Somendra Narayan Chaudhuri vs Jogesh Chandra Chaudhuri College and Others

Barin Ghosh, J.—The petitioner, in the instant writ petition, was the Reader in Bengali at Jogesh Chandra Chaudhuri College, Calcutta. After retirement of the erstwhile Principal of the said College, the petitioner officiated as Teacher-in-Charge of the said College till the appointment of yet another Principal upto 16th March, 1999. The petitioner retired on superannuation on 1st August, 2000. Prior to his retirement the petitioner applied for three months earned leave. That was not granted in the academic interest of the College. However, the College agreed to pay to the petitioner Leave Denial Salary for the period of three months. After his retirement, the pension of the petitioner has been released with effect from 1st November. 2000 inasmuch as under the relevant rules the petitioner was not entitled to pension for a period equal to the period during which he was entitled to Leave Denial Salary. On 19th December, 2001 the Assistant Director of Public Instruction sanctioned Leave Denial Salary payable to the petitioner. The said College has collected the sanctioned amount payable to the petitioner on account of Leave Denial Salary, but has not paid the same to the petitioner. With effect from 1st January, 1996 the pay scale of the petitioner was revised by reason of revision of pay scale of teachers of colleges covered by Pay-Packet Scheme. Fifty per cent of the difference payable to the petitioner on account of such revision has been paid to him. A further 25% of the difference has also been released by the Government and the same has been received by the said College, but the petitioner has not been paid the same. As on the date of filing of the present writ petition, the balance 25% had not been released. The reason for not paying Leave Denial Salary and 25% of the difference appears to be Item No. 6 of the Auditors'' Report on the accounts of the said College for the year ended 30th June, 1999. The said Item No. 6 is as follows :

"6. Legal Expenses:

Legal expenses of Rs. 84.900/- was debited on 10/12/1998 in cash book for 1998-1999. The amount was paid to Mr. Aloke Kumar Biswas, Advocate. Money receipts and expenditure statement are attached with the vouchers. Other documents to justify the expenditure were not available to us for verification.

The expenditures were incurred out of President''s Emergency Funds. Legal expenses of Rs. 3000/- on 17/12/1998 and Rs. 1000/-on 16.03.1999 were incurred and amounts were paid to Mr. S. B. Mukherjee. But supporting documents to justify were not available."

Because of the said note, the said College wrote a letter to the petitioner on 16th January, 2002. In that letter in was mentioned that Rs. 84,990/- was paid to the Secretary by cash on account of legal expenses. It was also mentioned that there was no suit or legal matter either pending or disposed of by the said College vis-a-vis the University of Calcutta or any other Institution whatsoever and accordingly question of incurring any legal expenses by the said College did not arise. Under the circumstances, by that letter the petitioner was requested to prove that the said amount of Rs. 84,990/- had not been misused/misappropriated as reflected in the Report of the Government Auditors dated 30th May, 2001 or to refund the said amount to the College. From the said, letter it would be evidenced that though no supporting document to justify payment of Rs. 4000/- to Mr. S. B. Mukherjee was available, yet the College did not call for any explanation from the petitioner in relation thereto. The petitioner was asked to explain in relation to the expenditure of Rs. 84,990/-, for the said College was not involved in any litigation at the relevant time.

The petitioner by his letter dated 29th January, 2002 brought it to the notice of the said College that the sum of Rs. 84,990/- was drawn and paid to Shri Aloke Biswas. Advocate on account of expenses and counsels'' fees in relation to the litigation of the College in the Supreme Court with the University of Calcutta/Government of West Bengal, which was pending since many years.

In reply thereto the said College by a letter dated 15th February, 2002 informed the petitioner that despite his letter dated 29th January,2002 the petitioner has failed to throw any light or give any clue regarding the so-called litigation. The petitioner was, thus, requested to furnish records relating to the case, i.e., certified copies of all the plaints, written statement filed by the petitioner, certified copies of cross-examination report, certified copies of orders of the court where the litigation was in progress and certified copies of the judgments of the relevant court for which the expenses were incurred through Mr. Aloke Biswas, the lawyer appointed by the petitioner in the case. The petitioner was also asked to clarify as to what did compel the petitioner to take the suit to the Supreme Court along with a certified copy of the judgment passed by the Supreme Court.

In reply thereto the petitioner by a letter dated 1st March, 2002 pointed out to the College that all papers relating to the litigation should be available with the. College. He stated that he had no direct involvement with the litigation and that the papers relating to the litigation were filed by the then Secretary of the Governing Body, Shri S. N. Ghosh and that the same should be available in the records of the College. He also mentioned in the letter that the litigation was discussed in the Governing Body Meetings at regular intervals. The petitioner did not receive any reply to the said letter dated 1st March, 2002.

In the petition the petitioner is seeking a mandamus upon the College to pay to him his aforementioned dues, which have been released by the Government for payment to him. In the petition the petitioner has relied upon an extract of a resolution by circulation dated 16th June, 199S of the Governing Body of the College. The said resolution reveals that the university sought to supersede the Governing Body of the College and accordingly litigation was filed in the Alipore Court and subsequently the matter travelled to the High Court and also to the Supreme Court of India and was then clubbed with other colleges placed in similar situation in SLP Nos. 13586 and 15584. The resolution further discloses that expenses for the litigation were being shared by Surendranath Law College, Chaudhuri Foundation Trust and Surendranath Trust. It was also mentioned that the bills for a number of appearances of senior counsel and advocates-on-record and their travelling expenses to Delhi over the years had been borne by the Trusts and the Law College. It was stated that Jogesh Chandra Chaudhuri College is also a party to the litigation but has not borne any expenses so far and it is only fair that while the other institutions have borne the expenses all these years, the next bill to be submitted by Shri Aloke Kumar Biswas, advocate-on-record be borne by Jogesh Chandra Chaudhuri College.

In the affidavit-in-opposition the said College has contended that no such resolution is available with the College.

It was submitted by the learned counsel for the petitioner that the said College was involved in a litigation. It was submitted that for and on behalf of the said College and other Colleges owned, managed and controlled by Surendranath Education Trust, namely, Surendranath Day College, Surendranath Evening College, Surendranath College for Women, etc. various litigations were initiated for an attempt was made by the Calcutta University to supersede the Governing Body of the said Colleges and those litigations were ultimately resolved in the Supreme Court It was submitted that this court dealt with the matters in F.M.A.T. No. 196 of 1992/F.M.A. No. 510 of 2001 and in F.M.A.T. No. 197 of 1992/F.M.A. No. 973 of 2001. In view of such submissions I called for the records of the said cases. The paper-book filed in F.M.A.T. 196 of 1992 reveal that the subject litigation was principally for and on account of the said College. From the said paper-book it also appears that an attempt was made by the Calcutta University to get rid of the then members of the Governing Body of the said College which action was challenged by or on behalf of the said College by the then members of the Governing Body of the said College and also by the trustees of the Surendranath Education Trust. It also appears that in relation to the other colleges of Surendranath Education Trust similar actions were taken and accordingly at least one more litigation was filed. A learned Single Judge of this Court by a common judgment dated 8th January, 1992 held in favour of the petitioners in the said litigations and quashed the notice by which such interference was sought to be made upon restraining the respondents therein from giving effect to the proposed amendments to the statute. It further appears that two appeals were preferred. It appears that both the appeals were decided by the Appeal Court by a judgment delivered on 15th June, 1998 whereby the appeals were allowed and the judgment and order of the learned Single Judge was set aside.

There cannot, therefore, be any dispute that there was a substantial litigation in this court involving the affairs and management of the said college. From the cause title of the writ petition, as appears from the paper-book filed in F.M.A.T. No. 196 of 1992. it appears that the said litigation was pending since 1979 and was concluded, in so far as this court is concerned, on 15th June, 1998.

It is, therefore, incorrect on the part of the said College to contend that there was no litigation involving the said College at the relevant time. There is no primary document from which it can be said for certain that any Special Leave Petition(s) was/were filed before the Supreme Court against the said judgment of the Division Bench of this court. That is, however, not very important. What is important is pendency of litigation involving the said College in this court, for the then people-in-charge of the College thought it not permissible for the University of Calcutta to interfere with the composition of the Board of Management of the said College.

That being the position the respondent college, I am constrained lo hold, is unjustly withholding payment received by it from the Government on account of the petitioner.

Accordingly the writ petition is allowed. The respondent College is directed to forthwith, but not later than seven days from the date of service of a copy of this order upon it, to pay to the petitioner the sums of monies it has received on account of the petitioner from the Government. It shall be open to the College to apply for and obtain certified copy of the pleadings filed in C.R. No. 6250(w) of 1979, being the writ petition involving the said College as well as the judgments of this court, as mentioned above. This disposes of the writ petition. There will be no order as to costs.

Let the urgent xeroxed certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties as quickly as possible.