Payel Bag vs Dr. Ratna Chakraborty Bagchi
2021 Latest Caselaw 4501 Cal

06. 09 . 2021
W

    BP                            WPCRC 156 of 2019
   Sl. 1                               In
Court No. 17.                     WPA 12399 of 2018

                                 (Via Video Conference)

                                      Payel Bag
                                          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 26th November, 2018 passed by His Lordship

                the Hon‟ble Justice Samapti Chatterjee in W.P. 12399 (W)

                of 2018. By the said order dated 26th November, 2018,

                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

                the petitioner/petitioners who attempted the wrong
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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 she

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
                     3




other four questions.

      The   said   learned   Advocate    for    the    alleged

contemnor 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
                       4




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   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 Hob‟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. 12399 (W) of 2019 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 4th October,

2021.

(Abhijit Gangopadhyay, J. )

Rul