Subhas Chandra Patra vs The State Of West Bengal & Ors
2023 Latest Caselaw 5519 Cal

                         IN THE HIGH COURT AT CALCUTTA
                        CONSTITUTIONAL WRIT JURISDICTION
                                 APPELLATE SIDE

     Present:-
     The Hon'ble Justice Aniruddha Roy

                                  W.P.A. 9315 of 2019

                                Subhas Chandra Patra
                                          Vs.
                            The State of West Bengal & Ors.



     For the Petitioner:                         Mr. Biswarup Biswas, Adv.,
                                                 Mr. G. C. Samanta, Adv.

     For the Respondent Nos. 6 to 12:            Mr. Subrata Ghosh, Adv.

     For the State:                              Mr. Bhaskar Prasad Vaisya, Adv.,
                                                 Mr. Gourav Das, Adv.



     Reserved on:                                19.07.2023

     Judgment on:                                24.08.2023

     ANIRUDDHA ROY, J.:

1.   This is a hearing matter upon affidavits.

     Facts

:

2. The petitioner, at all material time had been discharging his duty as

Headmaster of one Bora Junior High School (for short, the school), District

Paschim Midnapore. Alleging diverse mismanagement in the affairs of the

school, including misappropriation of school funds, the petitioner lodged

complaint against the private respondents before the authority of the school.

Criminal complaint was also lodged by the petitioner. The private respondents

also resisted the petitioner from attending the school and discharging his

duties as Headmaster of the school.

3. Since the school authorities and/or other appropriate authorities did not take

any step as per the complaints of the petitioner, the petitioner filed the

previous writ petition being WP No. 23204 (W) of 2017. A Coordinate Bench

by its order dated September 11, 2017, Annexure P-2 at page 18 to the writ

petition, had disposed of the said writ petition with the following observation:

"In view of the aforesaid facts, I observe that the criminal cases instituted at the behest of the parties shall be proceeded with utmost expedition and be concluded at an early date. Parties are at liberty to appear before the criminal court and ventilate their grievances therein in accordance with law. In view of the fact that the petitioner's services has been discontinued by the Managing Committee of the school, no order is passed with regard to his prayer for police protection to ensure him to enter the school premises. It is, however, open to the petitioner to approach the appropriate authority for necessary redress in that regard in accordance with law.

With the aforesaid observations, the writ petition is disposed of.

Since no affidavit-in-opposition has been called for, the allegations made in the writ application are deemed to have been not admitted by the respondents".

4. Pursuant to the observation made by the coordinate bench as stated above, the

petitioner submitted its application before the Jurisdictional District Inspector

of Schools (SE) (for short, the DI) with a prayer for resumption of duty of the

petitioner at the school, as the petitioner was resisted to discharge his duties

as Headmaster of the school. The DI by its order dated January 04, 2018,

Annexure P-3 at page 20 to the writ petition, directed the Secretary of the

Managing Committee of the School to take necessary action or to take redress.

5. The petitioner contended that in terms of the said direction of the DI, the

Managing Committee allowed the petitioner to resume his duty and to join the

school as Headmaster of the school by making necessary endorsement on

January 05, 2018, Annexure P-4 at page 21 to the writ petition, on a

communication of even date made and signed by the petitioner describing

himself as Headmaster of the School on the letter head of the school addressed

to the Secretary of the School. Since the private respondents continued to act

causing disturbance and resistance to run the affair of the school smoothly,

the petitioner again made a complaint dated July 12, 2018 before the DI and

the DI by its communication dated July 18, 2018 Annexure P-6 at page 23

to the writ petition, directed the Secretary of the School to take steps in the

matter.

6. The petitioner then by his communication dated July 20, 2018 written on the

letter head of the school but signed by the petitioner, made a prayer before the

Secretary of the School for allowing the petitioner to join the school, Annexure

P-7 at page 24 to the writ petition. The petitioner, made a further complaint

before the Police Authority since the office room of the Headmaster where from

the petitioner used to discharge his duties was under lock and key Annexure

P-8 at page 25 to the writ petition. The petitioner further lodged a complaint

for the same reason dated January 23, 2019 before the District Administrative

Authority Annexure P-10 at page 28 to the writ petition. Despite repeated

complaints being made by the petitioner, the school authority did not pay any

heed thereto and the petitioner was not allowed to join his employment.

7. In view of the above, the petitioner filed the instant writ petition with the

following prayers:

"a) Writ in the nature of mandamus commanding the respondent particularly the respondent No. 8 to 12 to allow the petitioner to resume and function his duties as headmaster of the said school forthwith.

b) Writ in the nature of mandamus commanding the respondent No.8 to 12 to comply the order of the District Inspector of School (SE) dated 04.01.2018 and 18.07.2018 regarding smooth functioning of the school and to function the duties as Head Master of the said school forthwith.

c) Writ in the nature of mandamus commanding the respondent No.4 being the Officer-in-Charge of Kharagpur Local Police Station to render assistance to the petitioner to function as Headmaster and to resume his duties and to function the administration of the school without any hindrance from the any corner.

d) Writ in the nature of certiorari direction the respondents to produce all records relating to the present can before this Hon'ble Court and upon perusal of such record conscionable justice may be rendered to the petitioner by issuing appropriate writ and/or writs and/or order any orders.

e) Interim order restraining the respondent No.8 to 12 from disturbing the functionary, as well as administrative duties the petitioner being the headmaster office school.

f) Directing the respondent No.4 render police help to the petitioner to resume his duties as headmaster of the said school as well as functioning of the school administrative smoothly.

g) Such other and or further order as to this further court deem fit and proper".

8. Pursuant to the direction made by the coordinate bench affidavit-in-opposition

was filed on behalf of the respondent Nos.6 to 12, affirmed on January 17,

2020. Affidavit-in-reply thereto, was filed by the petitioner, affirmed on March

03, 2020.

9. The writ petition was thereafter taken up for consideration by this Court. While

purusing the writ petition, learned counsel Mr. Biswarup Biswas appearing for

the petitioner had relied heavily upon the said document dated January 05,

2018 on which the endorsement made by one Uday Das as the alleged

Secretary of the Managing Committee of the School, Annexure P-4 at page 21

to the writ petition. Learned counsel submitted on the strength of the said

document that, the petitioner should have been allowed to join the school as

Headmaster and by not allowing the petitioner to do so the relevant school

authority had acted illegally and wrongfully and also arbitrarily. Such an

arbitrary and wrongful act on the part of the school authority had infringed the

valuable right of employment of the petitioner. Per contra, Mr. Subrata Ghosh

appearing for the respondent Nos. 6 to 12, the managing committee of the

relevant school placed reliance upon the affidavit-in-opposition filed by his

clients. Specifically referring to paragraph 7 and 8 from the said affidavit-in-

opposition, the learned counsel submitted that, the said document dated

January 05, 2018 AnnexureP-4 at page 21 to the writ petition was a

manufactured and forged document. He submitted that, the signature of Uday

Das as would appear from endorsement allegedly made by the school authority

was not the signature of Uday Das and the same was forged. He submitted

that the petitioner had knowingly relied upon this forged document before this

Hon'ble Court and made the same as a part of the instant writ petition which

was affirmed by the petitioner and, therefore, had practiced fraud upon the

Court as also upon the school authority on oath.

10. Considering the submissions recorded above made on behalf of the parties, this

Court passed its order dated June 07, 2023 and referred the matter before the

Criminal Investigation Department (CID), State of West Bengal to make an

enquiry on the issue and directed to file a report thereupon before this Court

for the reasons recorded in the said order June 07, 2023.

11. The matter then, was taken up for consideration by this Court on July 12,

2023 when the Learned Additional Government Pleader for the State filed the

report prepared by CID in a sealed envelope. The envelope was opened and the

report was perused by this Court. The court then directed to circulate the said

report amongst the parties. The copies of the report accordingly were made over

to the learned advocates for the appearing parties including the learned

advocate on record for the petitioner to enable the petitioner to consider the

report and make his submission on the following day.

12. The writ petition was then taken up next on July 19, 2023 when the respective

counsel for the appearing parties including the petitioner made their detailed

submissions on report and also on the writ petition.

Submissions:

13. Mr. Biswarup Biswas, learned counsel for the petitioner submitted that the

petitioner had considered the CID report carefully in its entirety. He submitted

that, the observations made by the CID on the basis whereof it had given its

finding in the report were all questions involving disputed facts. He submitted

that, without conducting a proper trial, the fact finding enquiry, in the facts

and circumstance of the case was not possible and would remain incomplete. It

was submitted that, on the basis of such incomplete fact finding enquiry,

without conducting a proper trial on the issue, this Court exercising its power

under Article 226 of the Constitution of India cannot come to a definite finding

that the subject document was forged or a manufactured one.

14. Learned counsel submitted that to take the plea of fraud a clear case of fraud

has to be pleaded and demonstrated. If the clear case of fraud is not made out

the Court can proceed on fraud. In support, he relied the judgment of the

Hon'ble Supreme Court In the matter of: State of Maharastra vs. Dr.

Budhikota Subharao, reported at (1993) 3 SCC 339.

15. Learned counsel for the petitioner submitted that, the fraud had been alleged

by the school authority and not by Uday Das, whose signature was allegedly to

be forged. Keeping in view the direct interpretation of penal statute in which

natural inferences are preferred, the charge of forgery cannot be imposed on a

person who is not the maker of the same. Making of a document is different

than causing it to be made. In the instant case, even if the document is alleged

to be forged, the maker of document was Uday and not the petitioner. Hence

the petitioner cannot be charged with the guilt of fraud. In support, he relied

upon a decision the Hon'ble Supreme Court In the matter of: Sheila

Sebastian vs. R. Jawaharaj & Anr., reported at (2018) 7 SCC 581.

16. Learned counsel then submitted that fraud is proved when it is shown that a

false representation has been made knowingly or without belief in its truth or

recklessly or carelessly, whether it be true or false. Fraud is conducted either

by letters or words. In the present case, the learned counsel for the petitioner

submitted that, the specific contention of the petitioner was that the subject

document was issued under the seal and signature of the Secretary of the

Managing Committee of the School at the relevant point of time. The petitioner

cannot be termed to be a party to such alleged fraud. In support, he relied

upon the decision of the Hon'ble Supreme Court In the matter of: Bhaurao

Dagdu Paralkar vs. State of Maharastra & Ors., reported at (2005) 7 SCC

605.

17. Mr. Biswas submitted that on the basis of the said document dated January

05, 2018 the petitioner was allowed to join his service by the Managing

Committee of the School, the petitioner should be allowed to resume his

employment.

18. Referring to Annexure 4 to the CID report, Mr. Biswas learned counsel for the

petitioner submitted that, the school was recognized on January 13, 2010.

Referring to Annexure 7 to the CID report which is a resolution of the meeting

of the Managing Committee dated August 05, 2015, he submitted that, the

constitution of the Managing Committee of the School was contrary to the

provisions of the relevant Management Rules and as such not in accordance

with law and the Constitution of Management Committee being void, the school

authority cannot take any advantage of the alleged forgery in respect of the

said document dated January 05, 2018. Referring to Annexure 8 to the said

CID report and the further resolutions he submitted that, the respondent no.8

was not authorized to affirm the affidavit-in-opposition on behalf of the relevant

school authority as he was not a member of the Managing Committee at the

relevant point of time and, therefore, no reliance can be placed on the affidavit-

in-opposition.

19. Mr. Subrata Ghosh learned counsel for the respondent nos. 6 to 12 had

referred to the averments made in paragraph 7 and 8 from the affidavit-in-

opposition affirmed on January 17, 2020 on behalf of respondent no.6 to 12

and submitted that specific allegation of fraud was pleaded and it was

specifically contended by the said respondents that the signature of Uday,

appearing on the said subject document dated January 05, 2018 Annexure P-

4 at page 21 to the writ petition was forged and the document was a

manufactured one at the instance of the writ petitioner. He submitted that,

fraud vitiates everything. Hence the petitioner is not entitled to claim any relief

in this equitable proceeding.

20. Mr. Ghosh further submitted that since the subject document dated January

05, 2018 is a forged document and case of the petitioner is on the basis of the

said document, he prayed for dismissal of the writ petition summarily.

Decision:

21. After considering the rival contentions of the parties and considering the

materials on record, this Court is of the view that the adjudication of the writ

petition depends to a large extent on the correctness, authenticity and veracity

of the said document, dated January 05, 2018 Annexure P-4 at page 21 to

the writ petition. If the said document is taken to be true and correct which is

heavily relied upon on behalf of the petitioner, then the petitioner would have

to be allowed to join the school but if the document is otherwise forged and

manufactured, as contended on behalf of school authority, then the petitioner

would not be allowed to join the school and in that event the petitioner would

have to be held to have adopted a procedure of fraud before this Court.

22. In this situation this Court had obtained a report from CID. On a perusal of the

said report the following had appeared to this Court:

.1) CID had examined the Petitioner, Respondents, School Authorities,

the concerned District Inspector of Schools and other persons in detail.

.2) On relevant documents were produced by the petitioner, the

Teacher-in-Charge of the School and the DI were produced before CID

and were scrutinized thoroughly.

.3) Specimen signature was collected from Uday Das in presence of the

petitioner, one respondent and other witnesses.

.4) The specimen signature of Uday Das was examined by the

handwriting experts.

.5) Despite request the petitioner did not produce the original document

dated January 05, 2018.

.6) The statements of the parties to this writ petition were recorded.

.7) Sri. Uday Das who was the Secretary of the previous Managing

Committee of the School on examination stated that he attended the

meeting held on August 05, 2015 in which a new Managing Committee

was formed and he was removed from the Post of Secretary of the said

Managing Committee. He qualified Class-IV and does not know to write

in English. He can only write his name in English. He usually signed in

Bengali. He resigned from the Post of Secretary in the meeting held on

August 05, 2015. Since then he did not engage himself in any affair of

the School. He did not sign on any joining prayer of the petitioner dated

January 05, 2018. The respondent no.8 submitted a letter dated

August 05, 2015 signed by Uday in Bengali. In the said letter Uday

prayed for relieving him from the Post of Secretary. The petitioner was

requested by CID to produce few original documents which, inter alia,

included the said document dated January 05, 2018 but the petitioner

failed to produce original documents.

.8) Annexure 18 to the said CID report was a letter signed by the

petitioner dated June 21, 2023, wherefrom it appeared that the

petitioner informed the CID that the original document dated January

05, 2018 could not be produced by him and whatever document he

had claimed to be original dated January 05, 2018 was submitted

before CID.

.9) The specific finding of the CID was that the petitioner failed to

produce the original letter dated January 05, 2018 but produced other

two original letters one dated January 05, 2018 (Annexure 19 and 20

to the CID report) and July 20, 2018 (Annexure 21 to the CID report)

which according to the CID were different from the letters submitted in

the writ petition.

.10) The sample handwriting of Uday was taken in presence of the

petitioner, respondent no.9 and other witnesses present.

.11) The documents mentioned in paragraph 5,16 of the CID report

which included the copy of the letter dated January 05, 2018 Annexure

P-4 at page 21 to the writ petition (Marked Q1 for Expert) were

produced before the Question Document Examination Bureau (QDEB),

CID, West Bengal for comparison of the Handwriting of Uday Annexure

25 to the CID report. The finding of the said examination bureau was

that in absence of the original letter dated January 05, 2018 the

opinion could not be given but the Bengali signature of Uday present in

the resignation letter dated August 05, 2015 was executed by Uday

(Referred to Para 5.16 from the CID report).

.12) Considering everything as mentioned in the said CID report the

Investigative Agency came to a finding that the signature present in

the document dated January 05, 2018, Annexure P-4 at page 21 to the

writ petition was not executed by Uday.

23. On a careful scrutiny of the said report filed by CID, it appeared to this Court,

despite requests the petitioner failed to produce the original document dated

January 05, 2018, Annexure P-4 at page 21 to the writ petition. The expert

upon examination of the copy of the said document and upon examination of

Uday Das came to a finding that the document was not signed by Uday Das.

Relying upon the said document the petitioner has built up its case in the writ

petition. The original document should be and supposed to be in the custody

of the petitioner and in absence of the original being produced by the petitioner

the Adverse Presumption goes against the petitioner. Once the expert has

opined that the alleged signature of Uday Das appearing on the document was

not the signature of Uday Das, though the same might give rise to a triable

issue, but would definitely create a doubt in the mind of the Court that fraud

might have been perpetrated and practiced upon this Court by using the said

document in the writ petition which was verified on oath by the petitioner

knowing that the document was forged. Once the question of forgery arose in

the mind of this Court, as in the facts of this case, this Court, as of the view

that, it is a fit case where a properly constituted criminal trial is required to be

instituted in accordance with law.

24. The contention of the petitioner that by alleging fraud the respondents had

raised a triable issue before this Writ Court, the same at best can be sent for

conducting a trial on the disputed questions of facts and till the time a

conclusive decision comes on trial the writ petitioner is maintainable. This

cannot be the law, in the firm opinion of this Court. This Court while exercising

its jurisdiction under Article 226 of the Constitution of India, it exercises its

equitable jurisdiction. The moment a cloud is created in the mind of the Writ

Court as to the authenticity and existence of a document, which is the sole

basis of the writ petition and that to with the allegation of fraud against the

petitioner practiced on Court no equity shall be exercised in favour of the

petitioner. It is settled that he who seeks equity must apply before the Court of

equity with clean hands. The Court of equity cannot and should not indulge

the applicant who, prima facie, applies with an unclean hands before it.

25. An expert opinion is always open for scrutiny strictly in accordance with law

and cannot be used as a conclusive evidence until the opinion is proved to be a

testimony founded on a conclusive proof. It is equally settled that when a

dispute as regards the authenticity of a document as to the signature or

handwriting appearing thereon is questioned, the Court not being an expert on

the subject is free to take assistance from the expert and the Court may form

its prima facie view on the basis of such experts opinion, as in the facts of this

case.

26. From the averments made in the affidavit-in-opposition filed on behalf of

respondent nos. 6 to 12, it appears that a clear case of fraud was made out by

the said respondents and it was specifically contended that the signature of

Uday appearing on the document dated January 05, 2018 was forged. In the

affidavit-in-reply the petitioner did not deny such case of the respondents as it

is required to be denied in law specifically In the matter of: Sheila Sebastian

(supra), was a judgment render in a criminal appeal in which the High Court

had held that the conviction of the accused was not sustainable. So an

appropriate trial was held in which conviction was directed. Such is not the

case in the facts of the instant case and the stage of conviction has not arrived

in this case. In the matter of: Dr. Budhikota Subharao (supra), a case of

fraud was alleged against the persons who sought for freedom fighters' pension

but were not even born at the time of freedom fighting. The facts are not alike

in the instant case. In the instant case, the petitioner seeks to take advantage

of a document being the sole basis of his writ petition. The authenticity of such

document is under challenge to be a result of fraud allegedly practiced by the

petitioner. Inasmuch as, in none of these matters as were referred to on behalf

of the petitioner the Court sought for any expert's opinion. In the facts of this

case, the Court has obtained an expert's opinion and on the basis of such

expert's opinion this Court in exercise of its writ jurisdiction being an equitable

jurisdiction proceeds to deal with the writ petition. Accordingly, the ratio laid

down in all the above cases relied upon on behalf of the petitioner would render

no assistance to the petitioner in the facts of the instant case.

27. In the light of the above discussions, this Court is of the firm view that, this

Court will not and should not exercise its equitable jurisdiction when a prima

facie view on fraud has been opined by the expert. It is a fit case, since

allegation of fraud is there against the petitioner who according to the

respondents knowingly manufactured a document by forging the signature of

Uday Das and knowing that the document being forged has used it before this

Court on oath and thereby practiced fraud upon this Court and the expert's

opinion prima facie supports such contention, a properly constituted criminal

trial is required to be initiated.

28. For the foregoing discussions and reasons the CID through its appropriate

authority is directed to lodge the necessary FIR positively within a period of

four weeks from the date of communication of this order by the Learned

Additional Government Pleader through whom the CID has filed its report. The

CID then shall go on investigation on the issue and the State shall take all

further steps in the matter strictly in accordance with law to come to a

reasonable conclusion on the issue after a proper criminal trial being held

strictly in accordance with law and the criminal case shall arrive its logical

conclusion as expeditiously as possible before the Jurisdictional Criminal

Court not later than one year from the date of initiation of the said case. The

Jurisdictional Criminal Court shall proceed with the trial without being

influenced by any observation made herein.

29. After completion of the criminal trial, if the result goes against the petitioner

then the jurisdictional criminal court who shall conclude the trial shall refer

the matter before the jurisdictional magistrate to take cognizance against the

petitioner for perjury and such proceeding shall come to a logical conclusion

by the jurisdictional magistrate as expeditiously as possible and positively

within a period of one year from the date of reference before it.

30. In view of the foregoing discussions, reasons and with the above observations,

this writ petition WPA 9315 of 2019 stands dismissed, without any order as

to costs.

31. In the event, the petitioner is acquitted in the criminal trial, he shall be at

liberty to avail of his remedy on the self same issue in accordance with law.

(Aniruddha Roy, J.)