Managing Committee of Lakshi Avinaba Vidyalaya vs State of West Bengal

Satyabrata Sinha, J.—This appeal is directed against a judgment and order dated April 22, 1996 passed by a learned single Judge of this Court in C.O. No. 201 (W) of 1994 whereby and whereunder the Appellant as well as the District Inspector of Schools (S.E.) had been directed to pay the arrears salary to the writ Petitioner/ Respondent No. 1. The learned Judge further directed that the Headmaster/Secretary be restrained from releasing any salary for the month of April, 1996 to the Headmaster until the salary for the month of March, 1996 is released to the Petitioner.

The fact of the matter keeping in view the short question involved in this appeal is as follows:

The Petitioner had filed a writ application, inter alia, contending that he was not permitted to resume his duties. The said writ application was allowed. As despite the same, the Respondent thereof was not allowing the Petitioner to perform his duties, a contempt application was filed and in the said contempt proceeding a direction was issued that the writ Petitioner would be provided with Police protection to attend the school. According to the Appellant with the police assistance the Petitioner had joined his duties for 5 days only. It has been contended that the learned single Judge while disposing of the writ application, inter alia, held that the writ Petitioner was not interested to join the school. It is, however, held that the writ Petitioner has joined his duties on and from March 15, 1996.

On the other hand, the case of the Petitioner is that as he was witness in a Criminal Case against the Headmaster/President of the school he was prevented from resuming his duties. The Petitioner in this case has relied upon a Circular letter issued by the West Bengal Board of Secondary Education to the effect that in the event a teacher is prevented forcibly, he would be entitled to the salary in terms of the said Circular.

In this appeal we are not concerned with the merit of the matter. The Petitioner in the writ application itself has prayed for payment of salary together with 18% interest. By reason of the impugned order, the learned trial Judge has, in pure considered opinion, granted the entire relief which ought not to have been done. The Petitioner may have a strong prima facie case but it is well-settled principle of law that by reason of interim order the entire writ application should not be allowed. The question as to whether the writ Petitioner was prevented forcibly from joining the classes or not'' is essentialy a question of fact. The learned trial Judge while hearing the writ petition itself is required to arrive at such a finding of fact before the relief sought for by the Petitioner could be granted. At an interlocutory stage it is not possible for the Court in a proceeding under Article 226 of the Constitution of India to arrive at such a finding of fact and in that view of the matter, in our opinion, the learned trial Judge was not justified in granting the entire relief to the Petitioner. However, in view of the fact that the Petitioner has beon suffering for a long time, we direct that the writ application itself be disposed of at an early date. We are informed that the writ application is ready for hearing. The concerned Bench is requested to dispose of the writ application at an early date and preferably within a period of three Weeks after long Puja Vacation.

However, keeping in view of the fact that there was no dispute as regards joining of the Petitioner with effect from March 15, 1996 we direct the Appellant to pay full salary to the Petitioner (not on ad-hoc basis) from the said date and for that purpose the Headmaster shah send a requisition to the District Inspector of Schools (S.E.) whereafter the Petitioner may be paid his salary along with other teaching and non-teaching staff.

It, however, goes without saying that if any amount has been paid by way of salary to the Petitioner with effect from March 15, 1996, such amount shall be adjusted.

There cannot be any doubt whatsoever that if the Petitioner succeeds he will be compansated by grant of interest as has been prayed for in the writ petition.

This appeal is disposed of with the aforementioned observations.

There will be no order as to costs.

The learned Counsel for the parties are permitted to take down the gist of this order and communicate the same to the concerned authorities who are directed to act on such communication.

D.P. Kundu J.: I agree.