Calcutta High Court (Appellete Side)
Gandhi Memorial Girls' High ... vs The State Of West Bengal & Ors on 20 May, 2022
MAT 913/2021 Page 1 of 13
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
M.A.T 913 OF 2021
with
IA NO: CAN 1 of 2021
Gandhi Memorial Girls' High School & Ors.
Vs.
The State of West Bengal & Ors.
And
M.A.T 895 OF 2021
with
IA NO: CAN 1 of 2021
The State of West Bengal & Ors.
Vs.
Gandhi Memorial Girls' High School & Ors.
Appearance:
For the Appellants : Mr. Anjan Bhattacharya, Adv.
(In MAT 913 of 2021) Ms. Anita Shaw, Adv.
For the Respondent : Mr. Ujjal Ray, Adv.
For the Respondent no.1 : Mr. Anjan Bhattacharya, Adv.
(In MAT 895 of 2021) Mr. Anita Shaw, Adv.
For the State/ Appellants : Mr. Biswabrata Basu Mallick, Adv.
(In MAT 913 & 895 of 2021) Mr. Sanjib Das, Adv.
For the Amicus Curiae : Mr. Saptansu Basu, Adv.
Ms. Mrinalini Majumder, Adv.
Judgment On : 20.05.2022
Harish Tandon, J.:
MAT 913 OF 2021
A piquant situation has arisen in the instant appeal as to whether the
High Court in exercise of power under Article 226 of the Constitution of
India can usurp the power conferred upon the statutory authority in
inflicting the penalty on a perceived misconduct.
The impugned order is not challenged in its entirety at the behest of
the appellant but is restricted to a portion of the order by which the
headmaster of the school has been found wholly unfit to act, discharge his
duties in such capacities and has been robbed off all such powers in
exercise of the plenary jurisdiction assumed to have reserved in the Writ
Court.
Even after sermonising the act and the conduct of the headmistress,
the Writ Court has demoted her to the post of the assistant teacher and
prevented her to act in the capacity of the headmistress in the said school.
The aforesaid observation of the Single Bench raises a serious concern over
the jurisdiction, powers, plenary or otherwise, as well as the competence to
issue the mandamus in such form and manner.
Mr. Anjan Kumar Bhattacharya, the Learned Advocate appearing for
the appellant is very much critical on the aforesaid directions passed by the
Single Bench in pursuit of securing justice by contending that the Writ
Court cannot usurp the power of the statutory authority and impose the
punishment which is neither contemplated in the statutory Rules nor
otherwise. Mr. Bhattacharya further submits that the post of the
headmaster/headmistress in an institution has a separate source of
selection and the post of the Assistant Teacher is never regarded as a feeder
post and, therefore, demotion to the post of the Assistant Teacher in exercise
of so-called plenary jurisdiction is beyond the conceivable limits of the writ
jurisdiction or the self-restrain imposed from time to time.
The aforesaid contentions have raised a vital and important point over
the plenary powers/jurisdictions of the Writ Court in imposing the penalty
not contemplated in the Statutory Rules or adopting a procedure unknown
in the field of law. It is no doubt true that the High Court is invested with
the powers to issue the writs of various natures not only in a case where the
fundamental rights of a citizen is invaded but also against the denial or the
infringement of the other legal rights. The distinction between the powers of
the Supreme Court conferred under Article 32 of the Constitution of India is
distinct with the powers of the High Court provided under Article 226 of the
Constitution of India. In the later case, the power is void enough to engulf
not only the case relating to the infringement of the fundamental rights but
also the legal right but in former case it is only when the fundamental right
is infringed and the Supreme Court assumed the jurisdiction and interfered
with the action of the Government, semi Government and the authorities.
The Supreme Court and the High Courts are the Courts of record and
reserved power even to correct its record whenever the mistakes or the
discrepancies are there and in this regard the court exercises the plenary
jurisdiction.
The question is still begging an answer whether in exercise of plenary
jurisdiction, the court can pass an order which is otherwise conferred upon
the statutory authority and inflicted the punishment without observing
and/or following the statutory procedures and the norms provided therefor.
The edifice of the Constitution stand upon the equality, fraternity, respect
for each other and the adherence of the principles of natural justice. Nobody
shall be punished or condemned without affording an adequate opportunity
to defend or a right of hearing.
Time and again, the Supreme Court as well as the High Court has
imposed the self-restraint in exercise of the plenary jurisdiction under
Article 226 of the Constitution of India in not entertaining the writ petitions
nor the order to be passed transgressing and/or abrogating the statutory
provisions which is applied in the given facts of the case. The concept of
justice and its protection is a major role of the court but it should be
remembered that while embarking a journey of imparting justice, the
injustice should not be caused to the other. All the courts in the country
and the judicial system stands for rendering the justice and, therefore, it
invites more robust mechanism eroding the misuse and abuse in pursuit
thereof which brings more responsibilities in adjudicating the right of the
litigating parties in an adversible system. The primary duty of the High
Court under Article 226 of the Constitution of India is to correct the error
committed by the authority and in such regard it can be safely said that the
High Court does so in exercise of the plenary powers. The aforesaid
observations can be fortified with the enlightening observation of the
Supreme Court in case of M. M Thomas -vs- State of Kerala & Anr.,
reported in (2000) 1 SCC 666 runs thus:
"14." The High Court as a court of record, as envisaged in
Article 215 of the Constitution, must have inherent powers to
correct the records. A court of record envelops all such powers
whose acts and proceedings are to be enrolled in a perpetual
memorial and testimony. A court of record is undoubtedly a
superior court which is itself competent to determine the scope of
its jurisdiction. The High Court , as a court of record, has a duty to
itself to keep all its records correctly and in accordance with law.
Hence, if any apparent error is noticed by the High Court in respect
of any orders passed by it the High Court has not only power, but a
duty to correct it. The High Court's power in that regard is plenary.
In Naresh Shridhar Mirajkar v. State of Maharashtra [AIR 1967 SC
1: (1966) 3 SCR 744] a nine-Judge Bench of this Court has
recognised the aforesaid superior status of the High Court as a
court of plenary jurisdiction being a court of record."
It is beyond cavil of doubt that every court of the country owe its
existence to prevent the miscarriage of justice and the power to correct its
own order which inheres in every court as held by the Supreme Court in
case of Rajendra Singh -Vs- Lt. Governor, Andaman & Nicobar Islands &
Ors. reported in (2005) 13 SCC 289.
"15. -----Law is well settled that the power of judicial review of its
own order by the High Court inheres in every court of plenary
jurisdiction to prevent miscarriage of justice."
Even in case of Pravin Kumar -vs- Union of India & Ors., reported
in (2020) 9 SCC 471 the Apex Court succinctly laid down that the power of
judicial review does not cloath the jurisdiction upon the High Court to
assume the role of the appellate authority but such jurisdiction is
circumscribed by limiting to correct the errors of law, the procedural errors
leading to manifest injustice or the violation of principles of natural justice.
In case of State of West Bengal & Anr. -vs- West Bengal
Registration Copywriters Association & Anr., reported in (2009) 14 SCC
132, the Apex Court has emphasized even in a case where the initial relief
claimed in the writ petition becomes inappropriate because of the
subsequent events yet, in exercise of the plenary jurisdiction while moulding
the relief, in absence of any specific pleadings, it is not proper on the part of
the High Court to grant such relief on a perceived notion or the notion
acquired otherwise. The Apex Court has held that the importance of
pleading can play a very vital role while moulding the reliefs or the reliefs
claimed in the petition as the court is not cloathed with the power to make
out the case for a party and pass an order without any foundation having
laid in the pleading. It would be apposite and profitable to quote the relevant
excerpts from the said report which runs thus:
"83. There could be no doubt about the High Court's power to
mould the relief. However, even in its plenary jurisdiction, while
moulding the relief, there must be a plea to support such a relief.
The relief granted by the High Court in this case is
extraordinarily beyond the jurisdiction of the High Court and has
no nucleus in the writ petitions or in the original applications.
The basic case that was pleaded was that since the extra-
muharrirs were absorbed by the Government, the writ petitioners,
who were doing the task of extra-muharrirs, also had a wright to
be absorbed in the Government. This plea was obviously baseless,
as while extra-muharrirs were on the regular establishment of the
Government, the writ petitioners were not and, therefore, they
could not have claimed the parity. It is only after the reply of the
Government came, denying the master-servant relationship, that
the writ petitioners started singing the tune of the de facto
Government service in their favour."
In recent times, the Apex Court in case of Census Commissioner &
Ors. -vs- R. Krishnamurthi reported in (2015) 2 SCC 796 held that the
Judge cannot conceive an idea that the sky is the limit or the matter has no
barrier because of an individual's perception and, therefore, the judicial
vision should not be imprisoned or to act potentiality to cover the celestial
zone even taking the historical events of the Israel where the king Solemon
was entrusted to extend justice to its citizenry having two lions on both
sides of the arms of his throne but such lion was under the throne and,
therefore, the adjudicator or the court cannot assume unbrindled and/or
unfettered power in exercise of plenary jurisdiction.
Benjamin N. Cardozo in his publication styled as the "nature of
judicial process" have succinctly expressed that the Judges even if they are
free are not fully free. They are not to innovate at pleasure nor a night
errand roaming at will in pursuit of his own ideal of beauty or of goodness.
He is to exercise his discretion informed by tradition, methodised by
analogy, disciplined by system as subordinated to the principle pre-modelled
necessity of order in the social life.
What can be discerned from the aforesaid observations from the
aforesaid reports that the court does not embark upon the journey on a
unchartered ocean of powers in an uninformed perception, what would be
right and wrong for the society. The Judges must act on a well informed
traditions, the procedure of law and impart justice with the rider that in
proceeding on such terrain it should not cause injustice to the other.
The plenary power inheres in every court to correct the mistakes and
prevent the miscarriage of justice. The aforesaid power can also be traced
from Article 142 of the Constitution of India where Supreme court can pass
such decree or make such order necessary for doing complete justice in any
cause or matter pending before it. However, the Clause 2 of Article 142
creates a brindle and subject to the provision of any law made by the
Parliament, the plenary power conferred under Article 142 of the
Constitution of India being inherent but contemporary to those powers
which are specifically conferred on the court by various statutes though not
limited to those statutes. Such power is supplementary and never intended
to supplant the law.
In Supreme Court Bar Association -vs- Union of India & Anr.,
reported in (1998) 4 SCC 409, The Apex Court was dealing a case where
an order was passed suspending/revoking the license of an advocate to
practice while exercising the contempt jurisdiction. An argument was
advanced that the power conferred upon the Supreme Court under Article
142 is wide enough to imbibe such orders to be passed to do complete
justice but the Apex Court held that though the plenary jurisdiction is a
residual source of power which the Supreme Court may draw upon as
necessary whenever it is just and equitable to do so yet it is circumscribed
with the limitations and not to be exercised to ignore the substantive right of
the litigant in dealing with the cause and, therefore, the statutory Rules or
the Act which are operating in the field cannot be subverted in exercise of
plenary jurisdiction. The Apex Court held that:
"48. The Supreme Court in exercise of its jurisdiction under
Article 142 has the power to make such order as is necessary for
doing complete justice 'between the parties in any cause or
matter pending before it'. The very nature of the power must lead
the court to set limits for itself within which to exercise those
powers and ordinarily it cannot disregard a statutory provision
governing a subject, except perhaps to balance the equities
between the conflicting claims of the litigating parties by 'ironing
out the creases' in a cause or matter before it. Indeed this court
is not a court of restricted jurisdiction of only dispute-settling. It
is well recognised and established that this court has always been
a law-maker and its role travels beyond merely dispute-settling. It
is a 'problem solver in the nebulous areas' but the substantive
statutory provisions dealing with the subject matter of a given
case cannot be altogether ignored by this court, while making an
order under Article 142. Indeed, these constitutional powers
cannot, in any way, be controlled by any statutory provisions but
at the same time these powers are not meant to be exercised
when their exercise may come directly in conflict with what has
been expressly provided for in a statute dealing expressly with
the subject.
55. Thus, a careful reading of the judgments in Union Carbide
Corporation -vs- Union of India; the Delhi Judicial Service
Association Case and Mohd. Anis case relied upon in V. C. Mishra
case show that the court did not actually doubt the correctness of
the observations in Prem Chand Garg case. As a matter of fact, it
was observed that in the established facts of those cases, the
observations in Prem Chand Garg case had 'no relevance'. This
court did not say in any of those cases that substantive statutory
provisions dealing expressly with the subject can be ignored by
this court while exercising powers under Article 142.
57. In a given case, an advocate found guilty of committing
contempt of court may also be guilty of committing 'professional
misconduct, depending upon the gravity or nature of his
contumacious conduct, but the two jurisdictions are separate and
distinct and exercisable by different forums by following separate
and distinct procedures. The power to punish an advocate by
suspending his license or by removal of his name from the roll of
the State Bar Council for proven professional misconduct vests
exclusively in the statutory authorities created under the
Advocates Act, 1961, while the jurisdiction to punish him for
committing contempt of court vests exclusively in the courts."
In view of the law enunciated from the above report there is no
ambiguity to hold that the plenary power reserved upon the court is
somewhat brindled with and is not to travel in an unchartered ocean having
no limitations but within the circumference of the statutory provisions of
law applicable in regard to a particular subject. Such power is eminent and
apparent from the relevant provisions of Article 226 of the Constitution but
must embark its journey on the statutory terrain to prevent any misuse or
abuse of such powers.
Power to impose penalty to a headmaster of an educational institution
is governed by the Rule of 2018 containing an exhaustive and complete
procedures, provisions and the penalty and, therefore, usurpation of the
powers in the guise of a plenary jurisdiction overriding the provision of the
substantive statute was unwarranted and amounts to exaggeration of the
aforesaid powers and transgression of the well defined limits. The courts
have imposed self-restraint in exercise of plenary powers and the judicial
review in not overstepping the statutory provisions and passing an order in
disregard to the statutory Rules or the Act applicable in this regard. The
imposition of penalty in a disciplinary proceeding can only be achieved upon
adhering the procedures and the norms set forth in the aforesaid Rules and,
therefore, assuming the jurisdiction of the disciplinary authority and
perceiving the misconduct in ignorance of the aforesaid procedural
provisions cannot with stand of the anvil of the legal jurisprudence.
We, therefore, have no hesitation that the portion of the impugned
order by which the Headmistress was denuded of the powers to discharge
the duties and functions in such capacity and relegating to a lower post that
of the assistant teacher is contrary to the law enunciated in the aforesaid
reports and, therefore, cannot be sustained.
The direction passed in Paragraph 23 of the impugned order is, thus,
set aside. Since we have set aside the direction passed in Paragraph 23 of
the impugned order the imposition of cost under Paragraph 24 of the said
order cannot be allowed to stand and are also quashed and set aside.
The appeal succeeds to the extent as indicated above.
There shall be no order as to costs.
The connected applications, if there be any, are accordingly disposed
of.
MAT 895 OF 2021
This is an Appeal at the behest of the State of West Bengal challenging
the portion of the impugned order to the extent where the Single Bench has
directed the issuance of the 'No Objection Certificate' within four weeks from
the date of receiving an application by the school unless barred by law. Mr.
Basu Mallick submits that the court cannot issue a Writ of Mandamus in
this regard as it is within the prerogative of the State Government.
In course of the hearing, our attention is drawn by the State that they
have already issued the individual orders/memorandum indicating the time
limit within which the no objection shall be issued by the school authorities.
In view of the aforesaid stand having taken, this court finds that the
appeal has been rendered infructuous and, therefore, is accordingly
dismissed.
Urgent photostat certified copies of this judgment, if applied for, be
made available to the parties subject to compliance with requisite
formalities.
I agree. (Harish Tandon, J.)
(Rabindranath Samanta, J.)
