Dr. Achina Kundu vs State Of West Bengal & Ors.

Petitioner has sought, inter alia, Mandamus commanding respondents to forthwith cancel, rescind, revoke letters both dated 26th December, 2017,

copies of which appear at pages 77 and 78 of the writ petition. Letter dated 26th December, 2017 appearing at page 78 was issued by Government of

West Bengal, Judicial Department, requesting the addressees being Government functionaries to attend meeting of the Committee to be held on 27th

January, 2018, to review the allegation of discrimination regarding regularization of services of part time teachers of Jogesh Chandra Chaudhuri

College of Law in terms of circular dated 11th January, 2001. The said letter says that it had been held to call, inter alia, petitioner in the hearing. The

other letter dated 26th December, 2017 is also a letter issued by the State Government to, inter alia, petitioner enclosing copy of the aforesaid letter of

date and requesting her to attend meeting of the Committee.

Mr. Mukherjee, learned senior advocate appearing on behalf of petitioner submits, undisputed fact is that his client was appointed as a full time

lecturer in the said college. She has by now put in thirty-three years of service having since been appointed as reader. According to him, the enquiry

sought to be undertaken is purportedly in compliance with directions in judgment dated 23rd December, 2006 made in two appeals being MAT no. 458

of 2016 (Bulbul Sircar Ray vs. the State of West Bengal & Ors.) and MAT no. 530 of 2016 (Shampa Bhanja vs. the State of West Bengal & Ors.).

He refers to a part in the judgment by which the appellate court found that the learned Trial Judge rightly declined petitioners’ prayer as sought for

in the writ petitions, the writ petitioners being appellants therein. The relevant part is extracted below:

“Therefore the learned Trial Judge rightly declined their prayer as sought for in the writ petitions, which does not suffer from legal infirmity.

Therefore, it requires no interference in appeal.†He submits, the appellate court thereafter went on to make certain directions as would appear from

paragraphs 17 to 20 of the judgment. According to him, writ petitioners/appellants therein were part time teachers seeking regularization. They had

alleged that other similarly situated persons had got regularization while they had been deprived. Their cases were rejected by both the trial and

appellate courts. The directions made by the appellate court in that context were as would appear from the part of the said judgment extracted below:

“……we find it fit to direct them to ensure revisiting the situation upon giving opportunity of hearing to all concerned as to whether any candidate,

in the similarly situated circumstance like the appellants, despite non-fulfilment of two conditions together, as mentioned in the circular dated 11th

January, 2001 (supra) was favoured by extending benefit of said circular during the period from 1st April, 2001 to 31.03.2015. We make it clear that

nonetheless of not fulfilment of those two conditions together as laid down in the circular, had there been any order extending benefit of U.G.C. scale

of pay the authority concerned upon conclusion of enquiry and hearing may be at liberty to take all necessary steps permissible under law or rules, not

only in respect of the candidate(s) in default, but also the erring officer(s) in person if acted in the name of authority(s) in violation of the circular dated

11.01.2001 (supra).â€​

Referring to impugned letter appearing at page 78 he submits, the enquiry to be made was reviewing of allegations of discrimination regarding

regularization of services of part time teachers of the said college. He reiterates that there is no dispute that his client was appointed as a full time

teacher. He relies on several judgments:

i) State of Pubjab (now Haryana) and others vs. Amar Singh andanother reported in AIR 1974 SC 994. Paragraph 29 of the said judgment is

extracted below:

 “29. An order like Annexure ‘A’ ordinarily binds the parties only and here the State which is the appellant is seriously prejudiced by that

order but is not a party to it. Therefore, it cannot bind the State proprio vigore. It was argued by Shri Dhingra that the State could have moved by way

of appeal for review and got the order set aside if there was ground and that not having done so it was bound by the order. As a matter of fact, the

State, which is not a party to the proceedings, does not have a right of appeal. The ordinary rule is that only a party to a suit adversely affected by the

decree or any of his representatives-in-interest may file an appeal. Under such circumstances a person who is not a party may prefer an appeal with

the leave of the appellate court “if he would be prejudicially affected by the judgment and if it would be binding on him as res judicata under

Explanation 6 to Section 11†(see Mulla Civil Procedure Code 18th edn. Vol. 1, p.421). Section 82 of the Pubjab /Tenancy Act, 1887, which may

perhaps be invoked by a party even under the Act, also speaks of applications by any party interested. Thus, no right of review or of appeal under

Section 18 can be availed of by the state as of right.â€​

ii) Bhanu Kumar Jain vs. Archana Kumar and another reported in AIR 2005 SC 626 is for the declaration of law regarding availability of alternate

remedies and circumstances in which they may be available simultaneously.

iii) Shri Surendra Kumar Ray Chowdhury vs. The Collector of Calcutta & Ors. reported in 1985 (1) CLJ 332 by which a learned Singe Judge of this

Court in paragraph 12 of the judgment said as follows:

“12. Thus, the petitioner his father and his mother entered with the Governor of Bengal into a contract to save the latter from loss that might be

caused by the conduct of the petitioner (vide section 124 of the Indian Contract Act). Mr. Mukherjee, learned advocate for the petitioner, has

submitted that the aforesaid bond does not confer upon the Government any power to arbitrate or adjudicate whether loss had been actually caused by

any act or omission on the part of the petitioner. Only after it is determined in any judicial proceeding that the petitioner is liable to indemnify, the

Government would have right to sell the aforesaid Government securities. In the instant case there had been no such medical determination.

Therefore, the respondents were not entitled to sell the Government securities.â€​

He submits, there must be conferment of the power to adjudicate upon a person failing which the person has to resort to availing remedy from court.

Directions in the judgment of the appellate court were regarding enquiry to be made of persons similarly situated with petitioners/appellants before the

said court. Petitioner not being similarly situated could not be subjected to an enquiry being conducted pursuant to such directions. Thus the committee

did not have the power to inquire against her.

iv) Union of India vs. Raman Iron Foundry reported in AIR 1974 SC 1265, in paragraph 9 of which Supreme Court while affirming view taken by

Bombay High Court, extracted therein, stated as follows:

“Chagla, C.J. in the last mentioned case (AIR 1954 Bom 423), stated the law in these terms:

“In my opinion it would not be true to say that a person who commits a breach of the contract incurs any pecuniary liability, nor would it be true to

say that the other party to the contract who complains of the breach has any amount due to him from the other party. As already stated, the only right

which he has is the right to go to a Court of law and recover damages. Now, damages are the compensation which a Court of law gives to a party for

the injury which he has sustained. But, and this is most important to note, he does not get damages or compensation by reason of any existing

obligation on the part of the person who has committed the breach. He gets compensation as a result of the fiat of the Court. Therefore, no pecuniary

liability arises till the Court has determined that the party complaining of the breach is entitled to damages. Therefore, when damages are assessed, it

would not be true to say that what the Court is doing is ascertaining a pecuniary liability which already existed. The Court in the first place must

decide that the defendant is liable and then it proceeds to assess what that liability is. But till that determination there is no liability at all upon the

defendant.â€​

This statement in our view represents the correct legal position and has our full concurrence. A claim for damages for breach of contract is, therefore,

not a claim for a sum presently due and payable and the purchaser is not entitled, in exercise of the right conferred upon it under clause 18, to recover

the amount of such claim by appropriating other sums due to the contractor. On this view, it is not necessary for us to consider the other contention

raised on behalf of the respondent, namely, that on a proper construction of clause 18, the purchaser is entitled to exercise the right conferred under

that clause only where the claim for payment of a sum of money is either admitted by the contract or, in case of dispute, adjudicated upon by a Court

or other adjudicatory authority.â€​

He submits, there be an interim order protecting petitioner from any consequence of not presenting herself to participate in the enquiry pending

disposal of this writ petition. Mr. Majumder, learned senior advocate, Additional Advocate General appears on behalf of State. He submits, the enquiry

is in compliance of directions made. Referring to paragraph 17 of the said judgment in appeal, he points out there is reference to paragraphs 10 to 13 (

in CAN 3662 of 2016/MAT 530 of 2016) and names of candidates disclosed in those paragraphs. Petitioner is one of those candidates whose name

was disclosed. He submits, petitioner has urged a jurisdictional fact which must necessarily be urged before the committee. He relies on a decision of

Supreme Court reported in (2007)1 SCC 732 (Arun Kumar and others vs. Union of India and others), in particular to paragraphs 74 and 85 as are

extracted below:

“ 74. A “jurisdictional fact†is a fact which must exist before a court, Tribunal or an Authority assumes jurisdiction over a particular matter. A

jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a court, a tribunal or an authority. It is the fact upon which an

administrative agency’s power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a court or

authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by

erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not posses.

In our opinion, the submission of Mr. Salve is well founded and deserves to be accepted that “concession†under clause (ii) of sub-section (2)

of Section 17 of the Act is a “jurisdictional factâ€. It is only when there is “concession†in the matter of rent respecting any accommodation

provided by an employer to his employee that the mode, method or manner as to how such concession can be computed arises. In other words,

concession is a “jurisdictional factâ€; method of fixation of amount is “fact in issue†or “adjudicatory factâ€. If the assessee contends that

there is no “concessionâ€​, the authority has to decide the said question and record a finding as to whether there is “concessionâ€​ and the case is

covered by Section 17(2)(ii) of the Act. Only thereafter the authority may proceed to calculate the liability of the assessee under the Rules. In our

considered opinion, therefore, in spite of the legal position that Rule 3 is intra vires, valid and is not inconsistent with the provisions of the parent Act

under Section 17(2)(ii) of the Act, it is still open to the assessee to contend that there is no ""concession†in the matter of accommodation provided by

the employer to the employee and hence the case did not fall within the mischief of Section 17(2) (ii) of the Act.

He submits, there should be no interference at this stage and during pendency of this writ petition the committee will not pass or make any order

regarding petitioner without leave of court.Mr. Gupta, learned senior advocate appears on behalf of the college. He refers to paragraphs 18 and 20 of

the said judgment in appeal. He points out that the directions included constitution of the committee, to include the college. Further direction is that

number of committee members should not be exceed 5 which includes inclusion of the college in the committee. According to him, the committee has

not duly been constituted in leaving out the college. As such, it had no right to proceed with the inquiry.

Mr. Bhattacharyya, learned advocate appears on behalf of respondent nos. 7 and 8 who were petitioners/ appellants in the writ petitions dealt with by

the appeal. He submits, admittedly petitioner does not have U.G.C. prescribed qualification. The enquiry is about candidates who were not duly

qualified but had got U.G.C. scale of pay to be given to those who had U.G.C. prescribed qualifications. Petitioner’s contention regarding scope of

enquiry to exclude her is incorrect by her own admission of not possessing prescribed qualification. He submits further, the college did not accept

notice from the committee on the reason that appeal had been preferred. He clarifies, the notice was sent to appear and assist. He submits, he will

produce the notice on adjourned date. It is his still further submission that the writ petition is in effect a challenge to show cause. That should not be

entertained. He relies on a judgment of Supreme Court in Union of India and another vs. Kunisetty Satyanarayana, in particular to paragraphs 13 and

Paragraph 14 is extracted below:

“14. The reason why ordinarily a writ petition should not be entertained against mere show-cause notice or charge-sheet is that at that stage the

writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not

amount to adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite

possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or

hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice

or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party

is passed, that the said party can be said to have any grievance.â€​

The impugned notice at page 78 says it is for the purpose of reviewing the allegation of discrimination regarding regularization of the services of part

time teachers. No submission has been made or document handed up to show otherwise than what has been submitted on behalf of petitioner, that she

was appointed a full time teacher. Prima facie appreciation of her case of being outside the purview of the enquiry is in her favour. Supreme Court in

Arun Kumar and Others (supra) had said if a Court wrongly assumes the existence of a jurisdictional fact, the order can be questioned by a writ of

Certiorari. Petitioner’s submission is accepted at this stage that committee has wrongly assumed petitioner to be a part time teacher. Kunisetty

Satyanarayana (supra) does not say that challenge to show-cause notice cannot at all be maintainable.

For the reasons aforesaid petitioner for the present is not required to participate in the enquiry. This direction as an interim measure is sufficient for

the time being in spite of submissions of Mr. Gupta recorded above, which will be gone into in final hearing of the writ petition. Respondents are at

liberty to file affidavits-in-opposition. Advance copies of affidavits-in-opposition to be used must be served upon petitioner by 10th May 2018.

Petitioner will be at liberty to use affidavit-in-reply which will be accepted on the adjourned date upon advance copy served. List on 16th May, 2018

under the heading ‘motion’ for hearing and disposal.