Calcutta High Court (Appellete Side)
Pralay Kumar Sarkar vs State Of West Bengal & Ors on 9 January, 2024
Author: Aniruddha Roy
Bench: Aniruddha Roy
01-02 09.01.2024
Sc Ct. no.22
WPA 23957 OF 2017
with
I.A. No. CAN 2 OF 2022
(Application for condonation of delay)
with
I.A. No. CAN 3 OF 2022
(Application for substitution)
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Pralay Kumar Sarkar Vs. State of West Bengal & Ors.
with WPA 22075 OF 2017 with I.A. No. CAN 1 OF 2022 (Application for condonation of delay) with I.A. No. CAN 2 OF 2022 (Application for substitution)
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Pralay Kumar Sarkar Vs. State of West Bengal & Ors.
Mr. Avijit Chakraborty .... For the petitioner in the writ petitions Mr. Gourav Das .... For the State Mr. Sunit Kr. Roy .... For the Respondent Nos. 4 to 12/ School Authorities in the writ petitions Re : I.A. No. CAN 2 OF 2022
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This is an application for condonation of delay for about 342 days in seeking setting aside of abatement of a writ petition being WPA 23957 of 2017 (hereinafter 2 referred to as the second writ petition). The facts relevant for adjudication are only narrated herein.
The original writ petitioner was working as the Head Master at one South Duillya High School (H.S.), District - Howrah (for short the school). While serving as the Head Master the record reveals that, the original writ petitioner had suffered a disciplinary proceeding which resulted into suspension of the original writ petitioner. The principal charge against the original writ petitioner was, inter alia, that, he had lodged a complaint before the banker of the school with a request not to allow the managing committee of the school to expend money therefrom which, according to the original petitioner, was not being utilised in a proper manner as it was required to be done for running the affair of the school.
The original writ petitioner challenging this initiation and the continuation of the disciplinary proceeding filed a writ petition, WPA 22075 of 2017 (hereinafter referred to as the first writ petition). The same is pending before this Court.
Arising out of the said disciplinary proceeding, the original writ petitioner then suffered the order of suspension under the resolution of the managing committee dated November 25, 2016. The original writ petitioner then filed the second writ petition being WPA 23957 of 2017 as already referred to above. This is also pending before this Court.
3During pendency of these two writ petitions the original writ petitioner died on December 29, 2021.
The legal heirs filed an application for substitution in the second writ petition being I.A. No. CAN 3 of 2022. In view of the delay for about 342 days in filing the said substitution application from the date of the death of the original writ petitioner, the instant application I.A. No. CAN 2 OF 2022 was taken out praying for condonation of delay and setting aside of the abatement.
Mr. Avijit Chakraborty, learned counsel appearing for the legal heirs, who are the applicants before this Court today submits that, the disciplinary proceeding is still pending before the appropriate authority of the West Bengal Board of Secondary Education (for short the board). However, the board is not impleaded in the writ petitions.
Learned counsel for the legal heirs/applicants submits that, the legal heirs has a right to proceed and contest the disciplinary proceeding since the initiation and continuation thereof including the result of suspension of the original writ petitioner was illegal and/or without jurisdiction per se.
Mr. Sunit Kr. Roy, learned counsel appearing for the respondent nos.4 to 12 being the school authority submits that, the school authority had forwarded all the documents pertaining to the disciplinary proceeding including the inquiry report prepared by the inquiry 4 officer before the board and the board is in seisin of the disciplinary proceeding. He submits that, to come to a logical conclusion of the said disciplinary proceeding some fact finding inquiry is also required to be made for which the board is the appropriate authority.
Mr. Gourav Das, learned counsel appearing for the respondent nos. 1 to 3 in both the writ petitions submits that, the State authority has no role to play at this juncture until and unless the disciplinary proceeding reaches to its logical conclusion.
After considering the rival contentions of the parties and on perusal of the materials on record, this Court first proceeds to discuss the law as to whether substitution of the legal heirs are permitted in the fact situation of this case.
In the matter of : Puran Singh & Ors. -vs. State of Punjab & Ors. reported at (1996)2 SCC 205, the Hon'ble Supreme Court had observed as under :
"6. Even before the introduction of the explanation to Section 141 of the Code, this Court had occasion to examine the scope of the said section in the case of Babubhai Muljibhai Patel v. Nandlal Khodidas Barot. It was said:
(SCC p. 715, para10) 'It is not necessary for this case to express an opinion on the point as to whether the various provisions of the Code of Civil Procedure apply to petitions under Article 226 of the Constitution. Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words 'as far as it can be made applicable' make it clear that, in applying the various provisions of 5 the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226.' It can be said that in the judgment aforesaid, this Court expressed the view that merely on basis of Section 141 of the Code it was not necessary to adhere to the procedure of a suit in writ petitions, because in may cases the sole object of writ jurisdiction to provide quick and inexpensive remedy to the person who invokes such jurisdiction is likely to be defeated. A Constitution Bench of this Court in the case of State of U.P. V. Dr. Vijay Anand Maharaj said as follows:
"It is, therefore, clear from the nature of the power conferred under Article 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdictions, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extraordinary original jurisdiction."
7. When the High Court exercises extraordinary jurisdiction under Article 226 of the Constitution, it aims at securing a very speedy and efficacious remedy to a person, whose legal or constitutional right has been infringed. If all the elaborate and technical rules laid down in the Code are to be applied to writ proceedings the very object and purpose is likely to be defeated. According to us, in view of the conflicting opinions expressed by 6 the different courts, Parliament by the aforesaid amending Act introduced the explanation saying that in Section 141 of the Code the expression 'proceedings' does not include "any proceedings under Article 226 of the Constitution" and statutorily recognised the views expressed by some of the courts that writ proceedings under Article 226 of the Constitution shall not be deemed to be proceedings within the meaning of Section 141 of the Code. After the introduction of the explanation to Section 141 of the Code, it can be said that when Section 141 provides that the procedure prescribed in the Code in regard to suits shall be followed, as far as it can be made applicable "in all proceedings in any court of civil jurisdiction" it shall not include a proceeding under Article 226 of the Constitution. In this background, according to us, it cannot be held that the provisions contained in Order 22 of the Code are applicable per se to writ proceedings. If even before the introduction of the explanation to Section 141, this Court in the case of Babubhai v. Nandlal had said that (SCC Headnote p. 707) the words "as far as it can be made applicable" occurring in Section 141 of the Code made it clear that, in applying the various provisions of the Code to the proceedings other than those of a suit, the court has to take into consideration the nature of those proceedings and the reliefs sought for after introduction of the explanation the writ proceedings have to be excluded from the expression 'proceedings' occurring in Section 141 of the Code. If because of the explanation, proceeding under Article 226 of the Constitution has been excluded, there is no question of making applicable the procedure of Code "as far as it can be made applicable" to such proceeding. The procedures prescribed in respect of suit in the Code if are made applicable to the writ proceedings then in many cases it may frustrate the exercise of extraordinary powers by the High Court under Articles 226 and 227 of the Constitution.
8. But then can it be said that as the provisions of Order 22 of the Code are not applicable to writ petitions, the party who has invoked the jurisdiction of the High Court by filing such writ petition under Articles 226 and 227 of the Constitution is at liberty to proceed with such writ petitions against a dead respondent? Can the High Court pass an order without hearing the legal representative of such deceased respondent even in cases where right to sue 7 survives against the legal representative of such deceased respondent? If such legal representative is not brought on the record, any order passed against the original respondent after his death shall not be binding on them because they have not been heard. The order of the High Court shall be deemed to have been passed against a dead person. If the right of the petitioner to pursue the remedy survives even after the death of the original respondent to the writ petition, then on the same principle even the right to contest that claim survives on the part of the legal representative of the deceased respondent. In such a situation, after the death of the respondent if the right to sue survives against the legal representative of such respondent, then the petitioner has to substitute the legal representative of such respondent before the writ petition can proceed and can be heard and disposed of. The petitioner has to take steps for substitution of legal representative within a reasonable time. It need not be impressed that it will be unreasonable on the part of the court to implead the legal representative of the deceased respondent after lapse of several months or years and then to direct them to contest the claim of the petitioner merely on the ground that after the death of the original respondent the right, title or the interest of such respondent has devolved on them. .....................................................................
10. On a plain reading, Section 141 of the Code provides that the procedure provided in the said Code in regard to suits shall be followed "as far as it can be made applicable, in all proceedings". In other words, it is open to make the procedure provided in the said Code in regard to suits applicable to any other proceeding in any court of civil jurisdiction. The explanation which was added is more or less in the nature of proviso, saying that the expression 'proceedings' shall not include any proceeding under Article 226 of the Constitution. The necessary corollary thereof shall be that it shall be open to make applicable the procedure provided in the Code to any proceeding in any court of civil jurisdiction except to proceedings under Article 226 of the Constitution. Once the proceeding under Article 226 of the Constitution has been excluded from the expression 'proceedings' occurring in Section 141 of the Code by the explanation, how on basis of Section 141 of the Code any procedure 8 provided in the Code can be made applicable to a proceeding under Article 226 of the Constitution? In this background, how merely on basis of Writ Rule 32 the provisions of the Code shall be applicable to writ proceedings? Apart from that, Section 141 of the Code even in respect of other proceedings contemplates that the procedure provided in the Code in regard to suits shall be followed "as far as it can be made applicable". Rule 32 of Writ Rules does not specifically make provisions of Code applicable to petitions under Articles 226 and 227 of the Constitution. It simply says that in matters for which no provision has been made by those rules, the provisions of the Code shall apply mutatis mutandis insofar as they are not inconsistent with those rules. In the case of Rokyayabi v. Ismail Khan in view of Rule 39 of the writ proceedings rules as framed by the Karnataka High Court making the provisions of Code of Civil Procedure applicable to writ proceedings and writ appeals, it was held that the provisions of the Code were applicable to writ proceedings and writ appeals.
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12. As such even if it is held that Order 22 of the Code is not applicable to writ proceedings or writ appeals, it does not mean that the petitioner or the appellant in such writ petition or writ appeal can ignore the death of the respondent if the right to pursue remedy even after death of the respondent survives. After the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such respondent within a reasonable time. For purpose of holding as to what shall be a reasonable time, the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased defendant or the respondent. However, there is no question of automatic abatement of the writ proceedings. Even if an application is filed beyond 90 days of the death of such respondent, the Court can take into consideration the facts and circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representative. This power has to be exercised on well-known and settled principles in respect of exercise of discretionary power by the High Court. If the High Court is satisfied that delay, if any, in substituting the heirs of the 9 deceased respondent was not intentional, and sufficient cause has been shown for not taking the steps earlier, the High Court can substitute the legal representative and proceed with the hearing of the writ petition or the writ appeal, as the case may be. At the same time the High Court has to be conscious that after lapse of time a valuable right accrues to the legal representative of the deceased respondent and he should not be compelled to contest a claim which due to the inaction of the petitioner or the appellant has become final."
Law is thus that, the rigour of Order XXII of the Code of Civil Procedure is not applicable to a writ proceeding but that does not mean the petitioner in the writ petition can ignore the death of the deceased party if ultimately the right of the legal heirs survives. In the fact of this case, because of the pendency of the disciplinary proceeding which was initiated during the lifetime of the original writ petitioner was challenged by the original writ petitioner during his lifetime but during pendency of such challenge in these two writ petitions he had died, all his employment benefits are stuck and withheld by the State authority. The legal heirs definitely have a right to claim the retiral benefit of the deceased original writ petitioner.
To establish that right or to have it negated in the established procedure of law, the legal heirs shall have to contest the said disciplinary proceeding. If the disciplinary proceeding does not survive on merit then, of course, the right of the legal heirs would accrue to receive the employment benefit of the original writ petitioner and 10 if the disciplinary proceeding succeeds then also the law will take its own course.
In view of the foregoing reasons and discussions, this Court is of the considered view that, the legal heirs who are the applicants before this Court shall have a right to contest the disciplinary proceeding and these two writ petitions.
Inasmuch as, unless the delay is condoned and the abatement, if any, is not set aside in the pending two writ proceedings, the legal heirs who are the applicants before this Court having a substantive right shall be prejudiced and such a valuable right cannot be taken away under the rigour of procedural law.
For the foregoing reasons this Court is of the considered view that, the delay occurred in applying for setting aside of abatement, if any, shall have to be condoned.
Accordingly, the delay stands condoned and abatement, if any, in the writ proceeding stands set aside.
Accordingly the application being I.A. No. CAN 2 of 2022 filed in WPA 23957 of 2017 stands allowed, without any order as to costs.
Re : I.A. No. CAN 3 OF 2022
In
WPA 23957 OF 2017
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This is an application for substitution filed in the second writ petition.
11In view of the observation made by this Court and the order passed in I.A. No. CAN 2 of 2022 filed in WPA 23957 of 2017, the application for substitution being I.A. No. CAN 3 of 2022 stands allowed.
Re : I.A. No. CAN 1 OF 2022
In
WPA 22075 OF 2017
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In view of the observation made by this Court and the order passed in I.A. No. CAN 2 of 2022 filed in WPA 23957 of 2017, the application for condonation of delay being I.A. No. CAN 1of 2022 stands allowed.
Re : I.A. No. CAN 2 OF 2022 In WPA 22075 OF 2017
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In view of the observation made by this Court and the order passed in I.A. No. CAN 3 of 2022 filed in WPA 23957 of 2017, the application for substitution being I.A. No. CAN 2 of 2022 stands allowed.
The applicant legal heirs shall cause the necessary substitution in the original two writ petitions viz. WPA 22075 of 2017 and WPA 23957 of 2017 in accordance with law.
The applicants legal heirs shall also implead the West Bengal Board of Secondary Education through its appropriate authority as a party respondent in both the writ petitions for the ends of justice.
After carrying out and completion of the entire exercise as directed above, the applicants shall be at 12 liberty to mention the two writ petitions for its final disposal upon notice to the respondents.
(Aniruddha Roy, J.)