Calcutta High Court
Raghu Nandan Mondal vs The Appeal Committee, West Bengal Board ... on 20 November, 1991
Equivalent citations: (1992)1CALLT219(HC)
JUDGMENT Khwaja Mohammad Yusuf, J.
1. A petition was filed under Article 227 of the Constitution of India by the petitioner with the prayer for a direction upon the respondents particularly the Appeal Committee of the West Bengal Board of Secondary Education to hear out the appeal which was preferred on 15th June, 1989 as well as against the order of suspension of the petitioner dated 5th June, 1989 passed by the Headmaster of Bhaluka R. M. M. M. Vidyapith (H. S.) in the District of Malda. I granted the order of status quo on 19th June, 1989. When the matter came up for hearing on 28th June, 1989 a question of importance cropped up as to whether a revisional application can be moved without the certified copy of the order complained of and whether without the certified copy the Court can entertain and proceed with the application under Article 227. In fact, the point of maintainbility of the application under Article 227 of the Constitution without a certified copy was raised and it became necessary for the Court to deal first with this question and then to proceed with other points raised in the petition- The Court requested Mr. Asok Kumar Ganguly, a learned Advocate of this Court, to act as amicus curide and he agreed.
2. Mr. Kabir, the learned Advocate for the petitioner (since elevated to the Bench), argued that under Part II Chapter V of General Rules of Procedures of the High Court Appellate Side Rule it is stated under Rule 9 as under:
"In the case of an application for revision, the application shall be accompained by certified copies of each of the following documents :-
(i) the judgment, decree or order to which the application relates;
(ii) if the judgment, decree or order to which the application relates was a judgment, decree or order delivered by a Court sitting in appeal, the copies of the judgment, decree or order of the court of first instant."
Here the learned Advocate submitted that the point relates to Rule 9(i). It is contended by Mr. Kabir that often petitions moved under Article 227 of the Constitution are not accompanied with certified copies because sometime it is difficult to obtain the certified copies from the authority serving the orders and it is seen so many times that the authorities serving the order cannot deliver any certified copy of the order because such procedure are not application by them. In the instant case it was not possible on the part of the School concerned to deliver the certified copy of the impugned order which has been given to the teacher signed by the Secertary under his seal-Similarly, even if the Appeal Committee passes any order for or against the petitioner, the Appeal Committee shall serve the order through the proper authority of the West Bengal Board of Secondary Education under its seal and no certified copy as understood in general term can be given by the Board. The difficulties must be considered before coming to a conclusion regarding the maintainability of a petition under Article 227 of the Constitution.
3. Mr. Ganguly who helped the Court as amicus curiae compared the provision of Article 227 of the Constitution which refers to Courts and Tribunals, and the High Court shall have superintendence over all Courts and Tribunals throughout its territory as well the provision Under Section 122 of the Code of Civil Procedure which gives the power to High Courts to make rules regulating their procedure and the procedure of Civil Codes subject to their superintendence and may by such rules annul, alter or add to all or in all the rules in the First Schedule. According to him Rule 9 of the Appellate Side Rule under Chapter V as quoted above has been framed under such authority. He submitted that under Article 227 the High Court exercises power for the ends of justice and the Rules and Procedures should not stand in the way while dispensing justice. In this connection he cited a number of decisions in support of his contentions which are noted as follows : (i) (Waryan Singh and Anr. v. Amarnath and Anr.); (ii) 37 CWN 201 (Manmatha Nath Biswas v. Emperor) ; (iii) (Satyanarayan Nathany and Ors. v. Union of India); (iv) (State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela); (v) (Aswini Kr. Pramanik v. Dominion of India); (vi) (State of Uttar Pradesh v. District Judge, Unnao and Ors); and (vii) (Jay Jay Ram Manohar Lal v. National Building Material Supply, Gurgaon).
4. Now I take up the matter point by point. An application under Article 227 of the Constitution comes under Rule 9 of Part II Chapter V of the Appellate Side Rules of the Calcutta High Court. Such application is moved under the revisional jurisdiction of the High Court and shall be accompained by certified copy of the judgment, decree or order to which the application relates. Article 227 of the Constitution is quoted as under :-
"(1) Every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) without prejudice to the generality of the foregoing provision, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, eutries and accounts shall be kept by the officers of any such courts-
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein :
Provided that any rules made, forms prescribed or tables settled under Clause (2) or Clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor-
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or . under any law relating to the Armed Forces."
5. In Clause (2) (b) of Article 227 it is stated that the High Court may make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts. So far as general rules are concerned I have already referred to Rule 9 and quoted the same at the beginning which indicates that an application for revision shall be accompanied with the judgment, decree or order to which the application relates and a revisional application under Article 227 comes under this rule. In this connection it. is necessary to point out an extract from the order by Mr. Justice Chittatosh Mookherjee and Justice R. K. Sharma (as Their Lordships then were) passed in C. R. No. 1124 of 1982 on 6th July, 1982 and the same is quoted as follows :-
"The Registrar, Appellate Side, is directed to note that lately it has come to our notice while dealing with lawazima matters that in breach of the Appellate Side Rules, Civil Rules have been drawn up in cases where certified copies of the orders complained of have not been annexed to the revisional applications either Under Section 115 of the Civil Procedure Code of under Article 227 of the Constitution of India. In our view, it is desirable that the attention of the Assistant Registrars (Court) should be drawn to the relevant provisions of the A. S. Rules which provide such filing of the certified copies is compulsory."
6. The learned Judges drew the attention of the Registrar, Appellate Side, to the relevant provisions of the Appelate Side Rules regarding annexing the certified copies with revisional applications. In my humble opinion, this is not a part of the judicial order but a directive to the Registrar to implement the relevant Rules of the Appellate Side-
7. It is the experience of this Court that in many revisional applications moved under Article 227 of the Constitution it is not possible for the petitioners to enclose certified copies of the impugned order complained of and in many cases it is not possible for the petitioners to obtain such copy because there is no provision, by the authority concerned to provide certified copies. Take for instance the instant case, the suspension order was passed by the Headmaster of the School under his signature and seal and it is not possible for the Headmaster to provide a certified copy of the suspension order. Also it is not possible for the Appeal Committee of the West Bengal Board of Secondary Education to provide a certified copy because there is no such procedure in the Board but the decision shall be communicated/ sent by the authority to the person concerned under the signature of the authorised officer and seal of the Board and if the Court does not entertain the revisional application under Article 227 on this ground which is a mere technicality then it will certainly be a denial of justice.
8. In (supra) a Bench of the Supreme Court headed by Chief Justice Mahajan categorically stated that the material part of Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, except that the power of superintendence has been extended by Article 227 also to tribunals. Further, the preponderence of judicial opinion in India was that Section 107 which was similar in terms to Section 15 of the High Courts Act, 1861 gave a power of 'judicial' superintendence to the High Court apart from independently of the provisions-of other laws conferring revisional jurisdiction on the High Court. A 5-Judge Bench led by Chief Justice Hedayatullah stated that Article 227 of the Constitution gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. The jurisdiction cannot be limited . Prohibition and Mandamus of English law are not the sole forms of superintendence which are a guide to the character of the power conferred by Section 107 of the Act but also the writ of certiorari (37 CWN 201, supra). Even the constitutional power under Article 227 can be exercised suo motu and do not require any application for the purpose supra and the High Court can and should interfere under Article 227 when the refusal to pass the order would result in real injustice to the party , supra. The Supreme Court in the case of State of Uttar Pradesh v. District Judge, Unnao (supra) has specifically held that "injustice was caused due to rigid and inflexible view of jurisdiction under Article 227. Article 227 or Article 226 was devised to advance justice and not to thwart it". In AIR 1969 SC 1269' (supra) it has been clearly held by the Supreme Court that "Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence,, inadvertence or even infraction of the Rules or Procedure" The Calcutta High Court in (Haripada Dutta v. Ananta Mandal) explained that the word 'tribunal' in Article 227 means, a person or a body, other than a Court set up by the state for deciding rights between contending parties in accordance with rules having the force of law and, doing so, not by way of taking executive action but of determining a question. The decision reported in 79 CWN 31 (Radkaraman Das v. Appeal Committee of the W. B. Board of Secondary Education and Ors.) made it clear that "The Appeal Committee set up Under Section 22 of the West Bengal Board of Secondary Education Act, 1963 is a tribunal over which the High Court has the power of superintendence under Article 227 of the Constitution"
9. Mr. P. Dutta, the learned Advocate appearing on behalf of the Managing Committee of the School, referred to the Rules of procedure as contained in Maxwell's interpretation of Statutes. It is stated there on the basis of some English decisions that enactments regulating the procedure in courts since usually to be imperative and not merely directory and non-compliance would be fatal to the appeal. But the reference to Maxwell has been made with regard to giving notice of appeal and entering into recognisance or transmitting documents within a certain time and not with the subject matter with which I am dealing in the light of so many decisions cited above. Mr. Dutta's reference to (Narbada Prasad v. Chhaganlal) has no bearing with this matter as it relates to the requirements of valid nomination paper and electoral roll or certified copy of the relevant entry therein. The decision (State of Uttar Pradesh v. Singhara Singh) is not directly on the point and the contention of Mr. Dutta that one cannot come under Article 227 without certified copy in revisional jurisdiction is a matter of adjudication.
10. It is crystal clear from the discussion made hereinbefore that Article 227 of the Constitution is meant for the ends of justice and not to create obstacles in the way of the petitioners. The Rules framed by the High Court is a subordinate legislation and cannot override the constitutional provisions. The revisional power can be controlled by Statutes or Rules but not the power of superintendence under Article 227(1) of the Constitution. Article 227(2)(b) states that the High Court "may make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts". The High Court Appellate Side Rules regarding the documents to accompany a revisional application is in Rule 9 of Chapter V Part II and in particular Rule 9(i) such application would be acompanied by certified copies of judgment, decree or order to which the application relates. This Appellate Side Rules of the Calcutta High Court is of general nature so far as the revisional applications are concerned including civil, criminal Article 227 and other revisional applications. But there is no special Rules of revisional application under Article 227 which gives the High Court authority of superintendence over all courts and tribunals throughout the territories in relation to which it exercise jurisdiction. It is required that like Rules under Article 226 of the Constitution of Calcutta High Court relating to writ applications there must be separate Rules so far as Article 227 is concerned. Articles 227 gives wide power of interference to High Court in matters of (i) erroneous assumption or excess of jurisdiction , Rukura-nand v. State of Bihar); (ii) refusal to exercise jurisdiction (AIR 1964 SC 1320, Dahya Lal v. State of Maharashtra); (iii) error of law apparent on the face of the record, as distinguished from a mere mistake of law or error of law relating to jurisdiction (AIR 1968 SC 141, State of Gujarat v. Vakhat Singhji); (iv) violation of principles of natural justice (1958 SCR 302, D. N. Banerji v. Mukherjee); (v) arbitrary or capricious exercise of authority or discretion (AIR 1958 SC 312, Santosh v. Mool Singh); and (vi) arriving at a finding which is perversed or based on no material (AIR 1968 SC 1895, Nibaran v. Mahendra). In such a wide and panoramic jurisdiction of power under Article 227 and as expanded from time to time by the Supreme Court in its various rulings it is necessary that the rigid Appellate Side Rule 9 must be relaxed so far as revisional application under Article 227 of the Constitution is concerned. Dependence upon Section 141 of the Code of Civil Procedure will not serve the purpose so far Article 227 is concerned.
11. Having considered all aspects of the case I respectfully hold that Rule 9 of the Appellate Side Rules of the Calcutta High Court as contained in Chapter V Part II thereof must not be insisted upon in each and every revisional application under Article 227 of the Constitution of India. Wherever it is not possible for the authority to provide any certified copy of the impugned order or where there is no practice of providing any certified copy of any communication or order as under Rule 9 as aforesaid, the said Rule 9 shall have no application and the Court shall proceed on the basis of the impugned order passed under the signature and seal of the authority concerned. The revisional application under Article 227 of the Constitution of India without certified copy of the impugned order is maintainable.
12. The point on maintainability of the revisional application under Article 227 of the Constitution of India without certified copy of the impugned order is decided accordingly.
13. The Court thanks Mr. Asok Kumar Ganguly, the learned Advocate, for his able and helpful assistance to the Court as amicus curiae.
14. Let this writ application be listed for hearing on merit in the Supplementary List of 10th December, 1991.