary Council which was in fact, filed on the basis of a report of the District Inspector of School, Primary Education, Murshidabad dated 13th April, 1993. For the first time, in this application for recall this report was brought into light. When the proceedings continued for a pretty long time either before the trial Court or before different Division Benches of this Court, for the first time it was alleged that the report of the District Inspector of Schools, Primary Education dated 19th April, 1993 was a manufactured document. In our view, this question at this stage cannot be re-opened as the said report ought to have been submitted by the District Inspector of Schools, Primary Education Murshidabad at the initial stage. In any view of the matter, we are unable to place any reliance in the said report dated 13th April, 1993 as we find from the same that the District Inspector of Schools in his report stated that he had gone to the School in question on 13th April, 1993 and, therefore, the District Inspector of School had no opportunity to hold an enquiry on 13th March, 1993. Secondly, In MAT. No. 1029/2000, notice of enquiry issued by the District Inspector of Schools, Primary Education, Murshidabad was annexed. From the said notice, it would be evident that the same• was issued on 2nd April, 1993 intimating the appellant that the enquiry would be held in the school premises on 13th April, 1993. Secondly, In MAT. No. 1029/2000, notice of enquiry issued by the District Inspector of Schools, Primary Education, Murshidabad was annexed. From the said notice, it would be evident that the same• was issued on 2nd April, 1993 intimating the appellant that the enquiry would be held in the school premises on 13th April, 1993. On consideration of this material, we are firmly of the opinion that the claim of the Chairman, Primary Council, Murshidabad was highly mala fide and the said action on the part of the Chairman after the successive orders passed by the Division Bench and also by the trial Court was bad in law. Keeping this in our mind, we are, therefore, of the view that the application for recall was filed first before the trial Court and thereafter, before us only to defeat the justified claim of the appellant. That apart, in all earlier proceedings, the Primary Council, Murshidabad never produced the report dated 13th April, 1993. Primary Council, all throughout relied upon a report dated 19th April, 1993. That being the position, we are unable to accept the contention of the learned Advocate for the Primary Council as in the report dated 13th April, 1993 it was stated that since fraud was committed by the appellant he was not entitled to be regularised nor he was entitled to any payment from the Chairman of the Primary Council. It appears that in the first recalling application filed by the Chairman of the Primary Council before the trial Court particularly in one of its paragraph that the District Inspector of Schools, Primary Education, Murshidabad had submitted a report on 19th April, 1993. Apart from that in the application for recall before the trial Court, there was no allegation of fraud. Only allegation was that the appellant was not successful in the selection test. The said stand was also incorrect and the panel in question would show that the appellant was empanelled. Even after the disposal of the first recalling application, the Chairman of the Primary Council heard the matter. At the said hearing, the Chairman also relied on the report dated 19th April, 1993 submitted by the District Inspector of Schools, Primary Education, Murshidabad and not on the report dated 13th April, 1993. The report dated 13th April, 1993 was also not disclosed before the Chairman of the Primary Council, Murshidabad. At the said hearing, the Chairman also relied on the report dated 19th April, 1993 submitted by the District Inspector of Schools, Primary Education, Murshidabad and not on the report dated 13th April, 1993. The report dated 13th April, 1993 was also not disclosed before the Chairman of the Primary Council, Murshidabad. The Chairman in a letter dated 13th May, 1999 duly informed the Director of School Education about the report dated 19th April, 1993 and said that the said report would meet the particulars regarding the claim of the appellant. If, is also not in dispute that after the disposal of the appeal by the Division Bench affirming the order of the trial Court dated 12th December, 1995 and 19th December, 1995, there were several correspondences between the learned Advocates of the appellant and the Primary Council and the Director of School Education wherefrom it would be evident that the Council and the Director of School Education had admitted that the claim of the appellant was justified. At that stage also the Chairman had not alleged that the appellant had practised fraud. In any view of the matter in the order dated 12th December, 1995, D.P. Kundu, J. had relied on the report dated 13th April, 1993 only because no affidavit was filed by the appellant to controvert the said report. From the discussions made hereinabove, we are of the view that the question of relying on the report dated 13th April, 1993 at this stage cannot arise at all. 11. For the reasons aforesaid, we are of the view that the orders of the trial Court cannot at all stand. 12. Before we and with this judgment, we may refer to a decision of the Supreme Court in the case of (1) United Insurance Company Limited v. Rajendra Singh and Ors., AIR 2000 SC 1165 which was strongly relied on by the learned Advocate appearing for the Chairman or the Primary Council. In my view, this decision of the supreme Court or the principles laid down in the same cannot at all applied to the facts and circumstances of this case. In that decision, the Supreme Court that when a fraud was subsequently detected, remedy cannot be refused, It is well-settled law that fraud vitiates every proceeding and there is no debate about the proposition of law laid down by the Supreme Court in the aforesaid case. In that decision, the Supreme Court that when a fraud was subsequently detected, remedy cannot be refused, It is well-settled law that fraud vitiates every proceeding and there is no debate about the proposition of law laid down by the Supreme Court in the aforesaid case. In this case, this situation did not arise. The existence of the alleged report dated 13th April, 1993 was with the Chairman of the Primary Council. It was open to the Authorities to rely on such report even before the Appellate Court at the stage when the contempt application was heard and disposed of. It was also open to the Chairman of the Council to rely on the said report or discard the other report produced by the appellant even at the time hearing was given by him to the appellant. Such being the position, we are of the view that question of fraud in the facts and circumstances of the case cannot arise at all end, therefore, the decision on which the learned Advocate for the Council relied on cannot at all be applied to the facts and circumstances of the present case. 13. From the discussions made hereinabove, we are also of the view that this case depicts a very painful affair and the stand taken by the Chairman of the Primary Council amply shows that the Council are playing with the Court and in order to defeat the justified claim of the appellant they have been making cases for recall of the order passed by the Division Bench of this Court and also, by the trial Court. 14. In those circumstances, I have no hesitation to hold that the order dated February 18, 2000 does not and cannot in any manner be allowed to remain in force, and the order is set aside and shall be of no effect whatsoever. The Chairman Ad-hoc Committee, Murshidabad (Primary School) Council, shall give effect to the intimation dated September 7, 1999 issued by the Director of School Education within a period of fortnight from the date of receipt of a xerox copy of this order. The appellant shall intimate the Chairman Ad-hoc Committee Murshidabad (Primary School) Council, as to this order together with a xerox of the order countersigned by the Assistant Court Officer of this Court. The Chairman Ad-hoc Committee shall pay costs of this application reasonably assessed at 300 GM. The appellant shall intimate the Chairman Ad-hoc Committee Murshidabad (Primary School) Council, as to this order together with a xerox of the order countersigned by the Assistant Court Officer of this Court. The Chairman Ad-hoc Committee shall pay costs of this application reasonably assessed at 300 GM. Parties shall be at liberty to obtain xeroxed of this order countersigned by the Assistant Court Officer of this Court upon an undertaking by the Advocates for the parties to obtain a xerox certified copy of the order on the usual terms. Chatterjee, J. : I agree.