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2017 DIGILAW 176 (CAL)

Satpalsa High School v. Krishna Ram Bhattacharya

2017-02-14

DIPANKAR DATTA, SAHIDULLAH MUNSHI

body2017
JUDGMENT : 1. This writ appeal is directed against the judgment and order dated 7th May, 2015 passed by a learned Judge of this Court whereby, W.P. 12507 (W) of 2014 presented by the first respondent (hereafter the 'writ petitioner'), was allowed with a direction upon the private respondents therein, who are the appellants before us, to release salary of 1132 days in favour of the writ petitioner and also to incorporate suitable entry in his service book, as directed by the District Inspector of Schools (SE), Birbhum, the fourth respondent (hereafter the 'DIoS'), in his order dated 12th February, 2014. 2. The writ petitioner had made an application before the DIoS on 1st April, 2013 claiming ameliorative relief in regard to alleged illegal actions of the Managing Committee, Satpalsa High School (hereafter the 'school') in deducting amounts from his due salary and forcing him to be "without pay" on days when he had availed of due leave. Since such representation was not considered, the first round of litigation was initiated by the writ petitioner before this Court by invoking its writ jurisdiction. It was disposed of by a learned Judge by an order dated 17th September, 2013 with a direction upon the DIoS to take a decision upon hearing the writ petitioner as well as the school. The DIoS arranged for a hearing on 19th December, 2013, which was attended by the writ petitioner as well as the teacher-in-charge of the school. The order of the DIoS reads as follows :- "It appears that (1) Total 1132 days salary of the petitioner deducted. But no Leave was sanctioned by the school authority and not forwarded to the West Bengal Board of Secondary Education for approval. (2) As per the statement of the petitioner he compelled to work Day and Night, whenever he stopped Night Duty, his salary was deducted. (3) His Service Book has not completed properly for this reason he will not get any pension. (4) In my opinion the statement of the petitioner is true. The District Inspector of Schools have nothing to do. So, the school authority is directed to make arrangement for payment of deducted salary of 1132 days within a month which is in their possession and to regularize his service book so as he can get pensionary benefit after retirement. (4) In my opinion the statement of the petitioner is true. The District Inspector of Schools have nothing to do. So, the school authority is directed to make arrangement for payment of deducted salary of 1132 days within a month which is in their possession and to regularize his service book so as he can get pensionary benefit after retirement. The commissioner of school deduction is requested to direct the school authority for payment of deducted salary and regularize the service book within a month." 3. Upon receipt of the order of the DIoS dated 12th February, 2014, the teacher-in-charge of the school addressed a letter dated 24th April, 2014 to the Director of School Education, West Bengal, the third respondent. An objection was lodged in regard to the said order of the DIoS and necessary advice solicited to tackle the situation. 4. It is at or about this stage that the writ petition, out of which the impugned judgement and order arises, was presented by the writ petitioner. The impugned judgment and order records no representation from the side of the respondents, despite service of notice on all. The learned Judge was of the opinion, in view of absence of any justification preferred by the school, its Headmaster and the secretary of the managing committee, the private respondents in the writ petition, that they were obliged to take steps on the basis of the order of the DIoS dated 12th February, 2014. This resulted in direction being issued to implement such order, as noticed above. 5. Appearing in support of the appeal, Mr. Dutta, learned advocate urges grounds I and II of the Memorandum of Appeal. According to him, the writ petitioner having prayed for issuance of rule nisi in terms of prayers (a) to (c) of the writ petition and having also prayed for an interim order in terms of prayer (e) thereof, the learned Judge erred in the exercise of jurisdiction to finally dispose of the writ petition with a mandatory order on the very first day the same was moved. 6. Mr. Dutta further submits that challenging the order of the DIoS dated 12th February, 2014, a writ petition [W.P. 34306 (W) of 2014] has been presented by the appellants and hearing of such writ petition could not proceed because of pendency of this appeal. 7. Mr. 6. Mr. Dutta further submits that challenging the order of the DIoS dated 12th February, 2014, a writ petition [W.P. 34306 (W) of 2014] has been presented by the appellants and hearing of such writ petition could not proceed because of pendency of this appeal. 7. Mr. Dutta also raises other points touching the merits of the aforesaid order of the DIoS which, in view of the order we propose to pass, are not required to be considered here. 8. Mr. Ghosh, learned advocate appearing for the writ petitioner contends that due notice of the writ petition together with a copy of the same having been served on the school, its Headmaster and its managing committee, and they having stayed away from the proceedings before the learned Judge, His Lordship did not commit any error of jurisdiction in disposing of the writ petition on the first day with mandatory direction. According to him, on the date the writ petition was disposed of, the appellants herein had not challenged the order dated 12th February, 2014 of the DIoS and thus, even if they had entered appearance, they could not have offered any effective resistance. While seeking to support the order of the DIoS and the impugned judgment and order, he prays for dismissal of the writ appeal. 9. The point of jurisdiction raised by Mr. Dutta appears to be an important one requiring serious consideration. 10. The remedy made available by Article 226 of the Constitution is discretionary, admits of no doubt. Such discretion is obviously exercised bearing in mind the rules/procedures that are framed/evolved by each High Court for regulating writ proceedings before it and certain self-imposed limitations. The "Writ Rules" framed by this Court are in place, which guide the learned Judge(s) comprising the Bench(es) to decide petitions that are presented under Article 226. Although a Bench may, in the wise exercise of its discretion, dispense with any requirement of the rules/procedures, care, caution and circumspection must be exercised to ensure that such dispensation does not affect any vital right of a party to a litigation, so much so that a grievance could be raised in subsequent proceedings before the Bench itself or before an appellate court of the rules of audi alteram partem having been observed in the breach. 11. 11. In terms of rule 26 of the Writ Rules framed by this Court, an application under Article 226 shall not be moved and no prayer for interim order shall be entertained as made in such application without serving copy thereof along with all annexures upon the respondents to be bound by or affected by such interim order and without giving such party a reasonable opportunity to contest the same, without serving 48 hours prior notice along with a copy of the application proposed to be moved, on the concerned respondent. In terms of the 1st proviso, the Court may for reasons recorded allow moving of the application and entertain the prayer for such interim order without such notice. The next proviso requires filing of an affidavit of service showing compliance with the Rules. It also ordains that the Court hearing such an application may issue Rule Nisi or summarily reject the application or issue notice or give direction/directions or make such order thereon as it thinks fit. The explanation to Rule 26 provides that a Judge hearing an application under Article 226 "may dispose of the same by issuing notice and without issuing formal Rule". Rule 28 provides that every application filed under Article 226 shall ordinarily be listed before the appropriate Bench under the heading 'For Admission' after 48 hours of filing and the said period of 48 hours shall be deemed to be sufficient notice to the respondents to seek instructions. Rule 32 provides for drawing up of Rule Nisi on an application moved either in the Original Side or in the Appellate Side, in the manner as ordained. 12. Although the Writ Rules provide otherwise, the practise that has developed over the years in the writ courts is to enlist writ petitions at the first instance under the caption Motion/Listed Motion/New Motion. Seldom, fresh writ petitions are listed under the caption "For Admission". However, irrespective of the caption under which a writ petition is listed for the first time, this does not detract from the fact that writ petitions virtually come up 'for admission' on the first day. Seldom, fresh writ petitions are listed under the caption "For Admission". However, irrespective of the caption under which a writ petition is listed for the first time, this does not detract from the fact that writ petitions virtually come up 'for admission' on the first day. Should a litigant as writ petitioner pray for rule nisi and at the same time seek an interim order in aid of the final relief claimed in the writ petition upon service of the writ petition on the respondents, the concerned Bench having determination fixed by the Hon'ble the Chief Justice bearing in mind Rule 26, may adopt either of the following courses : dismiss the writ petition for default in case of nonappearance of any advocate for the petitioner; or, adjourn hearing and fix a further date for securing the ends of justice if either a party to the litigation is unrepresented or for some other valid reason; or, refuse to admit the writ petition in view of an efficacious alternative remedy being available to the petitioner; or, reject the writ petition on merits holding that it does not raise any triable issue deserving admission; or, admit the writ petition by issuing rule nisi with or without interim relief for reasons recorded and fix a returnable date of the rule notwithstanding absence of the respondent(s); or, admit the writ petition and require the parties to exchange their affidavits, with direction for service of notice on the respondents if they are not represented, and grant/refuse interim relief for reasons recorded; or, dispose of the writ petition with directions, provided the parties to the litigation are present and consent, either expressly or impliedly, to disposal thereof without affidavits; or, even dispose of the writ petition in the absence of the respondents recording the reason for which the writ petition need not be kept pending. In case of the last course, it would be a sound exercise of discretion if the merits of the rival claims are not decided and all questions are left open so as not to affect the right of an absentee respondent, who is a necessary party to the proceedings. In case of the last course, it would be a sound exercise of discretion if the merits of the rival claims are not decided and all questions are left open so as not to affect the right of an absentee respondent, who is a necessary party to the proceedings. The Bench, in exceptional cases, in the presence/absence of the respondents, may also pass an ad-interim/interim order which, in effect, results in granting the principal relief claimed in the writ petition, if it is of the considered opinion that but for such ad-interim/interim order, the writ petition would be rendered infructuous. 13. However, whether the Bench would be justified in disposing of the writ petition with mandatory directions on the first day it is moved in the absence of the respondents (read : necessary parties to the proceedings) is the question that emerges for an answer here. 14. While judicial notice can be taken of the fact that nowadays a rule nisi is hardly issued at the time of admission and it is only orders that are passed calling for affidavits with or without ad-interim/interim relief, hypothetically, it may well be so having regard to the explanation to Rule 26 that a respondent, who is a necessary party to the proceedings, after service of notice on it/him, may not consider it expedient to oppose the prayer for ad-interim/interim order made in the writ petition but may still choose to contest the same at the final hearing, upon formation of a view that whatever ad-interim/interim order has been prayed for, even if granted, would not affect its/his interest for the time being. If such a party stays away from the proceedings at the interim stage, could he be made to suffer an order of disposal of the writ petition with mandatory directions requiring compliance by it/him, which the Bench could have passed at the final hearing regard being had to the prayers made in it? To our mind, the answer ought to be in the negative for the reasons that follow. 15. A rule is said to be made nisi when it is not to take effect unless the person affected by it fails to show cause against it within a certain time, that is, unless he appears before the Court and gives reason as to why it should not take effect. 15. A rule is said to be made nisi when it is not to take effect unless the person affected by it fails to show cause against it within a certain time, that is, unless he appears before the Court and gives reason as to why it should not take effect. Therefore, a rule nisi is in the nature of a show-cause. The rule may be made absolute if the cause shown in return is not considered sufficient. Likewise, the rule may be discharged if the Court considers the cause shown to be sufficient. 16. In view of the explanation to Rule 26 issuance of a rule prior to disposal of a writ petition is not a sine qua non even though rule nisi may have been prayed for. The Bench may, having regard to the facts of the case, consider disposal of the writ petition by issuing notice. To us, the expression "by issuing notice" in the explanation does not mean the notice that is served prior to or at the time of presentation of the writ petition but a notice that the Bench may direct the petitioner to serve on the respondents if the Bench decides against issuance of formal rule and if the respondents are not present at the first/preliminary hearing. 17. A party who might stay away from the proceedings at its very initial stage considering that rule nisi has been prayed for, meaning thereby that the Bench is urged to issue a show-cause and to render a final decision after the same is served on such party, it/he is entitled to raise a plea that disposal of the writ petition on the very first day it is moved, in its/his absence, without service of a further notice, is opposed to principles of natural justice. Leaving aside for the moment principles flowing from Order 12, Code of Civil Procedure (hereafter 'CPC'), absence of a respondent at the first/preliminary hearing of a writ petition thereby amounting to a failure on his part to even orally rebut/oppose the pleadings cannot legitimately be regarded as an admission on its/his part of the pleaded case/claim in the writ petition. Leaving aside for the moment principles flowing from Order 12, Code of Civil Procedure (hereafter 'CPC'), absence of a respondent at the first/preliminary hearing of a writ petition thereby amounting to a failure on his part to even orally rebut/oppose the pleadings cannot legitimately be regarded as an admission on its/his part of the pleaded case/claim in the writ petition. It may amount to an admission of the pleaded case/claim if either no return is filed upon service of the rule nisi or no counter-affidavit/affidavit-in-opposition is filed dealing with the writ petition despite service of the requisites upon the respondent and despite the Bench having invited such affidavit. It is in such a case that principles flowing from Order 8, CPC or the doctrine of non-traverse may be applied/invoked. However, merely because a party respondent does not appear on the first day and/or in course of preliminary hearing before the Bench and fails to rebut/oppose the pleaded case orally, cannot give rise to an inference that having no justification to proffer, it/he has stayed away thus, natural justice need not be observed by asking a return from it/him or even adjourning hearing till some other date, with notice to such party of the inclination of the Bench to dispose of the writ petition on such adjourned date with mandatory direction in case of its/his failure to appear. We, therefore, are inclined to hold that an order of disposal of a writ petition by the Bench made on the day it is listed for admission in the absence of the respondent (who is ultimately responsible to effect compliance of any direction) requiring such party to comply with a mandatory direction contained in it, without service of a further notice, would not be the appropriate course. 18. Here, the writ petitioner prayed for rule nisi and an interim order in the writ petition. The learned Judge, finding the private respondents not to be present and forming the view that they have no explanation or justification to proffer, could issue rule nisi or call for affidavits and at best, proceed to grant such interim order that was prayed for. Once the return to the rule was received or the affidavits were exchanged, as the case may be, or if no return or counter affidavit/affidavit-in-opposition were filed, the issue raised in the writ petition could have been decided finally in accordance with law. Once the return to the rule was received or the affidavits were exchanged, as the case may be, or if no return or counter affidavit/affidavit-in-opposition were filed, the issue raised in the writ petition could have been decided finally in accordance with law. In the alternative, the learned Judge could have directed service of a further notice on the principal respondents with indication that the writ petition is likely to be disposed of with mandatory direction having regard to the pleaded case/claim coupled with the fact that the order of the DIoS had not been challenged before an appropriate forum. Without taking recourse to either, we hold that the circumstances of the case as projected in the writ petition were not such so as to call for a mandatory direction requiring compliance by the private respondents in the writ petition without keeping such petition alive. 19. It is on this short ground that we propose to interfere with the judgment and order under appeal. The said judgment and order, accordingly, stands set aside with the result that W.P. 12507 (W) of 2014 would stand revived. 20. The appeal stands allowed. There shall, however, be no order as to costs. 21. As noticed above, the order dated 12th February, 2014 of the DIoS has been challenged by the school in an independent writ petition [W.P. 34306 (W) of 2014 (Satpalsa High School and Ors. v. State of West Bengal & Ors.)]. Having regard to the fact that the writ petitioner seeks implementation of the order dated 12th February, 2014 and the appellants seek quashing of such order, interest of justice would be sufficiently served if both the writ petitions are directed to be heard together. We, accordingly, direct that W.P. 12507 (W) of 2014 and W.P. 34306 (W) of 2014 shall be heard together by the appropriate Bench. 22. The respondents in each of the writ petitions shall file their respective counter-affidavits within six weeks from date; replies thereto, if any, may be filed by a week thereafter. 23. The parties shall have the liberty of requesting the appropriate Bench to consider disposal of the writ petitions at an early date, subject to His Lordship's convenience. 24. We have refrained from expressing any opinion on merits since the same would emerge for consideration of the appropriate Bench. 23. The parties shall have the liberty of requesting the appropriate Bench to consider disposal of the writ petitions at an early date, subject to His Lordship's convenience. 24. We have refrained from expressing any opinion on merits since the same would emerge for consideration of the appropriate Bench. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. Appeal allowed.