REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO.       397              OF 2009 (Arising out of SLP (C) No. 5454 of 2005)

The State of West Bengal & Ors.        ….Appellants  

Versus

Somdeb Bandyopadhayay & Ors. ….Respondents

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Heard learned counsel for both the parties.

2. Leave granted.

3. This appeal arises from the order passed by the Division Bench of the

Calcutta High Court allowing the writ appeal filed by the respondent No.1.

4. The facts, as presented by the appellants, are as follows:  

Respondent  No.1  was  appointed  to  the  post  of  Superintendent  of

Chhoto  Jagulia  Junior  Technical  School,  presently  named  as  Industrial

Training Centre Chhoto Jagulia, by the Governing Body of the said Institute

on 7.7.1993. He was also given the responsibility of the Ex-officio Secretary

of the Governing Body.

Due  to  some  allegations  against  Respondent  No.1,  namely,  non-

functioning  of  the  administrative  work  as  well  the  non-attending  the

Institution an Enquiry Committee was set up.  On the basis of the decision

of  the  Committee,  administrative  function  as  a  Member  Secretary  was

withdrawn and another person was appointed.

A writ petition was filed by respondent No.1 taking the stand that he

should be allowed to continue as Superintendent.  His stand was that he was

prevented from discharging duties after 10.3.1997.  Originally, the petition

was  filed  before  the  West  Bengal  Administrative  Tribunal  (in  short  ‘the

Tribunal’) and interim order was passed by the Tribunal directing that there

should  be so  interference  with  the  functioning  of  the  present  respondent

2

No.1.  Alleging that the interim order was not being carried out contempt

petition was filed.  Tribunal disposed of the petition with certain directions.

Subsequently, on 30.3.1998 the Original Application was dismissed on the

ground that Tribunal had no jurisdiction.

On 11.5.1998, a writ  petition was filed in the Calcutta High Court

seeking restoration of status as Member Secretary of the Governing Body.

Certain interim directions were given.  The present appellant took the stand

that  the respondent was not  attending the office and was not  signing the

attendance register.  A special leave petition was filed by respondent No.1

before this Court which was withdrawn.  The same was directed against the

order dated 22.9.2000 in CPAN 768/2000.  The writ petition was dismissed

by learned Single Judge on several counts.  The basic conclusion was that

since  factual  dispute  was  involved  the  writ  petition  was  not  to  be

entertained.   

A  writ  appeal  was  filed  before  the  High  Court  and  contempt

proceedings were also initiated.  The Division Bench directed that lawful

arrears  have to  be paid.   Certain  directions  were given making stringent

observations  against  the  officials.  An amount  of  Rs.7,33,567/-  was  paid.

3

The High Court was primarily of the view that since the proceedings for

absence were not initiated, the appellant should be bound to pay and there

was no question of any prejudice involved.  The writ appeal was allowed in

the aforesaid terms.

5. Learned counsel for the appellant submitted that the writ petition was

dismissed on the ground that factual controversy is involved, i.e. whether

the writ petitioner’s stand that he was prevented from attending duties or

whether the appellant’s stand that he was not attending office is correct. It

requires  factual  adjudication and such question  cannot  be decided in  the

writ petition.  It is also pointed out that without condoning the delay several

interim  orders  were  passed  which  is  not  permissible  in  law.   Learned

counsel  for  the  respondent  No.1,  on  the  other  hand,  submitted  that

voluminous documents  are available  to show that  the writ  petitioner was

prevented from attending their duties and carrying on his functions.   

6. It  is  to  be  noticed  that  even  without  condoning  the  delay  and

entertaining  the  writ  appeal  the  High Court  has  passed  series  of  interim

orders. Such a course is impermissible as the appeal was non-est in the eye

of law without it being entertained.  Admittedly, the delay in preferring the

writ  appeal  was  not  condoned  at  the  time when the  interim orders  were

4

passed.  The High Court has committed another error in holding that the

writ  petition  was  dismissed  principally  on  the  ground  that  it  was  the

decision of the Governing Body as to who should be its Secretary, although

Government approval is necessary for appointment of the Secretary of the

Governing Body of the Institute.  On the contrary the learned Single Judge

dismissed  the  writ  petition  principally  on  the  ground  that  factual

controversy is involved.  The Division Bench has not discussed this aspect

at all.  Therefore, the order is clearly indefensible.   

7. In the aforesaid background, we set aside the impugned judgment of

the High Court and remit the matter for its consideration as to whether the

writ appeal was to be entertained in view of the conclusions of the learned

Single Judge that factual controversies are involved and, therefore, the writ

petition was not maintainable.

8. The appeal is allowed without any order as to costs.

                       ………….....................................J. (Dr. ARIJIT PASAYAT)              

5

         ………….……

….........................J.          (ASOK KUMAR GANGULY)

New Delhi, January 23, 2009

6