Dr. Sunanda Goenka (Nee ... vs Md. Danish Farooqui & Ors
2023 Latest Caselaw 6973 Cal

     1
11.10.2023
 Ct. No. 11
    rrc
                              MAT 2009 of 2023
                    [Dr. Sunanda Goenka (nee Bhattacharyya)
                                      Vs.
                           Md. Danish Farooqui & Ors.]

                 Mr. Subir Sanyal
                 Mr. Sourav Kumar Mukherjee
                 Ms. Falguni Jana
                 Ms. Sahana Pal
                                     ..... For the appellant

                 Mr. Sirsanya Bandopadhyay
                 Mr. Arka Kumar Nag
                 Mr. A. Chatterjee
                                      ..... For the State

                 Mr. Arka Kumar Nag
                                       ..... Special Officer

                 Mr. Biswaroop Bhattacharyya
                 Mr. Vivekananda Bose
                 Mr. Sankha Biswas
                 Mr. Tapajit Das
                 Mr. Ankan Das
                 Mr. Abrajit Roy Chowdhury
                                      ...... For the writ petitioner/
                                           respondent

Mr. Jayanta Mitra, Ld. Sr. Adv.

Mr. Srijib Chakraborty Mr. Subhrangsu Panda Ms. Ina Bhattacharyya Mr. Sumitava Chakraborty ...... For the Commission

Mr. Ashoke Kumar Banerjee, Ld. Sr. Adv.

Mr. Probal Kumar Mukherjee, Ld. Sr. Adv. Mr. Soumya Majumder Mr. Indranil Nandi Mr. Souvik Nandy Mr. Sayak Koner ..... For the respondent no. 26

Ms. Debjani Ghosal ...... For the UGC

The present appeal has been preferred challenging an

order dated 5th October, 2023 passed in a writ petition

being WPA 24026 of 2023.

Records reveal that the writ petition was preferred by

a student pursuing the LL.B. Course at Jogesh Chandra

Chowdhury Law College (in short, the said college) inter

alia, praying for revocation of recommendation towards

appointment issued in favour of Dr. Sunanda Goenka,

the Principal of the said college. The writ petition was

affirmed on 4th October, 2023 and by an order dated 5th

October, 2023, the learned single Judge removed the

appellant from the post of Principal of the said college as

she was not having the requisite qualification for the post

of teacher in a college recognized by University Grants

Commission (in short, UGC). The appellant was also

restrained from entering into the college premises on and

from 6th October, 2023 until further orders. By the said

order, Mr. Arka Kumar Nag, learned advocate was

appointed as a Special Officer for a period of three

months and was directed to visit the college on 5th

October, 2013 itself and to put lock and key on the door

of the Chamber of the Principal's office and to send an

authorized person to affix the copy of the order on the

notice board and also on the door of the Principal's

chamber.

In the said order, the Court was also observed that

Mr. Sourav Kumar Mukherjee, learned advocate

appearing for the appellant herein and others had

refused to assist the Court and referred the matter to be

placed before the Bar Council of West Bengal for taking

steps for professional misconduct. Aggrieved by the said

direction, an appeal was preferred by Mr. Sourav Kumar

Mukherjee and the same was disposed of by a coordinate

Bench of this Court on 6th October, 2023 setting aside

the reference to the Bar Council of West Bengal for

initiation of action against Mr. Mukherjee for professional

misconduct upon observing inter alia that 'the law does

not permit any Court to decide a matter on the basis of a

telephonic conversation between the Court and any of the

respondents' and that 'we do not find any tearing hurry

to proceed with the matter and the learned Advocate ought

to have been given a day's accommodation to obtain

necessary instruction'.

Mr. Sanyal, learned advocate appearing for the

appellant submits that on 5th October, 2023, the learned

Single Judge adopted an unusual procedure. From the

Court room the appellant received a phone call from an

unknown mobile number. The caller identified himself as

Vivekananda Bose, a learned advocate and that he was

calling the appellant under the instruction of the learned

Single Judge. Over the telephone the learned Single

Judge enquired as to whether she had qualified in

National Eligibility Test (in short, NET) and State Level

Eligibility Test (in short, SLET). In reply, the appellant

submitted that she did not. She also submitted that she

was actually appointed in 1998 when the college was a

private college and she was in a pay package scheme and

therefore, she continued with her appointment in the

post of Principal. Only on the basis of such conversation,

the learned Judge arrived at a finding that the appellant

does not have the requisite qualification for the post of

teacher of a college recognized by UGC and immediately

passed an order removing the appellant from the post of

the Principal.

He further submits that the appellant was served a

copy of the writ petition on 4th October, 2023 at about

19.53 hours and was intimated that the matter would be

heard on 5th October, 2023 at 2.00 p.m. Within such

short span of time the appellant could not meet with the

learned advocate and hand over all relevant documents.

From such sequence it is explicit that the appellant did

not get a reasonable opportunity to appear and

contradict the allegations and as such, there had been a

blatant violation of the principles of natural justice and

on such ground, the directions towards removal and

appointment of a Special Officer, being a consequential

one, are required to be set aside.

He further argues that no legal right of the writ

petitioner was infringed and as such, the writ petition

itself was not maintainable. In support of his arguments

reliance has been placed upon the judgments delivered in

the cases of Chairman-cum-Managing Director, Coal India

Limited and others Vs. Ananta Saha and others, reported

in 2011 (5) SCC 142 and Badrinath Vs. Government of

Tamil Nadu and others, reported in 2000 (8) SCC 395.

Mr. Sanyal further argues that the writ petition was

affirmed on 4th October, 2023. The same was mentioned

before the learned Single Judge on 4th October, 2023 and

the matter was taken up on 5th October, 2023 at 2.00 pm

though there was no pressing urgency in the matter. By

the order, the Principal was removed and the Special

Officer was appointed and was directed to visit the

college on the selfsame date and the matter was

surprisingly treated to be 'heard in-part'.

Per contra, Mr. Bhattacharyya, learned advocate

appearing for the writ petitioner/respondent no. 1

submits that the appellant did not fulfil the requisite

qualification towards her initial appointment as a

lecturer in the said college. Subsequent enhancement of

qualification does not cure the inherent lack of requisite

qualification of the appellant. In spite of being aware

about the orders passed in two appeals preferred by two

teaching staff of the said college and about constitution

of an enquiry committee, the appellant deliberately did

not face the enquiry. As Principal, she was the Secretary

of the Governing Body. She had knowledge that on the

basis of the enquiry committee's resolution, necessary

direction had been repeatedly issued by the Director of

Public Instructions (in short, DPI) for initiation of

appropriate proceedings against her. In spite of such

direction, she had illegally continued as the Principal of

the said college.

Mr. Bhattacharyya further argues that the writ

petitioner has a right to be taught by eligible teachers

and that fraud had been practiced by the appellant. The

inaction on the part of the Governing Body of the said

college is nothing but purely politically motivated.

He also points out to this Court that the appellant did

not even appear before the learned Single Judge when

the matter was again taken up for hearing on 9th

October, 2023 in spite of due notice.

Mr. Mitra, learned senior advocate appearing for the

Commission submits that the appellant joined on 1st

August, 1998 in the said college when it was a private

one. On 8th February, 2000, University of Calcutta

granted permanent affiliation and in the month of

December, 2000 the college was recognized by UGC and

pursuant to a Government order dated 11th January,

2001, the appellant was regularized. Placing reliance

upon paragraph 19 of the report filed by the Commission

before the learned Single Judge, subsequently, Mr. Mitra

submits that neither the NET nor the SLET was the

criteria for being selected in the post of Principal.

Mr. Bandyopadhyay, learned advocate appearing for

the State has placed before this Court an affidavit filed as

per the order of the learned Single Judge dated 6th

October, 2023. Drawing our attention to the annexures

to the said affidavit, he submits that the Special

Secretary to the Government of West Bengal, Higher

Education Department referring to orders passed in the

appeals preferred by one Dr. Bulbul Sirkar Ray and by

one Dr. Sampa Bhanja and a report of the enquiry

committee, directed the DPI to take appropriate action

including disciplinary proceedings against the appellant.

The DPI, in turn, issued a memo dated 15th June, 2020

to the Administrator of the said college to take

appropriate steps. Reminders were issued by DPI to the

President of the Government Body of the said college on

9th December, 2022, 27th December, 2022 and 11th

January, 2023, but in vain. The Governing Body, of

which the appellant was the Secretary, also did not take

appropriate steps as directed by the DPI. In spite of

notice the appellant also did not appear before the

Enquiry Committee constituted by the Chief Secretary to

the Government of West Bengal.

Mr. Nag, learned advocate submits that he has

complied with the directions passed by the learned Judge

on 5th October, 2023, 6th October, 2023 and 9th October,

2023. In terms of the said orders he is now acting as the

Drawing and Disbursement Officer (in short, DDO) of the

said college. One Maazul Haque has also been handed

over the charge of Principal.

Mr. Nag further submits that acting as the DDO he

had signed the necessary documents including the

requisition for salary of the month of October, 2023 and

the same has been approved by the competent authority

for disbursement of the salaries of the teaching and non-

teaching staff of the said college excluding the salaries of

the appellant and the respondent no. 26.

Mr. Banerjee, learned senior advocate appearing for

the respondent no. 26 submits that no notice was served

upon the said respondent prior to issuance of the order

dated 5th October, 2023 and as such, she did not even

get an opportunity to appear and contest the writ

petition. In her absence and without hearing her, the

learned Single Judge terminated her service. According

to Mr. Banerjee, the writ petition is not maintainable as

no legal right of the petitioner has been infringed.

Allegations and counter-allegations have been levelled

including an allegation of fraud which involves disputed

questions of fact and cannot be decided in the writ

petition. In support of arguments reliance has been

placed upon a judgment delivered in the case of Dr. M. S.

Mudhol and another Vs. S. D. Halegkar and others,

reported in 1993 (3) SCC 591 and an unreported

judgment delivered in the case of Damodar Valley

Corporation & Ors -vs- Smt. Ballari Sarkar.

It is a cardinal rule both of substantive and

procedural law that no person can be condemned

unheard. The rules of natural justice are required to be

observed to ensure not only that justice is done but is

manifestly seen to be done. The object is to see that a

person is not treated unfairly.

Indisputably, notice upon the appellant was served

on 4th October, 2023 in the evening at about 19.53 hours

intimating that the matter will be taken up on 5th

October, 2023 at 2.00 pm. A Coordinate Bench of this

Court in an appeal preferred by Mr. Sourav Kumar

Mukherjee, learned advocate, considered the observation

of the learned Single Judge that the advocate of the

appellant refused to assist the Court observing that 'we

do not find any tearing hurry to proceed with the matter

and the learned Advocate ought to have been given a

day's accommodation to obtain necessary instruction'. In

the said conspectus and only on the basis of a telephonic

conversation, the order of removal ought not to have

been passed.

The appellant is working as the Principal of the said

college on the basis of the recommendation of the

Commission since the year 2015. The order impugned

would also reveal that the learned Single Judge did not

rule out the possibility that the appellant may be able to

satisfy and answer the allegations levelled against her

and that as such, the learned Single Judge called for a

reply but prior thereto, she was removed.

The appellant has been removed, her office has been

put under lock and key and there had also been a

direction upon the Special Officer's authorized person to

affix a notice on the door of the Principal's chamber. On

5th October, 2023 itself, the Special Officer was

appointed. He was asked to visit the college and to place

the Principal's chamber under lock and key on the date

the order was passed and in compliance with the order of

the Court, the Special Officer had put lock in the

Principal's office on the said date.

No reason has been disclosed in the order as to why

the Court was constrained to take such steps in hot

haste. Grant of an adjournment and an opportunity to

the appellant to reply to the allegations would not have

caused a greater loss and prejudice to the writ petitioner

than the loss and prejudice, the absence thereof would

cause to the appellant.

The allegations have been levelled against the

appellant in the affidavit filed on behalf of the State in

the writ petition after the order passed on 5th October,

2023. The appellant should be given an opportunity to

deal with the allegations levelled against her.

In the said conspectus, we are of the opinion that the

status prevailing prior to the issuance of the order dated

5th October, 2023 needs to be restored.

Accordingly, the direction towards removal of the

appellant from the post of Principal of the said college

and the direction restraining her from entering the

college premises, are set aside. The appellant is

reinstated to the post of Principal.

The above directions have been issued taking into

consideration the fact that no reasonable opportunity of

hearing was granted to the appellant prior to issuance of

the order dated 5th October, 2023.

The learned Single Judge shall decide the writ

petition finally after granting liberty to the parties

including the appellant to file their respective affidavits.

We have been informed by Mr. Nag that on the basis

the order passed by the learned Single Judge he has

assumed charge as the DDO and has signed necessary

documents on the basis of which the requisition of

salaries for the teaching and non-teaching staff excluding

that of the appellant and the respondent no. 26 had

already been approved for disbursement of the salaries

for the month of October, 2023. In view thereof, there is

no further requirement for the Special Officer to continue

as DDO of the said college.

As we have set aside the directions towards removal

of the Principal and reinstated her, she becomes entitled

to her salary for the month of October, 2023. As such,

necessary requisitions to that effect shall be sent by the

authorized signatories as approved by the Governing

Body of the said college to the competent authority so

that the appellant gets her salary for the month of

October, 2023.

The Special Officer is directed to visit the college

tomorrow (12th October, 2023) at 9 am. Both the

appellant and the teacher in charge, who has been given

the charge of Principal, shall be present in the college on

the said date and time. In their presence, the Special

Officer shall remove the locks fastened by him on the

door of the Principal's chamber and grant free access to

the appellant to her chamber. The teacher in charge shall

also hand over the charge of the post of Principal to the

appellant. The Officer-in-Charge, Charu Market Police

Station shall also be present in the college tomorrow at 9

am. He shall ensure that no disturbance is created by

any person and he shall extend all cooperation to the

Special Officer towards compliance of the directions of

this Court.

List the matter for further consideration in the daily

supplementary list of this Court on 13th October, 2023

as fixed at 2.00 p.m.

On the said returnable date, the Special Officer shall

file a report in the form of an affidavit detailing the steps

taken on the basis of the directions contained in this

order.

Mr. Nag shall immediately intimate this order to all

concerned including the Officer-in-Charge, Charu Market

Police Station and the teacher in charge of the said

college.

(Rai Chattopadhyay, J.) (Tapabrata Chakraborty, J.)