06. 09 . 2021
BP CPAN 1304 of 2019
Sl. 8 In
Court No. 17. WPA 2571 of 2018
(Via Video Conference)
Amit Bauri
Vs.
Dr. Ratna Chakraborty Bagchi
Mr. Sudipta Dasgupta
Mr. Bikram Banerjee
Mr. A. Biswas
Mr. Arka Nandi
Mr. Saikat Sutradhar
... for the Petitioner.
Mr. L.K. Gupta, Senior Advocate
Mr. Subir Sanyal
Mr. Ratul Biswas
..for the alleged contemnor.
The allegation of the applicant in this matter is that
there is deliberate and willful violation of the solemn order
dated 7th March, 2019 passed by His Lordship the Hon'ble
Justice Samapti Chatterjee in W.P. 2571 (W) of 2018. By the
said order dated 7th March, 2019, the Hon'ble Judge passed
the following order which is the operative part of the
judgment and order.
"20. Considering the above discussion and after
perusing the expert reports I direct the Secretary, West
Bengal Board of Primary Education to award marks to
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the petitioner/petitioners who attempted the wrong
question/options in the key answers of JGB question
booklet series. After awarding marks if it is found that
the petitioner/petitioners is/are otherwise eligible to
give appointment to the post of Assistant
Teacher/Teachers then the Secretary is further
directed to take steps to give appointment to the
petitioner/petitioners in accordance with law."
The case of the petitioner is that despite this order,
the Secretary of the West Bengal Board of Primary
Education did not award marks to the petitioner and he
could not get success in Teachers Eligible Test - 2014 (TET).
Learned advocate for the alleged contemnor submits
that according to the alleged contemnor's understanding of
the said order of the Hon'ble Court (as has been quoted
above), the Court had not directed to award marks to the
petitioner who attempted wrong options in the OMR Sheets.
When the court says that attempting the "wrong
question/options" the court never meant that a candidate
who opted for a wrong option would be given marks.
This observation of court has a back ground.
The experts' report was that in the question booklet in
TET one question was wrong, one question was confusing
and there were wrong options in respect of the other four
questions.
The said learned Advocate for the alleged contemnor
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has also submitted that on the basis of such
understanding, out of 175 writ applicants is another writ
application being W.P. 23006 (W) of 2017, 130 candidates
were given marks sometimes 2 (two) marks (for two
questions one of which was wrong and one of which was
confusing - which marks were given to all the candidates),
sometimes 3 depending upon the option exercised by them
and sometimes 4 or 5 even 6 marks depending upon the
options selected by them which were marked in their O.M.R.
sheets.
In this respect, learned Advocate for the alleged
contemnor has relied upon a judgment delivered by the
Supreme Court in J.S. Parihar vs. Ganpat Duggar and
Others (reported in (1996) 6 SCC 291). Paragraph 6 of the
said judgment has been heavily relied upon by the learned
counsel and on the basis of this it has been submitted that
as it has been observed by the Supreme Court in the said
judgment "It is seen that once there is an order passed by
the Government on the basis of the directions issued by the
court, there arises a fresh cause of action to seek redressal
in an appropriate forum. The preparation of the seniority
list may be wrong or may be right or may or may not be in
conformity with the directions. But that would be a fresh
cause of action for the aggrieved party to avail of the
opportunity of judicial review." Therefore, fresh cause of
action has arisen in this controversy and contempt
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application is not maintainable.
This principle has been laid down by the Supreme
Court in a completely different factual matrix which would
appear from paragraph 3 of the said judgment wherefrom it
is found that there a learned Single Judge in a contempt
application on consideration of the merits held that the
respondents had not willfully disobeyed the orders of the
court and after holding that gave certain directions. Against this order an appeal was filed and the appeal court passed an order directing the Government to take some steps. At this stage the matter came before the Supreme Court. The question in this matter which fell for consideration before the Hon'ble Supreme Court was, as has been recorded in paragraph 5 of the said reported judgment, "whether an appeal against the directions issued by the learned Single Judge is maintainable under Section 19 of the Act?
In the said judgment of J.S.Parihar, there was a direction by two Division Benches, then by a learned Single Judge which held that there was no willful disobedience order of the court and gave certain direction which was challenged before a Division Bench again and the order of the Division Bench was challenged by the state to whom such directions were issued by the Divisional Bench. The question in reply to which the Supreme Court made the observation as to 'fresh cause of action', much emphasis whereon has been given by the counsel of the alleged 5 contemnor here was "whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the direction issued by the court".
(Emphasis mine) Here in this case the factual matrix is completely different. Here the question is simple. An order was passed which is clear and unambiguous. The alleged contemnor gave a different meaning to the said order (the effective portion) and has said that she has acted in terms of her own understanding and according to the said understanding marks have been awarded to some candidates i.e. some petitioners of W.P. No 23006 (w) of 2017.
This act of awarding marks to some other persons on the basis of the understanding of the alleged contemnor has been shown as a fresh cause of action which is not accepted. The alleged contemnor never approached the court for clarification or modification of the order. Any wishful thinking of a person and his act accordingly in the name of complying with the court's order does not give rise to any fresh cause of action. There is no situation for which such question in this matter can be framed as was framed by the Hon'ble Supreme Court in Parihar's case. Therefore, the observation of the Hon'ble Supreme Court in Parihar's case has no applicability in the present mater. The alleged 6 contemnor cannot take shelter under a principle which has no applicability in the matter.
In Parihar's case the Supreme Court does not say that the persons or authorities to whom directions are given by a court will put their own meaning in the direction of the court and they do not require getting the direction clarified or modified and they can act according to their own meaning given to the order. Judgment of Supreme Court in Parihar's case must not be taken to an absurd level.
I am afraid, if this observation made in J.S. Parihar's case is allowed to be used by courts when taken to an absurd level without taking note of the fully different factual matrix by giving liberty to persons and authorities that they are free to give their own interpretation in respect of any order passed or direction given by a writ court then the whole purpose of the Contempt of courts Act 1971 and Article 215 of the Constitution of India will be nugatory and frustrated and there will be no sanctity of any order passed by a writ court and a total chaotic situation will be created in respect of compliance of a writ court's order. In such a situation in all likelihood every person or authority to whom a direction is given or against whom an order has been passed will say while facing contempt of court that he/they understood the order/direction in their own way and acted accordingly and thus they would avoid compliance of the court's order.
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I hold that despite the direction given by the writ court in W.P. No. 2571 (W) of 2018 which is clear and unambiguous, the alleged contemnor has not complied with the order willfully and deliberately. She was required to give six marks to all petitioners who attempted the wrong question/options in the key answers. It is only a ruse to say that she understood the order differently.
The President of the West Bengal Board of Primary Education is at the helm of the affairs. It cannot be said by the alleged contemnor before me that the President does not know about the order passed by this court in the above writ application. The President also cannot say so.
In my view, the President is conducting himself in a manner so as to obstruct the course of justice and has been trying to frustrate the effect of the order passed by this court. This is clearly not permissible under the law. The President is willfully and deliberately assisting the person the alleged contemnor (i.e. the Secretary of the Board) to whom the direction was given by the court in the above order, from complying with it. Otherwise such willful and deliberate violation of court's order cannot happen.
Following the principle approved by the Supreme Court in Sita Ram vs. Balbir (reported in (2017) 2 SCC
456) as was formulated in Seaward's case [(1897). CH 545 (CA), Seaward -vs- Paterson], I am adding the President of West Bengal Board of Primary Education a 8 party in the contempt application as an alleged contemnor on the basis of the facts and circumstances laid bare before me. The Court has the power in a contempt application to add a party who is in a real position to comply with the court's order.
I direct the department to add the President of the West Bengal Board of Primary Education by his name as an alleged contemnor within two days from tomorrow. The name of the said alleged contemnor as has been supplied to this court by the direction of this court is Dr. Manik Bhattacharya, his office address is Acharya Prafulla Chandra Bhawan, DK 7/1, Sector II, Salt Lake City, Kolkata 700091.
This order has been passed in the presence of the learned advocates of the alleged contemnors and they are directed to communicate the gist of the order immediately to the alleged contemnors.
The petitioner is directed to send a copy of this order to both of the alleged contemnors and a copy of the contempt application to the added alleged contemnor.
This matter will appear before me on 4 th October, 2021.
(Abhijit Gangopadhyay, J. )