Amit Bauri vs Dr. Ratna Chakraborty Bagchi
2021 Latest Caselaw 4499 Cal

 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
                          2




     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
                       3




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
                       4




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

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

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.

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

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. )