Indra Mani Shukla vs State Of West Bengal & Ors

The writ petitioner being aggrieved by two letters dated November 16, 2018 passed by Hony. Secretary, Gyan Bharati Vidyapith has filed the present writ petition. By the first impugned letter, the petitioner has been "rested on leave" from November 17, 2018 until further orders with payment of full salary to be paid month by month in the interest of the Institution, students and education. The second letter dated November 16, 2018 is with regard to the irregular and illegal payments made to the writ petitioner and seeks to reduce his scale of pay on various grounds.

It is to be noted that this is the second round of litigation before this Court. The school authorities and also the petitioner had filed two writ petitions and by a common order dated November 9, 2017 the learned Single Judge had held that the order of the Ad hoc Committee was correct and legal and did not require any interference whatsoever. In furtherance to this order, the matter was assailed before the Division Bench of this High Court and by an order dated October 11, 2018 the Division Bench upheld the learned Single Judge's order.

In effect, the order passed in the earlier round was that the suspension of the writ petitioner was held to be illegal and without any basis. Subsequent to the order passed by the Division Bench, the petitioner informed the authorities and requested that he be allowed to join the school. However, by the two impugned letters, the petitioner has been directed to be "rested on leave" and his pay scale has been put under challenge by the school authorities. It may be noted that the reason the suspension of the petitioner was held to be illegal by the Ad hoc Committee and thereafter by the High Court was that the Managing Committee of the school was not a sanctioned body and therefore did not have the powers under Rule 28 of the Management of Recognized Non-Government Institution (Aided and Unaided) Rules, 1969.

Counsel appearing on behalf of the petitioner submits that the school authorities are once again using a colourable device to keep the petitioner out of the school and the same is nothing but a gross violation, and in fact, in contempt of the order passed by the High Court. The petitioner submits that what cannot be done directly, cannot be done indirectly. He further submits that the term "Rested on Leave" is not in the statute books, and accordingly, is nothing but an apparatus being used by the school authorities to suspend the writ petitioner in absolute violation of the earlier order passed by the Ad hoc Committee and the High Court.

Mr. Sougata Bhattacharya, appearing for the school authority supports both the letters dated November 16, 2018 and submits that the letter with regard to the pay scale has not yet been effected and only documents in support of the petitioner's scale of pay have been sought for from the writ petitioner. With regard to the letter regarding "rested on leave" he submits that the attitude and behavior of the writ petitioner is such that he cannot be allowed to remain in the school. He submits that the school authorities have pondered over this issue and only after deliberated discussions decided to send the petitioner on leave with full salary so that there is no conflict within the school. He further raises the point of maintainability of the writ petition and submits that as per Rules 3, 4 and 9 of the West Bengal Board of Secondary Education (Manner of Hearing and Deciding Appeals by Appeal Committee) Regulations, 1964, the writ petitioner has a right to appeal before the Appellate Committee under the Regulation. He, therefore, submits that there being an alternative and efficacious remedy available to the writ petitioner, this writ Court should not entertain the writ petition at all and dismiss the same in limine.

I have considered the submissions made by counsel appearing on behalf of both the parties and perused the relevant materials produced by both the parties.

In my view, the letter dated November 16, 2018 with regard to "rested on leave" is a blatant abuse of power that is clearly not available with the school authorities. The School authorities have not been able to show any statute, regulations and/or rules wherein they have the right to send somebody on leave in the manner done in the impugned letter. It is clear that the school authorities have issued this letter only to bypass the orders of the Ad hoc Committee followed by the orders of this High Court passed by the learned Single Judge and finally by the Division Bench. I am unable to accept the contention of Mr. Sougata Bhattacharya, counsel appearing on behalf of the school authorities that this is not a fit case to entertain the writ petition as there is an alternative appeal forum under the statute available to the writ petitioner. It is no doubt true as stated in Whirlpool Corporation v. Registrar of Trademark, reported in (1998) 8 SCC 1 that the High Court in its writ jurisdiction applies self-imposed restrictions, and if any effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. The relevant paragraph is delineated below :

"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged."

The Supreme Court in Union of India v. Guwahati Carbon Limited, reported in (2012) 11 SCC 651 reiterated that when a complete code exists by way of a statute, appropriate forum is the appeal provided under the statute and not a petition under Article 226 of the Constitution of India.

The general principles that emerges is that when a statute provides for a complete machinery including an appeal, the writ court would be slow to interfere under Article 226 of the Constitution of India. The Supreme Court time and again has held that when a right or liability is created by the statute which gives the special remedy for enforcing it, the remedy provided by that statute should be availed of. However, there are three exceptions wherein it is not only the right of the High Court but also the duty of the High Court to interfere in its jurisdiction under Article 226. The same are as follows :

a) When the statutory authority has not acted in accordance with the provisions of the enactment in question.

b) When the authority acts in defiance of fundamentals of judicial procedure or has resorted to invoke the provisions which are repealed or non existent.

c) Where the authority had passed an order in total violation of the principles of natural justice causing prejudice to the petitioner.

In the present case, the School authorities have not been able to demonstrate before this Court any statute, rules, regulations and/or bylaws that empowers them to prevent the petitioner from attending the school and perform his duties on the pretext of granting him leave. The term "rested on leave" is an ambiguous term having no basis in law. It is not the school authorities' case that the petitioner has been "rested on leave" on the choice of the petitioner. They, in fact, have forced this leave on the petitioner on the silly excuse that the same is in the interest of the institution, students and education. Furthermore, this letter dated November 16, 2018 was admittedly passed without giving any opportunity of hearing to the petitioner resulting in the same being in gross violation of the principles of natural justice. As pointed out above, the term "rested on leave" is a figment of imagination of the school authorities and is without any basis in law. On the above two scores, the letter dated November 16, 2018 cannot stand on its legs and is required to be decimated.

In light of above discussion, I set aside the letter dated November 16, 2018 relating to the petitioner being "rested on leave" and direct the school authorities to allow the petitioner to join the school within two days of communication of this order. With regard to the other letter dated November 16, 2018 that relates to fixation of pay scale, no order needs to passed at this stage and the writ petitioner is directed to supply the document sought by the school authority, if so advised.

It is made clear that I have not gone into the aspect of whether the person issuing the two letters has the authority to pass these orders. The petitioner shall be at liberty to proceed in accordance with law in respect to this issue.

With the above directions, WP No. 570 of 2018 is disposed of.

Since no affidavits have been called for, allegations made in the writ petition are deemed to not having been admitted by the respondents.

All parties to act as per the website copy of the order. Urgent certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.