The State of West
Bengal & Ors. Vs. Somdeb Bandyopadhayay & Ors.  INSC 152 (23
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 397 OF 2009 (Arising out
of SLP (C) No. 5454 of 2005) The State of West Bengal & Ors. ....Appellants
Versus Somdeb Bandyopadhayay & Ors. ....Respondents
DR. ARIJIT PASAYAT,
learned counsel for both the parties.
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.
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administrative function as a Member Secretary was withdrawn and another person
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 No.1. Alleging that the interim order was
not being carried out contempt petition was filed. Tribunal disposed of the
petition with certain directions.
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.
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withdrawn.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.
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.
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.
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 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.
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
appeal is allowed without any order as to costs.
(Dr. ARIJIT PASAYAT)
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