Calcutta High Court
Banshi Jana vs The State Of West Bengal & Ors on 30 July, 2019
Author: Shekhar B. Saraf
Bench: Shekhar B. Saraf
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
Present:
The Hon'ble Justice Shekhar B. Saraf
W.P. No. 40 of 2017
Banshi Jana
Versus
The State of West Bengal & Ors.
W.P. No. 41 of 2017
Bimla Balmiki
Versus
The State of West Bengal & Ors.
W.P. No. 42 of 2017
John Gomes
Versus
The State of West Bengal & Ors.
W.P. No. 43 of 2017
Benhur Roy
Versus
The State of West Bengal & Ors.
W.P. No. 46 of 2017
Sanjay Kumar
Versus
The State of West Bengal & Ors.
For the Petitioner : Mr. Sudip Deb, Adv.
Mr. Sunil Kumar Chakraborty, Adv.
Mr. Sumitava Chakraborty, Adv.
2
For the State : Mr. S. Bandopadhyay, Adv.
Mr. Arka Kumar Nag, Adv.
For the School Authorities : Mrs. Chama Mookherji, Adv.
Ms. Puja Bose, Adv.
Mr. Anujit Mookherji, Adv.
Heard on : 02.08.2018, 06.08.2018, 16.08.2018, 27.08.2018, 30.08.2018, 03.09.2018,
06.09.2018, 13.09.2018, 20.12.2018, 11.06.2019, 14.06.2019 & 21.06.2019
Judgment on: 30.07.2019
Shekhar B. Saraf, J.:
1. The grievances raised and issues involved in all the five writ petitions are common, and accordingly they were heard together and are being decided conjointly. The main issue involved in the writ petitions is that the writ petitioners were appointed as non- teaching staff (Group D) of the respondent school and the respondent school has initiated disciplinary proceedings against all the five writ petitioners. The main issue in these writ petitions is whether the said respondent school can continue with the said disciplinary proceedings initiated against the said writ petitioners.
2. For the purpose of convenience, the facts in writ petition W.P. No. 42 of 2017 are being taken into consideration and are chronologically delineated hereinbelow:
a. The writ petitioner was employed as a sweeper with The Calcutta Boys' School [hereinafter referred to as the 'said school'] in the month of July, 1986.3
b. In a meeting of the managing committee of the Calcutta Boys' School held on 10th February, 2015 it was brought to notice of the committee that an erstwhile gardener namely Mr. Arup Rong had made several allegations against the Principal and Secretary, Mr. Raja McGee. It was also brought to the notice that certain non-teaching staff members (including the petitioner herein) had collaborated with the said gardener who filed a criminal case against other staff members including the Principal and Secretary, Mr. Raja McGee. In order to take appropriate steps and to maintain the reputation of the school, the managing committee decided and resolved that the Enquiry Committee constituted on 27th April, 2013 shall be empowered to hold an enquiry against all the employees of the school that had lodged complaint against the staff members of the school including Mr. Raja McGee. The said resolution is provided below:
"RESOLVED THAT, the same Enquiry Committee, constituted on 27th April 2013, be appointed to conduct an enquiry to probe into the circumstances which led to the conspiracy against the Principal & Secretary and the interest of the School;
THAT, the Enquiry Committee shall enquire into all aspects including involvement of the staff of the Calcutta Boys' Schools and such other people;
THAT, the Enquiry Committee be empowered to initiate Departmental proceedings against all the employees of the School that had and or have lodged false/malicious complaints against the Staff Members of the School, including, Mr. Raja McGee, Principal & Secretary in support of the case of the gardener, Arup Rong by issuing Show Cause notice to them;
THAT, in the event of replies to the Show-Cause notices not being found satisfactory the Enquiry Committee be empowered to appoint an Enquiry Officer to conduct the Enquiry in accordance with law and strict adherence to the principles of Natural Justice, Equity and Fair Play;
THAT, the Enquiry Committee be empowered to initiate necessary steps/actions as deemed fit to facilitate a smooth and fair process of Enquiry and that it be obligatory for all persons concerned to co- operate with the Enquiry Committee/ Enquiry Officer duly 4 appointed, and to comply with all instructions/ directives issued by them;
FURTHER RESOLVED THAT, the Enquiry Committee evaluate the findings and submit its report to the Chairman, Bishop Dr. Phillip S. Masih, in a tentative period of three months. Any alteration in the period of enquiry would be in consultation with the Chairman, Bishop Dr. Phillip S. Masih."
(underlined by me for
emphasis)
c. On 12th April, 2016 the writ petitioner was served with a show cause notice [hereinafter referred to as 'said show cause notice'] by the Enquiry Committee of the said school and in lieu of such show cause notice the writ petitioner on 20th April, 2016, replied to the said show cause notice. Thereafter, on 13th May, 2016, the writ petitioner received a letter of 'Suspension Pending Enquiry' from the Enquiry Committee of the said school which was to come into effect from 15th May, 2016.
d. It was informed to the writ petitioner on 30th May, 2016, by way of a Charge Sheet containing the Articles of Charge [hereinafter referred to as the 'said Charge Sheet'] by the said school that the Enquiry Committee of the said school had decided to initiate a Domestic Enquiry Proceeding [hereinafter referred to as the 'said Enquiry Proceeding'] against the writ petitioner which was to be conducted by an Enquiry Officer. The relevant portion of the Article of Charge framed against the writ petitioner by the respondent School Authorities are quoted below:
"ARTICLE of CHARGE I UNAUTHORISED ABSENCE • That 15th.August has all along been a day to commemorate the Independence Day Celebrations in School, wherein it is mandatory for all Teaching/Non Teaching staff to be physically present, for the Flag Hoisting. Despite specific notice having been 5 issued, as per norm, you, Mr. John Gomes, kept yourself deliberately and wilfully absent on 15.08.2013 without prior leave and or permission, of the School Authorities.
ARTICLE of CHARGE II INSUBORDINATION • The School Authorities issued a letter dated 16th. August, 2013 warning you not to repeat such act in future. You refused to accept the letter and the same was dispatched by post at your residential address. You, Mr. John Gomes, deemed it fit to ignore the said letter.
ARTICLE of CHARGE III GIVING FALSE FABRICATED EVIDENCE TO THE PREJUDICE OF THE REPUTATION, GOODWILL OF THE SCHOOL • A complaint had been filed by one Arup Rong, [subsequently found to be false] being Taltala P.S. Case No. 288/08.08.2013 u/s 377 IPC against the Principal, Mr.Raja McGee alleging acts of unnatural sex. You have recorded statements u/s 161 Cr.PC, before the investigating officer, on 26/09/2013 in support of the statements of Bansi Jana and Sanjay Kumar alleging that you are a witness of the act of threat and intimidation by the Principal, Mr. Raja McGee and Office Assistant Indraman Jaiswal on 26.08.2013, 04.09.2013 and 09.09.2013 wherein they were threatened of losing their jobs if they support the cause of said Arup Rong in the Taltala P.S.Case 288 dt 08.08.2013 u/s 377 IPC."
e. The writ petitioner being aggrieved by the said show cause notice filed a Writ Petition bearing W.P. No. 524/2016 before this Court on 15th June, 2016, praying before this Court as follows:
"i) Writ/Order/Direction in the nature of Prohibition do issue upon the respondents prohibiting them from taking any step further and/or further step on the basis of the impugned show cause notice dated 12th April, 2016 being Annexure "P-2" herein and from exercising powers not warranted under the statute;6
ii) Writ/Order/Direction in the nature of Mandamus do issue upon the respondents to rescind/cancel/withdraw the impugned show cause notice dated 12th April, 2016 being Annexure "P-2" herein and further to command them to act and proceed thereafter strictly in accordance with law;
iii) Writ/Order/Direction in the nature of Certiorari do issue upon the respondents to produce and/or cause to be produced the entire records relating to the issuance of the show cause notice dated 12th April, 2016 being Annexure "P-2" herein and on such production being made render conscionable justice by quashing the same;"
f. It is to be noted that in the above writ petition there were three respondents namely (a) Calcutta Boys' School, (b) Mr. Raja McGe, Principal and Secretary and (c) Mr. Rev. Mahendra Mishra, Enquiry Committee, Calcutta Boys' School.
g. Subsequent to filing the writ petition, the petitioner wrote to the respondent no. 3, that is Mr. Mahendra Mishra, Member Enquiry Committee and agreed to participate in the hearing before the Enquiry Officer. The contents of the letter are provided below:
"Re : Your letter dated 30th May, 2016.
S i r,
1. By a letter dated 30th May, 2016 you have asked the undersigned to submit the written statement against the Memorandum of alleged charges framed by your good office. The said letter was received by the undersigned on 22.06.2016.
2. In compliance of your direction I submit that I am ready and willing to attend your office in person to participate in the hearing of the case and to submit written statement about my defence against the alleged allegation of insubordination.
3. You are, therefore, requested to provide a little more time and to allow the undersigned to take the assistance of a legal practitioner as the undersigned has no knowledge about the proceedings which has been drawn up by your good office/Enquiry Officer."7
h. The Writ Petition bearing W.P. No. 524/2016 was disposed of by Hon'ble Justice Shivakant Prasad by an order dated 14th July, 2016, which says as follows:
"Accordingly these sets of writ applications can be disposed of with a common order with this finding that since the petitioners have already submitted to the Enquiry Authority, the Enquiry Authority will give proper opportunity to the petitioners to submit their defence statement and to offer them the defence assistant from any of the senior members of the staff of the school or if they desire any legal assistance may be given from any lawyer of their choice.
Accordingly, the Enquiry Authority after submission of a statement of defence will conclude the enquiry proceedings preferably within one month from date without affording any unnecessary time to the petitioners."
i. On 27th July, 2016, the writ petitioner diligently answered to the said Charge Sheet drawn against him and also specifically replied to the Articles of Charge drawn against the writ petitioner.
j. On 16th August, 2016, the Enquiry Committee by way of a notice informed the writ petitioner that an Enquiry Officer has been appointed to conduct the said Enquiry Proceeding and therefore the writ petitioner was asked to be present on 23rd August, 2016, in the premises of the said school.
k. The writ petitioner failed to represent himself on 23rd August, 2016, before the Enquiry Committee and the same was also recorded. Thereafter, the writ petitioner was served with the second notice of Enquiry on 23rd August, 2016, and was asked to be present for the said Enquiry Proceeding to be held on 30th August, 2016, in the school premises.
8l. On 30th August, 2016, the writ petitioner appeared before the Enquiry Officer with his legal representative. The Enquiry Officer denied the legal representative of the writ petitioner to participate in the said Enquiry Proceeding stating that such action of writ petitioner is not duly authorised by the Enquiry Committee. Thereafter, the said Enquiry Proceeding was adjourned till 5th September, 2016.
m. Being aggrieved by the conduct of the Enquiry Officer the writ petitioner on 7th September, 2016, filed another writ application bearing W.P. No. 913/2016 praying before the Court as follows:
"i) Writ/Order/Direction in the nature of Prohibition do issue upon the respondents prohibiting them from continuing the enquiry proceeding ex-parte or to take any step and/or further steps on the basis of the impugned Article of Charge being Annexure "P-3"
herein and from exercising power not warranted under the statute;
ii) Writ/Order/Direction in the nature of Mandamus do issue upon the respondents to rescind/cancel/withdraw the impugned show cause notice, order of suspension and Article of Charges issued on 13th May, 2016 and 30th May, 2016 being Annexure "P-3" herein and further to command them to act and proceed thereafter strictly in accordance with law;
iii) Writ/Order/Direction in the nature of Certiorari do issue upon the respondents to produce and/or cause to be produced the entire records relating to enquiry proceeding dated 29th August, 2016, being Annexure "P-6" and on such production being made render conscionable justice by quashing the same;"
n. It is to be noted that in the above writ petition there were eight respondents namely (a) State of West Bengal, (b) Calcutta Boys' School (c) Rev. Bishop Philips, (d) Raja McGee, Principal and Secretary, Calcutta Boys' School, (e) Mr. S.N. Lahiri, Member Enquiry Committee, Calcutta Boys' School, (f) Mr. Darryl Joseph, Presenting Officer, Enquiry Committee, Calcutta Boys' School, (g) Rev. Mahendra Mishra, Enquiry Committee, Calcutta Boys' School (h) Mr. Amit Prakash Lahiri.9
o. The writ petition bearing W.P. No. 913/2016 was allowed by Hon'ble Justice Rajiv Sharma by an order dated on 8th November, 2016, which says as follows:
"This Court directs Mr. Lahiri, a practising Advocate of this Court, who has already been engaged as the defence assistance before the enquiry officer, to appear before the enquiry officer as and when the date is fixed by the said enquiry officer and in case of any opposition by the school authority or the enquiry officer, Mr. Lahiri shall inform the Commissioner of Police, Kolkata, about the same in writing who, in turn, shall ensure proper assistance of police authorities to Mr. Lahiri so that he can appear as the defence assistance of the petitioner before the enquiry officer as and when the date is fixed."
p. Thereafter, the writ petitioner along with his legal representative was present on 16th December, 2016, before the Enquiry Officer for the continuation of the said Enquiry Proceeding in accordance with the order passed by this Court on 8th November, 2016. The Enquiry Officer fixed the next date of hearing on 3rd January, 2017, to which the writ petitioner objected but the said objection was not entertained by the Enquiry Officer. q. On the next date of hearing that is on 3rd January, 2017, the legal representative of the writ petitioner came up for the very first time with an objection challenging the maintainability of the said Enquiry Proceeding and challenging the authority of the Disciplinary Committee of The Calcutta Boys' School. Further, the Enquiry Officer intervened and said that the defence will be given all reasonable opportunity to present their defence when their turn comes. Hence, the next date for hearing was fixed on 6th January, 2017.
r. On 6th January, 2017, the legal representative of the writ petitioner by way of a letter wrote to the Enquiry Officer challenging the legal validity and authority of the said Enquiry Proceeding initiated against the writ petitioner. 10 s. As the enquiry was not held on 6th January, 2017, the same was rescheduled and was held on 10th January, 2017, wherein, the said letter dated 6th January, 2017, was taken up and the Enquiry Officer made a remark that the Enquiry Officer was not the appropriate forum to deal with the points mentioned in the said letter.
t. The petitioner immediately thereafter, on January 19, 2017 filed the present writ petition challenging the Order of Suspension and Article of Charge dated 13th May, 2016 and 30th May, 2016 passed by the said school. It is to be noted that the writ petitioners in all the other writ petitions are also challenging the same Order of Suspension and Article of Charge dated 13th May, 2016 and 30th May, 2016 passed by the said school. It is to be noted that in all the above writ petitions there are eight respondents namely (a) State of West Bengal, (b) Calcutta Boys' School (c) Rev. Bishop Philips, (d) Raja McGee, Principal and Secretary, Calcutta Boys' School, (e) Mr. S.N. Lahiri, Member Enquiry Committee, Calcutta Boys' School, (f) Mr. Darryl Joseph, Presenting Officer, Enquiry Committee, Calcutta Boys' School, (g) Rev. Mahendra Mishra, Enquiry Committee, Calcutta Boys' School (h) Mr. Amit Prakash Lahiri.
3. Mr. Sudip Deb learned counsel appearing on behalf of the petitioner submits to the Court that the writ petitioner is a non-teaching staff of the said school and the enquiry proceedings initiated against the writ petitioner is not valid in the eyes of law.
4. The principle argument of Mr. Deb before this Court is that the Enquiry officer does not have the jurisdiction to hold such an 11 enquiry against the writ petitioner. It is submitted by the learned counsel that in the previous two writ petitions the point of jurisdiction was not taken by the writ petitioner. Thereafter, it is submitted that since in the earlier two writ petitions the jurisdiction of the Enquiry Officer had not been challenged, it is now not barred by any law and the same can be challenged in a subsequent writ petition. He submits that the point of jurisdiction can be taken at any point of time and neither the principle of res judicata nor the principle of constructive res judicata applies while considering the point of jurisdiction. To further buttress his argument, Mr. Deb relies on the Apex Court Judgment in the matter of Management of M/S Sonepat Co-operative Sugar Mills Ltd. -v- Ajit Singh reported in AIR 2005 SC 1050 wherein the Court has held that the principle of res judicata is not attracted when it involves the question of jurisdiction.
5. Mr. Deb further submits that by applying the principles of doctrine of necessity, the Principal, being the head of the institution, should have conducted and proceeded with the said enquiry proceedings in terms of Rules 24 and 25 of the Code of Regulation of Anglo-Indian and other listed Schools, 1993 [hereinafter referred to as the 'said code']. To support his arguments on the point of doctrine of necessity, Mr. Deb relies on two Apex Court Judgment in the matter of J. Mohapatra & Co. and Another -v- State of Orissa and Another reported in (1984) 4 SCC 103 and also in the matter of Election Commission of India and Another -v- Dr. 12 Subramaniam Swamy and Another reported in (1996) 4 SCC 104 wherein the Supreme Court has examined the Doctrine of Necessity with its exceptions.
6. Furthermore, Mr. Deb relied on Collector and Others -v- P. Mangamma and Others reported in (2003) 4 SCC 488 wherein it was held by the Supreme Court that even an authority is duty bound to first decide the question of jurisdiction if it is raised by the party. Mr. Deb relies on the Supreme Court Judgment in the matter of T.K. Lathika -v- Seth Karsandas Jamnadas reported in (1999) 6 SCC 632 wherein the Apex Court held that where question arises as to maintainability that must be decided first and only if the answer is in affirmative should the merits be gone into.
7. Mr. Deb refers to another Supreme Court Judgment in the matter of Foreshore Cooperative Housing Society Limited -v- Praveen D. Desai reported in (2015) 6 SCC 412 wherein the court held that in a case where court has no jurisdiction, it cannot confer upon itself said jurisdiction by consent or waiver of the parties. Mr. Deb further refers to another Supreme Court Judgment in the matter of Federation of Hotels and Restaurant Association of India -v- Union of India and Others reported in (2018) 2 SCC 97 wherein the court held that concession does not confer jurisdiction on the court.
13
8. Mrs. Chana Mookherji learned counsel appearing for the respondent school authorities submits before the court that the school being a minority educational institution is protected under Article 30 of the Constitution of India and as such the Writ Court should not interfere and or is precluded to interfere in matters concerning the internal administration of the school except in cases of proved allegation of mismanagement or maladministration. It is also submitted by the counsel that no case of bias or maladministration against the Managing Committee has been alleged in the writ petition by the petitioner. Counsel further submitted that the petitioner has in this third writ petition made out a case that the Enquiry Officer has acted arbitrarily in not addressing the issue regarding the maintainability of the Enquiry Proceedings to which the Enquiry Officer has correctly and categorically stated that "this is not the forum to decide the issue".
9. Further, it is submitted by Mrs. Mookherji that the Managing Committee has not delegated the 'Right to Impose Punishment' upon the Enquiry Committee and or take any decision. The role of the Enquiry Committee is limited to the extent of issuing show cause notice and if the Managing Committee finds the reply to the show cause notice unsatisfactory; ensuring an unbiased enquiry without any interference of and or by the Principal and placing the report of the Enquiry Officer before the Managing Committee. Hence, the constitution of the Enquiry Committee was essentially in 14 the interest of the employees keeping in mind the principles of natural justice, equity and good will.
10. Mrs. Mookherji submits that the writ petitioner is barred by the principles of waiver, acquiescence and estoppel to raise the issue relating to the constitution of the Enquiry Committee and or the authority of the Managing Committee to constitute the same as the same was directly in issue in the first writ petition filed by the petitioner bearing W.P. No. 524/2016. The issue relating to the constitution and or formation of the Enquiry Committee had attained finality, as soon as the Court acting on the writ petitioner's letter stating that they are willing to appear before the Enquiry Officer, passed an order recording the same. It is further submitted by Mrs. Mookherji that the instant case of the writ petitioner is hit by the principle of Estoppel and the stamp of 'finality' becomes even more stronger and indelible when the writ petitioner approached this Court for the second time bearing W.P. No. 913/2016 to seek legal assistance before the Enquiry Officer. Mrs. Mookhereji while making her submissions puts additional stress to the point that once the issue relating to the powers and functions of the Managing Committee having been expressly waived, the writ petitioners are precluded to reopen the same by raising the issue under the garb of jurisdiction of the Enquiry Officer. To support the arguments made before this Court Mrs. Mookherji relies on an Apex Court Judgment in the matter of Ishwar Dutt -v- Land Acquisition Collector and Another reported in (2005) 7 SCC 190 wherein the Court has held 15 that the principle of res judicata is the specie of the principle of estoppel and the principle of res judicata is also applicable to writ proceedings.
11. Mrs. Mookherji submits before the Court that doctrine of necessity has emerged as a common law doctrine. This doctrine was considered as an exception to the principle of natural justice but today this principle has been recognized as an alternate forum to protect the principle of natural justice, wherever the statute is silent and the situation necessitates delegation of powers. To support the argument made she relied on a Supreme Court Judgment in the matter of Lalit Kumar Modi -v- Board of Control for Cricket in India and Others reported in (2011) 10 SCC 106 wherein it was held that if a rule does not provide for substitution and it also does not also say that no substitution shall take place, that is, if the rules are silent, then situations may arise that shall necessitate such a substitution.
12. Mrs. Mookherji further submits that the said code is merely a guideline set down by the State to regulate the procedure for availing financial assistance and affiliation. The code should not be considered as a statute and hence deviation from the same cannot arm any person claiming injury from such deviation a legal right by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. To buttress her argument, Mrs. Mookherji relies on a judgment passed by Hon'ble Justice Dipankar Dutta and 16 Hon'ble Justice Asha Arora on 31st July, 2018, in the matter of Secretary, Managing Committee, Maharishi Vidya Mandir -v- Miss Viswadhara Nag and ors. reported in (2018) 5 WBLR (Cal) 346 wherein the court held that the said code does not derive its power either from a constitutional provision or a statutory provision and it is just a mere compilation of guidelines.
13. I have heard learned counsel for both the parties and perused the materials on record.
14. The four issues to be decided in the present writ petition are as follows:
(a) Whether the writ petitions are hit by the principles of res judicata/constructive res judicata and or the principles of issue estoppel and Doctrine of Finality?
(b) Whether the respondents acted in violation of the Code of Regulations for Anglo Indian and Other Listed Schools, 1993 in the manner in which they conducted the disciplinary proceedings and accordingly the same is liable to be struck down?
(c) Whether the Doctrine of Necessity required the school authorities to have conducted the disciplinary proceedings only through the Principal being the head of the institution?
(d) Whether the enquiry officer erred in law and acted in an arbitrary manner by not deciding the issue of jurisdiction?17
15. At this juncture it would be prudent to examine the various judgments cited on behalf of both the parties on the subject issue. In Ishwar Dutt (Supra) wherein the Apex Court has categorically observed that the principle of res judicata is to uphold the rule of finality of judgment and the same is absolute unless 'Fraud' or 'Collusion' is alleged. The relevant paragraphs of the Judgment are delineated below:
"18. In the Reference Court or for that matter the High Court exercising its appellate jurisdiction under Section 54 of the Act could not have dealt with the said question. The principle of res judicata is a specie of the principle of estoppel. When a proceeding based on a particular cause of action has attained finality, the principle of res judicata shall fully apply.
19. Reference in this regard may be made to Wade and Forsyth on Administrative Law, 9th Edn., p. 243, wherein it is stated:
"One special variety of estoppel is res judicata. This results from the rule which prevents the parties to a judicial determination from litigating the same question over again, even though the determination is demonstrably wrong. Except in proceedings by way of appeal, the parties bound by the judgment are estopped from questioning it. As between one another, they may neither pursue the same cause of action again, nor may they again litigate any issue which was an essential element in the decision. These two aspects are sometimes distinguished as 'cause of action estoppel' and 'issue estoppel'."
20. In Hope Plantations Ltd. v. Taluk Land Board [(1999) 5 SCC 590] this Court observed: (SCC p. 611, para 31) "31. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is 18 continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum."
21. In The Doctrine of Res Judicata, 2nd Edn. by George Spencer Bower and Turner, it is stated:
"A judicial decision is deemed final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent rescission, review, or modification by the tribunal which pronounced it...."
22. Reference, in this connection, may also be made to Ram Chandra Singh v. Savitri Devi [(2003) 8 SCC 319 : JT (2005) 11 SC 439] .
23. Yet recently in Swamy Atmananda v. Sri Ramakrishna Tapovanam [(2005) 10 SCC 51 : JT (2005) 4 SC 472] in which one of us was a party, this Court observed: (SCC p. 61, paras 26-
27) "26. The object and purport of the principle of res judicata as contended in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute-book with a view to bring the litigation to an end so that the other side may not be put to harassment.
27. The principle of res judicata envisages that a judgment of a court of concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in some other matter in another court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment."
It was further noticed: (SCC p. 64, para 42) 19 "42. In Ishwardas v. State of M.P. [(1979) 4 SCC 163 : AIR 1979 SC 551] this Court held: (SCC p. 166, para 7) 'In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim.' "
24. Yet again in Arnold v. National Westminster Bank Plc. [(1991) 3 All ER 41 : (1991) 2 AC 93 : (1991) 2 WLR 1177] the House of Lords noticed the distinction between cause of action estoppel and issue estoppel: (All ER pp. 46 C-E and 47 C-D) "Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been litigated between the same parties or their privies and having involved the same subject-matter. In such a case, the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened. ... Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue."
Here also the bar is complete to relitigation but its operation can be thwarted under certain circumstances. The House then finally observed: (All ER p. 50 C-E) "But there is room for the view that the underlying principles upon which estoppel is based, public policy and justice have greater force in cause of action estoppel, the subject-matter of the two proceedings being identical, than they do in issue estoppel, where the subject-matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not. Given that the further material which would have put an entirely different complexion on the point was at the earlier stage unknown to the party and could not by reasonable diligence have been discovered by him, it is hard to see why there should be a different result according to whether he decided 20 not to take the point, thinking it hopeless, or argue it faintly without any real hope of success."
25. In Gulabchand Chhotalal Parikh v. State of Bombay [(1965) 2 SCR 547 : AIR 1965 SC 1153] the Constitution Bench held that the principle of res judicata is also applicable to subsequent suits where the same issues between the same parties had been decided in an earlier proceeding under Article 226 of the Constitution.
26. It is trite that the principle of res judicata is also applicable to the writ proceedings. (See H.P. Road Transport Corpn. v. Balwant Singh [1993 Supp (1) SCC 552 : 1993 SCC (L&S) 282 : (1993) 23 ATC 673] .)"
16. In Secretary, Managing Committee, Maharishi Vidya Mandir (Supra) it was specifically carved out by the Division Bench of this Court that the said code is not backed by any constitutional provision or a statutory provision and is thus a mere digest of guidelines for Anglo-Indian Schools and Listed Schools. The relevant portion of the judgment is delineated below:
"27. Here we are not faced with a single service condition [regulation 21(a) and (e) of the Code] but the condition stipulated in paragraph 1 of the offer of appointment would also assume significance bearing in mind that the institution does not draw any aid from the Government. Much would, therefore, depend on our reading of the Code and in particular regulation 21(a) and (e) thereof.
29. The code is contained in a notification bearing no. 8777-Edn (S) dated December 24, 1993, which was published in the Calcutta Gazette dated January 21, 1994. The preamble reveals that the Governor considered it "expedient to provide for the regulation of Anglo-Indian and other Listed Schools in West Bengal" and, therefore, was pleased to make the regulation called "Code of Regulation for Anglo-Indian and other Listed Schools, 1993". The institution being affiliated to the Council and the medium of instruction being English, there is no dispute that it is a "Listed School" a defined in regulation 5(10) of the Code.
30. However, importantly, it does not appear from a reading of the Code that the source of power for framing it is either a 21 constitutional provision or a statutory provision. The Code, it seems to us, is a mere compilation of guidelines requiring the Anglo-Indian schools and Listed Schools [as defined in clauses (2) and (10) respectively of regulation 5], which are covered by the Code to be guided thereby for receiving grant, obtaining recognition, matters relating to management and administration, terms and conditions of service of staff including superannuation, benefits of provident fund and gratuity, grant of leave, etc. Here, we are not concerned with the constitutional validity of the Code; however, having regard to the contention of Mr. Dhar, we are required to consider whether a writ petition would be maintainable at the instance of a teacher who is aggrieved by the action of an unaided "Listed Schools" not to scrupulously abide by and/or follow the provisions of the Code.
32. A statute has the force of law. A fortiori, an order or a notification issued under a statute is "law" within the meaning of Article 13(3)(a) of the Constitution. However, an order or a notification not having the force of law cannot be comprehended within the meaning of "law" as defined in Article 13(3)(a). No doubt, the Code has been published in the Calcutta Gazette under a notification but unless the source of such notification can be traced to a statute or to the Constitution, can such notification be exalted to the status of a "law" as defined in Article 13(3)(a)? To answer this question, we may usefully refer to the decision of the Supreme Court reported in (2011) 15 SCC 398 : Syndicate Bank -v-. Ramachandran Pillai. Such decision also throws light on the question of enforceability of guidelines issued by the Government for compliance by certain persons/authorities governed thereby, at the instance of a party aggrieved by any non-compliance of the guidelines. Paragraph 6 is relevant in the context and is, accordingly, set out below:
"6. If any executive instructions are to have the force of statutory rules, it must be shown that they were issued either under the authority conferred on the Central Government or a State Government or other authority by some statute or the constitution. Guidelines or executive instructions which are not statutory in character, are not "laws", and compliance therewith cannot be enforced through courts. Even if there has been any violation or breach of such non-statutory guidelines, it will not confer any right on any member of the public, to seek a direction in a court of law, for compliance with such guidelines. An order validly made in accordance with a statute (as in this case the Public Premises Act), cannot be interfered with, even if there has been any transgression of any guidelines, except where it is arbitrary or mala fide or in violation of any statutory provision. These are well-settled principles. ***."
(underlining for emphasis by us)
36. Bearing in mind the aforesaid decisions, what we can comprehend of the Code at its highest is that it is the product of 22 exercise of executive power of the State under Article 162 of the Constitution. However, no executive action can interfere with the rights of a citizen unless backed by an existing statutory provision. If any authority on the point is required, reference may usefully be made to the decision in Bishambhar Dayal Chandra Mohan -v- State of Uttar Pradesh : (1982) 1 SCC 39. Since the Government has not been represented before us, we consider it improper to conclusively opine as to whether the Code is "law" within the meaning of Article 13(3)(a) of the Constitution or not. For the purposes of deciding this appeal, our understanding is, however, clear that if any "Listed School" does not follow the provisions of the Code to the detriment of the students studying in such a school as well as the teaching/non-teaching staff employed therein, it is open to the Government to take such action against such school which it considers appropriate on facts and in the circumstances. But guided by the principle laid down in the aforesaid decisions as well as the decisions in Krishan Lal -v- State of J & K : (1994) 4 SCC 422 and State Bank of Patiala -v- S. K. Sharma : (1996) 3 SCC 364 that a person can waive a right which is for his individual benefit, the position also seems to us to be clear that for any perceived breach of the provisions of the Code by an unaided "Listed School", to which a teacher/non-teaching staff has acquiesced and which amounts to a waiver of any right for his individual benefit, the staff aggrieved by such breach cannot approach the writ court and seek enforcement of the relevant provision which has not been adhered to and/or followed by his/her employer, unless it can be shown that the action impugned is mala fide or is so arbitrary that it offends Articles 14 and 16 of the Constitution, or is in clear violation of a statutory provision or law laid down by a competent court of law."
17. One may also take guidance from the judgment in Chanchal Kumar Chaterjee v. State of West Bengal and Ors. reported in 2019 (1) CHN (Cal) 256, wherein I have critically analysed the principles of doctrine of finality and its exceptions thereof. The relevant portion of the judgment is delineated below:
"14. Apart from the fact that the state authorities are clearly hit by the Doctrine of Approbate and Reprobate, I am of the view that the State Authorities are also prevented from re-agitating the issue relating to the manner in which recalculation has to be carried out, as the issue has been settled and reached a finality. The Supreme Court in Indian Council for Enviro-Legal Action Vs. Union of India and Ors. reported in (2011) 8 SCC 161 [Coram:
Dr. Dalveer Bhandari and H.L. Dattu, JJ.] discussed the entire issue of finality of judgement in paragraphs 103 to 142. The principle on which the 'Doctrine of Finality' is based has been delineated in paragraphs 103 and 142 that are provided below:-23
"103. The maxim interest reipublicae ut sit finis litium says that it is for the public good that there be an end to litigation after a long hierarchy of appeals. At some stage, it is necessary to put a quietus. It is rare that in an adversarial system, despite the Judges of the highest court doing their best, one or more parties may remain unsatisfied with the most correct decision. Opening door for a further appeal could be opening a floodgate which will cause more wrongs in the society at large at the cost of rights.
104. It should be presumed that every proceeding has gone through infiltration several times before the decision of the Apex Court. In the instant case, even after final judgment of this Court, the review petition was also dismissed.
Thereafter, even the curative petition has also been dismissed in this case. The controversy between the parties must come to an end at some stage and the judgment of this Court must be permitted to acquire finality. It would hardly be proper to permit the parties to file application after application endlessly. In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this Court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far reaching adverse impact on the administration of justice. ...........
..............
142. The applicants certainly cannot be provided an entry by back-door method; and permit the unsuccessful litigants to reagitate and reargue their cases. The applicants have filed these applications merely to avoid compliance with the order of the Court. The applicants have been successful in the endeavour and have not permitted the judgement delivered on 13-2-1996 to acquire finality till date. It is strange that other respondents did not implement that final order of this Court without there being any order or direction of this Court. These applications being devoid of any merit deserve to be dismissed with heavy costs."
15. Subsequently, in Union of India and Others Vs. Major S. P. Sharma and Others [Coram: Dr. B.S. Chauhan, J. Chelameswar and M.Y. Eqbal, JJ.] reported in (2014) 6 SCC 351 the Supreme Court once again elucidated the principles in paragraphs 75 to 90 with regard to the Doctrine of Finality. M.Y. Eqbal, J. observed in paragraphs 80 to 82 as follows:
"80. In M. Nagabhushana V. State of Karnataka this Court held that the doctrine of res judicata is not a technical doctrine but a fundamental principle which sustains the rule 24 of law in ensuring finality in litigation. The main object of the doctrine is to promote a fair administration of justice and to prevent abuse of process of the court on the issues which have become final between the parties. The doctrine is based on two age-old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the court that it is for one and the same cause.
81. Thus, the principle of finality of litigation is based on a sound firm principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end to litigation. The doctrine of res judicata has been evolved to prevent such anarcy.
82. In a country governed by the rule of law, the finality of a judgement is absolutely imperative and great sanctity is attached to the finality of the judgement and it is not permissible for the parties to reopen the concluded judgements of the court as it would not only tantamount to merely an abuse of the process of the court but would have far-reaching adverse effect on the administration of justice. It would also nullify the doctrine of stare decisis, a well- established valuable principle of precedent which cannot be departed from unless there are compelling circumstances to do so. The judgements of the court and particularly of the Apex Court of a country cannot and should not be unsettled lightly."
16. I would go amiss if I do no not consider the judgement delivered by the Division Bench of this High Court wherein Sanjib Banerjee, J. authoring the judgement on behalf of himself and the Hon'ble the Chief Justice had examined the issue with regard to the Doctrine of Finality and pronounced the principles thereto in Indu Bhusan Jana Vs. Union of India and Ors. reported in AIR 2009 Cal 24; (2009) 1 CHN 27[Coram: Surinder Singh Nijjar, C.J. and Sanjib Banerjee, J.]. The Principles of Doctrine of Finality have been succinctly captured in the paragraphs delineated below:
"11. Upon an order attaining finality, it matters little as to whether it was erroneous. A party aggrieved by an order has to work out his remedies within the legal framework. If an issue or the entire lis is concluded upon a finding being rendered and such finding remains unchallenged, it is no longer open to the party to undo the effect thereof at any subsequent stage or collaterally unless it is demonstrated that the finding was obtained by fraud or the Court lacked 25 jurisdiction to pass the order. The hierarchy in the judiciary exists to afford litigants to climb up the ladder in pursuit of justice and to right a wrong committed at a lower level. But if a litigant accepts an order, he does it to his prejudice and binds himself thereby.
12. The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgement becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that the issues decided may not be reopened, and has little to do with the merit of the decision. If it were to be otherwise, no dispute can be resolved or concluded. The principles of res judicata and constructive res judicata apply equally to proceedings under Article 226 of the Constitution.
13. A decision pronounced by a Court of competent jurisdiction is binding between the parties unless it is modified or reversed, by adopting a procedure prescribed by law. It is in the interest of the public at large that finality should attach to the binding decisions pronounced by a Court of competent jurisdiction and it is also in the public interest that individuals should not be vexed twice over in the assessment of the same matter in issue. Even in case of a judgement passed incuriam which is unchallenged, the efficacy and binding nature of the operative order is conclusive inter parties. The principle applies both to an order from which an appeal lies and no appeal is preferred and to an order from which no appeal is provided."
17. On an analysis of the above judgement on the Doctrine of Finality one concludes that the above Doctrine is based on two age-old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa meaning thereby that no one ought to be vexed twice in a litigationif it appears to the court that it is for one and the same cause. It is clear that once an order attains its finality, that is, it is not challenged in appeal or by way of any procedure established in law, it matters little whether such order was erroneous and bad in law. This order inter se the parties becomes final and is not open to challenge by either of the parties on a subsequent occasion. The only exceptions to the Doctrine of Finality are that the finding of the earlier order was obtained by fraud or the court lacked jurisdiction to pass the order."
18. In Management of M/s. Sonepat Co-operative Sugar Mills Ltd. (supra) the Supreme Court while deciding the jurisdiction of Court held that a jurisdictional question if wrongly decided would not 26 attract the principles of res judicata and further pronounced that an order when passed without jurisdiction, the same becomes a nullity. The relevant paragraphs are provided below:
"RES JUDICATA
27. It is true that the Appellant did not challenge the judgment of the learned single Judge. The learned Judge in support of his judgment relied upon an earlier decision of the High Court in Rajesh Garg v. Management of Punjab State Tube-well Corporation Limited and another (1984 (3) SLR 397) but failed to consider the question having regard to the pronouncements of this Court including H.R.Adyanthaya (supra). Rajesh Garg (supra) was rendered following S.K. Verma (supra), which being not a good law could not have been the basis therefor.
28. The principle of res judicata belongs to the domain of procedure. When the decision relates to the jurisdiction of a court to try an earlier proceedings, the principle of res judicata would not come into play. (See Mathura Prasad Bajoo Jaiswal (supra)).
29. An identical question came up for consideration before this Court in Ashok Leyland Ltd. v. State of Tamil Nadu and another ((2004) 3 SCC 1) wherein it was observed:
"The principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like estoppels, waiver or res judicata......"
30. It would, therefore, be not correct to contend that the decision of the learned single Judge attained finality and, thus, the principle of res judicata shall be attracted in the instant case.
19. In J. Mohapatra and Co. and Another (supra) the Supreme Court examined the Doctrine of Necessity and held that the exception to the rule that no man shall be a judge in his own cause is when the 27 Doctrine of Necessity comes into play. The relevant paragraph is provided below:
"There is, however, an exception to the above rule that no man shall be a judge in his own cause, namely, the doctrine of necessity. An adjudicator, who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is competent or authorized to adjudicate or if a quorum cannot be formed without him or if no other competent tribunal can be constituted. In such cases the principle of natural justice would have to give way to necessity for otherwise there would be no means of deciding the matter and the machinery of justice or administration would break down. Thus, in The Judges V. Attorney-General for Saskatchewan, the Judges of the Court of Appeal were held competent to decide the question whether Judges of the Court of Appeal, of the Court of King's Bench and of the District Courts of the Province of Saskatchewan were subject to taxation under the Income-tax Act, 1932, of Saskatchewan on the ground that they were bound to act ex necessitate. The doctrine of necessity applies not only to judicial matters but also to quasi-judicial and administrative matters. The High Court, however, wrongly applied this doctrine to the author-members of the Assessment Sub-Committee. It is true, the members of this Sub-Committee were appointed by a Government Resolution and some of them were appointed by virtue of the official position they were holding, such as, the Secretary, Education Department of the Government of Orissa, and the Director, Higher Education, etc. There was, however, nothing to prevent those whose books were submitted for selection from pointing out this fact to the State Government so that it could amend its Resolution by appointing a substitute or substitutes, as the case may be. There was equally nothing to prevent such non-official author-members from resigning from the committee on the ground of their interest in the matter."
20. In Dr. Subramaniam Swamy and Another (supra) the Doctrine of Necessity was once again reiterated and explained at paragraph 16 by the Supreme Court are delineated below:
"16. We must have a clear conception of the doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit 28 therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision-making. In the present case also if the two Election Commissioners are able to reach a unanimous decision, there is no need for the Chief Election Commissioner to participate, if not the doctrine of necessity may have to be invoked."
21. In light of the above judgments discussed and submissions made, the first and the leading question which comes up before this court is whether the instant writ petition is barred by the principles of res judicata or constructive res judicata and whether the order passed by this High Court on 14th July, 2016, and on 8th November, 2016, respectively has attained finality under the given facts and circumstances. Now, considering the facts of the present case it is evident that the writ petitioner has already been through two rounds of litigation in this court wherein the writ petitioner had challenged the show cause notice dated 12th April, 2016, the Order of Suspension dated 13th May, 2016, the Article of Charge dated 30th May, 2016, and the authority or the jurisdiction of the Enquiry Officer/Enquiry Committee. The writ petitions were disposed of by orders dated 14th July, 2016 and 8th November, 2016, respectively by this Court. Thereafter, this is the third writ petition filed by the writ petitioner before this court wherein the writ petitioner is directly challenging the authority of the Enquiry Officer to conduct the said disciplinary proceeding initiated under the instructions of 29 the Enquiry Committee. Mr. Deb, counsel for the petitioner had submitted that in the earlier writ petitioner the point of jurisdiction of the Enquiry Committee/Enquiry Officer had not been taken. On a factual examination of the same, I find that the submission is materially incorrect. In the writ petition bearing W.P. No. 524 of 2016 the first three grounds directly related to a challenge of the jurisdiction of the Enquiry Committee. The same are delineated below:
"I. For that the acts and activities of the respondents in purporting to issue the impugned notice of show cause dated 12.04.2016 in the facts and circumstances of the case are all illegal, malafide and opposed to all norms of procedural and other natural justices without any jurisdiction.
II. For that it is quite unheard of in service jurisprudence that the enquiry committee shall issue show cause notice, as it has been done in the instant case, while power to issue show cause notice is solely vested with the appointing authority/disciplinary authority.
III. For that the Enquiry Committee to be appointed by the disciplinary authority gets jurisdiction to enquire into the issue only when the show cause proceeding ends by issuing charge sheet and in that view of the matter show cause notice having been issued by the enquiry committee is liable to be set aside in limine."
22. In the second writ petition bearing W.P. No. 913 of 2016 paragraph 4 and grounds 5, 6 & 7 again relate to the jurisdiction of the Enquiry Committee. The same are delineated below:
"Paragraph 4. Your petitioner states that the terms and conditions of the letter of appointment of the petitioner never empowers any Enquiry Committee or any member of the Enquiry Committee to issue the notice of show cause and/or order of suspension. The member of the Enquiry Committee is nothing but a stranger in terms of the provisions of the service jurisprudence and the procedure established by law.
Grounds:30
V. For that the Enquiry Committee to be appointed by the Disciplinary authority gets jurisdiction to enquire into the issue only when the show cause proceeding ends by issuing chargesheet and in that view of the matter the show cause notice having been issued by the Enquiry Committee is liable to be set aside in limine.
VI. For that the impugned show cause notice followed by order of suspension and Article of Charges infringes the right to dignity inbuilt under Article 21 of the Constitution of India.
VI. For that in any case the tenor, tune and contents of the show cause notice shall establish the fact that the petitioner being a vital witness in a criminal trial, has been threatened by the Respondent No.4 and on that ground alone the show cause notice followed by other enquiry proceedings are liable to be set aside by this Hon'ble Court."
23. From a plain reading of the averments made in the earlier two writ petitions as also the prayers made in the earlier two writ petitions, it is clear that the jurisdiction in relation to the show cause notice, Articles of Charge, suspension letter and the jurisdiction of the Enquiry Committee were the subject matter of challenge. It is to be noted that in both the writ petitions, the points of jurisdiction was taken but was not pressed by the writ petitioner. In fact, by his own letter, the writ petitioner agreed to take part in the enquiry proceedings before the Enquiry Officer. In light of the above findings, it is clear that the petitioner did not press the point of jurisdiction. Having acted in the above manner, and without there being any allegation of fraud or collusion, the writ petitioner is now hit by the Doctrine of Finality and constructive res judicata. The view taken by me hereinabove is based on the judgments in Ishwar Dutt (supra) and Chanchal Kumar Chatterjee (supra). Accordingly, this writ petition being agitated on the same points 31 cannot be allowed. The only distinguishing feature in the present writ petition is that there is a specific challenge to the jurisdiction of the Enquiry Officer which was not present in the earlier writ petitions. However, it is to be noted that the second writ petition was filed after the proceedings before the Enquiry Officer had started and the petitioner in that writ petition had only sought for legal assistance and not pressed the point of jurisdiction. In my view, the writ petitioner is now barred from raising the jurisdictional issue with regard to the power of the Enquiry Officer based on the principles of constructive res judicata. Furthermore, it is to be seen that the power of the Enquiry Officer is not for coming to a judicial or quasi judicial finding but only for the purpose of fact finding. This is clear from the resolution that had been taken by the Enquiry Committee on 10th February, 2015. The Enquiry Officer was empowered only to conduct a fact finding enquiry in accordance with law keeping in mind the principles of natural justice, equity and fair play. His report would be given to the Enquiry Committee who would evaluate the findings and submit a report to the Chairman, that is Dr. Bishop Philip. From the above resolution it is clear that neither the Enquiry Committee nor the Enquiry Officer was empowered to judicially decide on any issue and therefore, the question of jurisdiction does not and cannot arise.
24. With regards to Federation of Hotels and Restaurant Association of India (supra) and Foreshore Cooperative Housing Society Limited (supra), one need not join issue with the same as 32 both the judgments lay down a settled principle of law that a Court that has no jurisdiction cannot confer upon itself jurisdiction by consent, concession and or waiver of the parties. In the present case, I have already indicated that neither the Disciplinary Committee nor the Enquiry Officer suffered from the vice of inherent lack of jurisdiction. Furthermore, since the Enquiry Officer was conducting only a fact finding, the question of jurisdiction does not arise. Moreover, these judgments would not apply to the particular factual matrix as these judgments are on the principles of jurisdiction of a Court while the present case deals with a disciplinary proceeding by a school authority that has complied with the principles of natural justice.
25. The argument professed by Mr. Deb that the point of maintainability was taken for the first time before the Enquiry Officer is absolutely incorrect as these points were clearly taken in the earlier two writ petitions. In light of the discussions in paragraphs 23 and 24, I am of the view that the present writ petitions challenging the jurisdiction of the Enquiry Committee/Enquiry Officer are barred by the principles of res judicata/constructive res judicata and are also hit by the principles of issue estoppel and Doctrine of Finality.
26. With regard to the second issue, the writ petitioners have argued that the school authorities were bound to deal with the disciplinary proceeding in accordance with Rule 24 and 25 of the said code. In Secretary, Managing Committee, Maharishi Vidya Mandir 33 (Supra) Division Bench of the Calcutta High Court clearly stated that the said code is merely a set of guidelines and is not backed by any constitutional or statutory provisions. In view of the above judgment cited by the respondents, I am also of the same opinion that the said code is entirely in the form of guidelines and the school authorities cannot be compelled to follow the same. By no stretch of imagination, I find that the school authorities has acted arbitrarily in appointing an Enquiry Officer for the said Disciplinary Proceeding and have acted in a manner which would have prejudiced the petitioner from enjoying his rights. I find that the said Enquiry Committee is merely a fact finding body and the role of Enquiry Officer is to smoothly conduct the Disciplinary proceedings and submit a report before the Enquiry Committee. This entire process of the disciplinary proceeding against the writ petitioner falls under the internal administration of the respondent school. Moreover, I find that none of the acts of the respondent school authorities are in violation of principles of natural justice or contrary to law. Accordingly, I hold that the proceedings of Enquiry is not contrary to any law and has been initiated keeping in mind the principles of natural justice.
27. The argument with regard to the Doctrine of Necessity need not be addressed by this Court in detail as the same is applicable to cases when an authority under a statute is required to exercise his power. As indicated in the earlier paragraphs, the Anglo Indian Code is not a statute and are merely guidelines and therefore, the principles of 34 Doctrine of Necessity would not apply in the present case. Furthermore, the Doctrine of Necessity would have applied in a situation whether authorities had directed a person conferred with the power to act in accordance with the statute ostensibly in violation of the principles of natural justice and or conflict of interest. In the present case, as the concerned person, that is, the Principal and Secretary, Dr. Raja McGee, has not been appointed as the Disciplinary Committee the application of the Doctrine of Necessity cannot and does not arise whatsoever.
28. The last argument of Mr. Deb was that the Enquiry Officer acted in an arbitrary manner by not addressing the point of maintainability/jurisdiction. I find no substance in this argument whatsoever. As pointed out earlier, the Enquiry Officer was only a fact finding body and therefore, he had no judicial powers to decide on his own jurisdiction. The judgments relied upon by Mr. Deb with regard to the jurisdiction are all in relation to courts and/or quasi judicial authorities and would not apply to a fact finding body.
29. The judgments cited by Mr. Deb, with regard to an authority being duty bound to first decide the issue of jurisdiction in Collector and Others (supra) and T.K. Lathika (supra) are not of any assistance as the same are based on completely different set of facts and deal with a quasi-judicial authority and a judicial authority respectively. 35
30. In conclusion, I am of the view that these bunch of writ petitions has only been filed for dilatory reasons and to procrastinate the disciplinary proceedings. Not only are these writ petitions barred by the principles of res judicata/constructive res judicata but also do not have any substance on merits as indicated above. The procedure established by the respondent school was carefully done for the purpose of giving a fair chance to the writ petitioners. The very action of the Managing Committee of the School Authorities to appoint a separate Enquiry Committee was to remove the bias and prejudice that may have appeared if the Principal and Secretary, Dr. Raja McGee had been directed to conduct the disciplinary proceedings. The writ petitions accordingly fail and are dismissed without any order as to costs. The School Authorities/Enquiry Committee is directed to give a copy of the enquiry report to the writ petitioners within a period of one week from date.
31. Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.
(Shekhar B. Saraf, J.)