Calcutta High Court (Appellete Side)
Sri Sajal Kumar Biswas & Ors vs The State Of West Bengal & Ors on 30 January, 2009
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
A.S.T. No. 2724 of 2008
Sri Sajal Kumar Biswas & Ors.
Vs.
The State of West Bengal & Ors.
For the Petitioners: Mr. Kalyan Bandyopadhyay,
Mr. Debasish Das.
For the Calcutta University: Mr. Bikas Ranjan Bhattacharjee,
Mr. Subhayu Banerjee.
For the State respondent: Mr. Fazlul Haque,
Mr. Gautam Banerjee.
For the Behala College: Mr. Raja Basu Chowdhury. Judgment on : 30.01.2009.
S.P. Talukdar, J.: Challenging the notice, copy of which has been annexed to the writ application (Annexure-'P-4'), the petitioners approached this Court with an application under Article 226 of the Constitution for redressal of their grievances.
The facts of the case are :-
The petitioners were elected as members of the teachers' representatives to the Governing Body, Behala College, Parnashree Pally, Kolkata in the two meetings held on 28.8.2006 and 2.9.2006 respectively. The President of the Governing Body was elected on 19.10.2006. The petitioners have been functioning as members of the Governing Body since then. Such Body is valid till September, 2010.
To their utter shock and surprise, they found that the Principal of the said College issued a notice dated 20th December, 2008 to the effect that 'the election of four teachers' representatives to the Governing Body in the two meetings held on 28.8.2006 and 2.9.2006 are declared irregular and null and void'.
It was also intimated that under such circumstances, a fresh meeting would be held on 5th January, 2009 for reelection of four teachers' representatives to the Governing Body. Petitioners made an application before the respondent No. 7 on 22.12.2008 for obtaining a copy of the order but the said authority did not supply the same. On 22nd December, 2008, thirteen teachers of the said College submitted an application to the Principal, being respondent No. 7 requesting him to call a meeting of teachers' council for discussion in respect of cancellation of four teachers' representatives to the Governing Body. But there had been no response whatsoever.
Mr. Kalyan Bandyopadhyay, appearing as learned Counsel for the petitioners, sought to assail the notice on the ground that the authority concerned was not at all justified in issuing such a notice without affording an opportunity of hearing to the writ petitioners. It was submitted that the said notice does not assign any reason and clearly does not also refer to any such material indicating that the petitioners were given an opportunity of hearing. The said notice has been further assailed on the ground that it does not clearly and exactly refer to the authority which declared such election of the writ petitioners as illegal and null and void. It was emphatically submitted that the relevant statutory provisions do not permit any authority other than the Registrar to adjudicate any dispute relating to election. The fact that the Governing Body has been functioning for a period of two years with such writ petitioners as teachers' representatives was also highlighted in course of hearing of the matter.
On the other hand, Mr. Bikas Ranjan Bhattacharjee, appearing as learned Counsel for the respondent-Calcutta University, submitted that the election, as held, suffers from inherent infirmity since there could be no scope for holding of election in two meetings. It was also contended by Mr. Bhattacharjee that the writ application, if not amended, has now become infructuous in view of the changed circumstances arising out of holding of fresh election and consequently, election of teachers' representatives. He submitted that such representatives so elected on the basis of the election as held need also be made respondents in this case and they must be given an opportunity to place their stand.
For effective appreciation of the controversy as raised in the application, this Court issued necessary direction for getting the view of the Principal of the Behala College. Mr. Basu Chowdhury, appearing as learned Counsel for the said respondent, appears to have taken a stand similar to the one taken by the University. Mr. Basu Chowdhury submitted that the Principal of the College had no option but to act as per direction issued by the University.
It was submitted on behalf of the petitioners that such communication and the purported 'notice' dated 20th December, 2008 exposes the inherent hollowness in running of administration in the academic institutions. It was not in conformity with the rules of Statute or Calcutta University Act, 1979. Whether such decision was taken by any appropriate legal authority or not could not be gathered from the contents of the said 'notice'. It was further contended that the verbal declaration by the Principal and members of the inspection team and their suggestions to conduct fresh election in the category of teachers' representatives could not have had any legal basis.
Mr. Bandyopadhyay categorically asserted that the competent authority to deal with any allegation regarding holding of election is the Registrar and there is also time limit prescribed in the relevant rule. No other authority can adjudicate such a dispute relating to election. It was submitted that no complaint was made and the present writ petitioners continued to function as teachers' representatives for well about two years. It was not permissible on the part of any authority whatsoever to remove them in such unceremonious manner and direct holding of fresh election. It was contended that a thing is required to be done strictly in accordance with the rule as prescribed. If there is no authority prescribed in the relevant statute/rule, a person aggrieved may very well knock the door of the Civil Court.
Referring to the decision of the Apex Court in the case of Umesh Shivappa Ambi & Ors. Vs. Angadi Shekara Basappa & Ors., as reported in JT 1998 (5) SC 347, it was submitted that the Court will not ordinarily interfere where there is an appropriate or equally efficacious remedy available, particularly in relation to election disputes.
In the case of Unit Prasad Singh Vs. State of Jharkhand & Ors., as reported in 2007-II-LLJ page-641, it was submitted that the authority with jurisdiction as prescribed can only give declaration regarding legality or propriety of any election.
Mr. Bandyopadhyay added that in the present case, no such dispute having been raised before the appropriate authority i.e. the Registrar, it was illegal on the part of the apparently invisible authority to cancel the election of the writ petitioners as teachers' representatives.
Mr. Bandyopadhyay sought to derive inspiration from the decision of the Apex Court in the case of B. Prabhakar Rao & Ors. Vs. State of Andhra Pradesh & Ors., as reported in AIR 1986 SC 210. This was in the context of a submission that it would be inappropriate on the part of the respondents to raise the plea that the relief as sought for, if granted, might lead to chaos in the running of the institution. The relevant observation of the Hon'ble Apex Court quoting extensively from observation made by Lord Denning is reproduced :-
"We are afraid we are unable to agree with this submission. Those that have stirred up a hornet's nest cannot complain of being stung. The argument about administrative chaos has been well met by Lord Denning M.R. in Bradbury v. London Borough of Enfield, (1967) 2 All ER 434, where the Master of Rolls in his characteristic and forceful way observed:
"It has been suggested by the Chief Education Officer that, if an injunction is granted, chaos will supervene. All the arrangements have been made for the next term, the teachers appointed to the new comprehensive schools, the pupils allotted their places, and so forth. It would be next to impossible, he says, to reverse all these arrangements without complete chaos and damage to teachers, pupils and public. I must say this : if a local authority does not fulfil the requirements of the law, this Court will see that it does fulfil them. It will not listen readily to suggestions of 'chaos'. The department of education and the council are subject to the rule of law and must comply with it, just like everyone else. Even if chaos should result, still the law must be obeyed but I do not think that chaos will result."
In course of submission, reference was further made to the decision of the Apex Court in the case of Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors., as reported in AIR 1978 SC 851. It is well settled that 'when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.
Mr. Basu Chowdhury, as learned Counsel for the respondent, submitted that the Principal had no option but to act in accordance with the direction of the respondent University. It had no independent role to play.
Mr. Bikas Ranjan Bhattacharjee on behalf of the University submitted that the election of the writ petitioners in the category of teachers' representatives was not legally valid. It was detected during inspection. The University found irregularities and accordingly, directed the College to undo the wrong. He submitted that even in absence of a complaint, the University having found defect at the time of regular inspection could not be expected to keep quiet and indifferent. In response to the decisions relied upon by learned Counsel for the writ petitioners, Mr. Bhattacharjee submitted that those decisions do no lend any support to the claim of the writ petitioners. According to him, the decision in the case of Umesh Shivappa Ambi & Ors. (Supra) rather directs a writ Court to be cautious in exercise of its jurisdiction under Article 226 of the Constitution.
Referring to the decision in the case of Unit Prasad Singh (Supra), it was submitted that the learned Division Bench of the Jharkhand High Court proceeded on the basis of a particular statute. It was then submitted that in pursuant to the notice being Annexure-'P- 4', election had only been held and in place of the writ petitioners, others have duly been elected. At this stage, nothing should be done to unsettle the state of affairs.
In this context, it is, perhaps, necessary to mention that if the foundation is bad, anything built on that foundation is also bad. If the authority which took the decision of cancelling the earlier election did not have the competence to do so, the impugned notice cannot stand the test of judicial scrutiny. It also cannot be lost sight of that the writ petitioners have been functioning as the teachers' representatives for long two years. There had been no complaint. No occasion for any adjudication by the Registrar. The purported notice does not assign any reason. It does not give the affected or aggrieved persons any opportunity of hearing.
The affidavit, sworn by the respondent on 16.1.2009, was filed on 20th January, 2009, though direction was given for filing of the same by 19.1.2009.
It appears therefrom that since election held on 28.8.2006 was not cancelled and teachers' representatives were elected in the two meetings dated 28.8.2006 and 2.9.2006 respectively, it was not in accordance with the statute 93(1)(c) of the Calcutta University First Statute.
Materials annexed to the affidavit go a long way to indicate that the authority concerned chose to proceed on the basis of the opinion of the Lawyer-in-Charge of Calcutta University. And, letter of the Principal dated 7th January, 2009 addressed to the Vice- Chancellor, University of Calcutta, shows that the Principal declared the election of four teachers' representatives in the Governing Body as irregular, null and void. Question had been raised as to whether the Principal had the competence to do so. In the affidavit-in- opposition filed by the respondent Nos. 2, 3, 4 and 5, virtually the same stand was taken but it failed to lead light amidst the encircling gloom.
Mr. Bikas Bhattacharjee invited attention of the Court to the relevant provision relating to duties of a Principal. No doubt, as a Principal of an Institution, one shall be in overall charge of the administration of a College. But policy matters are required to the decided only by the Governing Body. The question relating to legality of a Governing Body does not seem to be left for the decision of the Principal. At least no such provision could be shown at the time hearing of the application. It is quite interesting to note that no action has been taken regarding the election of the President of the concerned body. This makes it difficult for the Court to brush aside the apprehension that the authority concerned chose to act selectively and, if so, it cannot be said to be free from bias.
It is possibly needless to mention that as a consequence of such act whereby the election of the writ petitioners as teachers' representatives was declared null and void, serious prejudice was caused to them.
In such circumstances, it is difficult, if not impossible, to allow the said impugned notice to stand. Consequently, anything done in pursuant to the said notice also cannot stand. It is the settled position of law in any civilized country, which believes in the rule of law that law must be obeyed in its true letter and spirit. It is very weak stand that subsequent election having already taken place, any interference by this Court at this stage is likely to have disastrous consequences. I feel tempted to quote 'Romain Rolland' who said: 'When order is injustice, disorder is the beginning of justice'.
Here in the present case, this Court finds it difficult to appreciate the manner in which attempt was made apparently to take care of an alleged illegality. The authority concerned failed to take appropriate action in accordance with the rules. That having not been done this writ Court cannot afford to remain a passive onlooker. So far this Court's jurisdiction is concerned, it can only be said that hands of law are long and strong enough to reach injustice, wherever it is.
Considering all such facts and circumstances, this Court finds it difficult to brush aside the grievances as raised in the present writ application. The present application being A.S.T. No. 2724 of 2008 be accordingly allowed. Impugned notice being Annexure-'P-4' to the writ petition be quashed.
Respondents are directed not to take any step whatsoever in pursuant to the said notice being Annexure-'P-4' and if already taken, such respondents are directed not to give any further effect to the same.
There is no order as to costs.
Xerox certified copy of the judgment and order be supplied to the parties, if applied for, as expeditiously as possible.
(S.P. Talukdar, J.)