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Laxmikant Shripat Bhandare Vs. C.R. Gerrard - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Miscellaneous No. 127 of 1945
Judge
Reported in(1946)48BOMLR655
AppellantLaxmikant Shripat Bhandare
RespondentC.R. Gerrard
DispositionPetiton dismissed
Excerpt:
.....well argued, what was the use of obtaining another scrap of paper bearing his signature? ';but i think the school authorities might well have thought that there would be at least no harm in reminding him in the most forcible way possible, short of expulsion, dealing as they were with a young person of his age, of what he had undertaken not to do. that dispute, i think, is quite academic, because it is undisputed that the petitioner, if his petition is unsuccessful, in entitled to have his fee back. on july 9 he was written to by the present respondent, demanding an unqualified apology for his letter and intimating that he would be expelled if he failed to give it. well, too much regard can be paid in this world to what is popularly called 'saving of face',but i cannot see how any..........well argued, 'what was the use of obtaining another scrap of paper bearing his signature?'; but i think the school authorities might well have thought that there would be at least no harm in reminding him in the most forcible way possible, short of expulsion, dealing as they were with a young person of his age, of what he had undertaken not to do.8. on june 22, he was communicated with by the head of the department of architecture, in which he was studying, saying that he would not be admitted unless, he signed a new application form. he had, i may say, paid his fee for the term to the head of the department of architecture, and it is in dispute whether that gentleman was the agent of the school to receive that amount. that dispute, i think, is quite academic, because it is undisputed.....
Judgment:

Blagden, J.

1. This is a petition by Laxmikant Shripat Bhandare, a young man now aged twenty-three years, who, on July 4 last, was a student of the J. J. School of Article It is brought under Section 45 of the Specific Relief Act and asks for an order directing the respondent, who is the director of that institution, to forbear from enforcing an order described as of the 13th, but in fact of July 12, 1945, purporting to expel the petitioner from the J. J. School of Art and from preventing the petitioner from attending the said school. An order is also sought for directing the respondent to permit the petitioner to attend the school and to receive his training in the course for which he was studying. This petition was supported by an affidavit on the last sheet of the petition itself, which is a most unusual and admirable affidavit, in that it is exceedingly short and says no more than is necessary. Therein the petitioner verifies as true those allegations in the petition which could be within his own knowledge and states his belief in the truth of the remaining allegations.

2. Section 46 of the Specific Belief Act, 1877, however, requires that every application under Section 45 'must be founded on an affidavit of the person injured, stating his right in the matter in question, his demand for justice and the denial thereof.' What, if anything, the Legislature precisely meant by these words seems to me to be open to doubt. If, as Mr. Babaji for the petitioner has contended, it merely meant that the petition should be supported by an affidavit, it seems to me that it would probably have said so. I am very reluctant to treat an obviously procedural section of an Act of the Legislature as affecting substantive rights given by another section of the same Act, but I am bound to do the best I can to give some meaning to every word used in a document, including an Act, and must, therefore, give some meaning to the words 'his demand for justice and the refusal thereof,' and it seems to me that they necessarily import into Section 45 a provision to the effect that where a person's property, franchise or persona] right is liable to be injured in the circumstances contemplated in that section, it is a condition precedent to his getting relief under that section that he should have demanded justice and that it should have been denied. In most cases this probably does happen; but it seems to me that the relief contemplated by Section 45 cannot be granted unless it does, and unless there is an affidavit in support and that affidavit sets out the fact that it has happened. It may be a pure formality, but I think it is a necessary formality, If, for example, a person holding a public office has obstructed a road going to my house, I cannot, i think, get relief under Section 45 unless I have, verbally or in writing, or over the telephone, or in some manner, demanded that the obstruction be taken away and been met with a refusal. I think it is just as much a condition precedent as is a demand and refusal, or some other act of conversion, to a successful suit for conversion. Mere possession by the defendant of the plaintiff's moveable property is not enough, and if the writ be issued before the actual demand and refusal, the suit is premature: Clayton v. Le Roy [1911] 2 K. B. 1081.

3. That alone would be sufficient to dispose of the present petition, but in view of the questions involved, I think it very desirable, for everybody concerned, that as a matter much less technical and more substantial has been argued, an opinion should be given on it.

4. According to the petitioner, he was admitted to the Architecture section of the J. J. School of Art in about June 1944. He had previously been a student of another section. According to him, things at the school were not, in his-opinion, satisfactory, and he addressed, as he says in his petition, on or about May 31 of this year, but as he now says, through his counsel, several months earlier, a letter to the editor of a newspaper called the Blitz, in company with several other students or ex-students. This letter was actually published on June 2, 1945. No copy of this letter is alleged to have been communicated to the director before its publication in Blitz, nor is there any suggestion that the petitioner had ever applied,, in writing at all events, to the director to have his alleged grievances about the management of the school rectified. I do not propose to read in full the letter which appeared over the signature of the petitioner, amongst others, because, apart from any other reason, I think it would probably add to the harm which this letter has, in all probability, already done. Suffice it to say that if the director had taken proceedings for defamation on the strength of that letter, it would, in my opinion, be capable of supporting an -innuendo-that the director of the J. J. School of Art had at least connived at the manipulation of examination marks by the examiners, and had deliberately abstained from appointing external examiners for an examination, where such a course would be usual, in order to enable members of his staff to slip-through the examination; it further directly charged him with neglect of his duties, and a jury in a suit for defamation might have come to the conclusion that it meant, also, that he had permitted his wife to use materials belonging to the School for her personal work. Those are some matters which it contained. It also requested the director to explain why some eighteen months before its publication seven students had been asked to fill in fresh admission forms and to apply as new students before they were allowed to continue their studies. In form, this letter somewhat resembled a series of oppressive and fishing interrogatories, a form which is not unusual in effusions of this kind. I do not think it is accurate to describe it as a 'scurrilous' letter. It is not couched in actually indecent or abusive words, but its tone is, of course, highly offensive. It is not for me, in these proceedings, to consider whether the facts therein alleged, or any of them, are true, but I must say at once that on the affidavits before me I am far from satisfied that any of them are. That, however, does not conclude the matter. K this were a suit for defamation, the defendant might perhaps have been able to establish that the occasion of its publication was privileged in that he was making a complaint to a quarter where, his alleged grievances might be reasonably expected to be rectified, though I think it is very doubtful whether he would succeed in that argument, as there were other quarters, such as the director himself, or failing him, the appropriate department of the Government, which, I should have thought, were much better qualified to give him the relief he says he wanted than the editor of a weekly paper like Blitz. However that may be, and assuming in favour of the petitioner that he thought what he did was in the best interests of the school and that he thought that its good government and discipline would be benefited by the publication in the press of a document of this kind-and they are, I think, very big assumptions indeed-the question still remains whether the mere publication by a student, during the subsistence of his studentship, of such a letter criticising his professors or masters is not an act flatly inconsistent with discipline, and if such it be, whether the occasion is not one which would justify the proper authority in having recourse to the drastic step which has been taken in the present case.

5. Discipline and its opposite are things which, I am afraid, I find myself perfectly incapable of defining. Still, as Lord Justice Scrutton said on another occasion, 'I cannot define an elephant, but I do recognise one when I see one', and I think I am capable of recognising some of the more startling acts of indiscipline. I may say this about the word 'discipline' itself, that one generally thinks of it, particularly in these days, as a relationship between superior and inferior members of one of the fighting services. That, however, is not the primary meaning of the word. The word ''disciple' from which it is derived, literally means 'pupil', and the proper primary meaning of the word is the relationship which ought to subsist between the teacher and the taught. Of course, it has been transplanted into many other walks of life. Some element of discipline is, I think, necessary between higher and lower officers of any public service, between master and servant, as well as, of course, between officers and other ranks of an army and between higher and lower officers of an army inter se. Indeed, in almost any regularly organised department of society, there must be some who rule and teach and others whose duty it is to learn, submit, and obey. I suppose that 'discipline' necessarily involves a state of mind, in the person subject to it, which unqueetioningly admits superiority to himself, for certain limited purposes, of another human being. Though it happens, I suppose, every day in every army in the world, the moment a private soldier says, 'Our General is an ass' or something to that effect, he is, at once, guilty of a breach of 'good order and military discipline'', because by criticising his superior officer, he, impliedly at all events, asserts that he knows more about the manner in which the officer concerned should discharge his duties than the officer does himself, and, therefore, he is denying that superiority which discipline requires he should admit. No doubt, the case I have just given is a very trivial incident of indiscipline. But supposing the soldier writes to the press and. says that the General Officer Commanding under whom he is serving has no more idea 'of tactics than a novice in a nunnery', there is a clear implication in the letter that he knows more of tactics than the General knows. The breach of discipline is, in a way, all the worse if and in so far as the criticisms are well-founded, because a brilliant and victorious General might easily enjoy the respect of those under his command in spite of the public criticism of a private, while a General who really was an ass-and such a thing is not unknown in history-could ill afford to be criticised by anybody. It does not, of course, necessarily follow that the same thing which would be a breach of discipline in the army is a breach of discipline as between the teacher and the taught, but in considering that question I think it is most important to try to look at the matter from the point of view of the teacher. If he is to do his work at all, he must have students who recognise that he knows more about his subject than they do. The minute that is seriously called in question by his pupils, not only has he so lost the confidence of those he has to try to teach that he cannot hope to impart knowledge to them, but his own confidence in himself, which is equally essential, must be greatly undermined.

6. I have already indicated the general nature of the letter in this case, and I do not propose to go through it again. It is sufficient to say that T. think Mr. Beynon's contention that it is calculated, on the face of it, whether it was so intended or not, to undermine the authority of the Principal and his staff is clearly well founded. So long as the relationship of teacher and pupil subsists, I do not see how any teacher could possibly pass over a publication by a pupil of such a letter in the public press. It is perfectly true that the actual publication took place not during term time but during the vacation, (although, apparently, the letter had been sent to the press for publication, and the control of the petitioner and his friends over that document therefore ceased, a good deal earlier), but even if it had been sent for publication during the vacation, which, apparently, it was not, scholastic discipline does not cease the moment the gates of the school are closed and the students have gone out to play. It is well established by Cleary v. Booth [1893] 1 Q. B. 465 that a school master has authority to punish breaches of the peace occurring between his students while travelling from their homes to school, and his jurisdiction was further extended by Rex v. Newport (Salop] Justices [1929] 2 K. B. 410, where it appeared that the son of the applicant, a boy a little under sixteen years of age, was caned by the Headmaster of a day school, which he was attending, for smoking a cigarette in a public street during his spare time with his father's consent and approval. The probable explanation of the, at first blush, rather astonishing decision that this act of the school master was perfectly proper is that, whatever the father consented to, the smoking of a cigarette by a boy under sixteen was contrary to the law of the land as laid down in the Children's Act, 1908-see the judgment of Avory J. The importance of this decision, here, is that it shows that an act may perfectly well be contrary to scholastic discipline though it took place during a time when the immediate authority of the school master over his pupil was, for many purposes, under suspension. I do not remember whether there were any holidays in that particular institution, but, assuming that there were, let me suppose that during one of them an inmate of Dotheboys Hall had written to the Times exposing the character of Mr. Wackford Squeers. would not Mr. Squeers have been perfectly justified in saying, 'I will not admit the writer of that letter to my school, because by writing that letter and showing up the sort of man I arm he has completely undermined my authority'? I think he would. I am not, of course, for a moment suggesting that there is the slightest comparison between Mr. Wackford Squeers and the respondent in the present case, but I am putting a higher case for the purpose of testing the validity of Mr. Banaji's argument in the matter. It is perfectly true that the head master of a school, or the principal of a college, in the administration of his establishment, has not got arbitrary or unfettered powers to expel students as and when he thinks fit, or even to do so merely because he thinks that the interests of the institution require their expulsion. He cannot, for example, expel a pupil merely because he dislikes his appearance, or even because he thinks, disregarding the interests of the pupil, that the school would be a better place without that pupil. He is bound to take into account the interests both of the particular pupil and of the other pupils. There is no indication in the present ease that there has been any departure from that course. It is also clear that repeated instances of disobedience, any one incident of which would, in itself, be not sufficient to justify expulsion, may, in the aggregate, be sufficient to justify such a course. Mr. Babaji has urged before me that in the present case I have only to deal with an isolated act, That, in itself, is true, but, on the other facts of the case, it is rather apt to mislead. The publication here was made on June 2; the school re-opened on June 11. According to the petitioner, though this is in dispute, he was asked on the 19th to recant his signature in the press, and was; asked to sign some sort of statement to the effect that his signature to the letter had been forged. This, as far as the respondent is concerned, is denied. I will only say this that if it did happen, the suggested method of getting rid of the responsibility for the signature is not one which personally I can commend. The school, however, is a school of art and not a school of morals. In any case, it is denied by the respondent, and I am not satisfied that it really did happen. But assuming that it did, there was an opportunity for penitence given to the petitioner. He did not avail himself of it, and if it is true, it is rather commendable conduct on his part that he refused to sign a false statement that his signature had been forged.

7. He had actually been in correspondence with the director as regards his educational future something like a fortnight before that. He was asked to sign a new admission form, according to him, on June 20, and he suggests that the idea of this was that the authorities would then, having armed themselves with a newly signed form, pretend that he was never previously a student at all, write a letter to say that they refused to take him on as a student, and so get rid of him, without taking the drastic step of expulsion which might, after all, be questioned elsewhere, as it has been. I cannot believe for a moment that so crude a fraud was really contemplated. It may be that the director and others concerned were not, themselves, aware of the process that is gone through in nearly every law suit, called 'discovery of documents'; but they must be aware, as I trust the public are, that truth has a very unpleasant way of coming out in places like the present, and that the truth of the matter must, sooner or later, almost inevitably, have come to light, if they seriously tried to pretend that Mr. Bhandare had never been a student at all. I cannot believe that they attempted anything so wrong and so stupid, for they must have known that the pretence could not last very long and that the truth must come out. The real reason, II am quite satisfied, was this, that the form in question contained express undertaking by the signatory that so long as he was a student of the school he would do nothing, either inside or outside the school, that would interfere with its orderly government and discipline. That undertaking had already been obtained, and, it may be well argued, 'what was the use of obtaining another scrap of paper bearing his signature?'; but I think the school authorities might well have thought that there would be at least no harm in reminding him in the most forcible way possible, short of expulsion, dealing as they were with a young person of his age, of what he had undertaken not to do.

8. On June 22, he was communicated with by the Head of the Department of Architecture, in which he was studying, saying that he would not be admitted unless, he signed a new application form. He had, I may say, paid his fee for the term to the Head of the Department of Architecture, and it is in dispute whether that gentleman was the agent of the School to receive that amount. That dispute, I think, is quite academic, because it is undisputed that the petitioner, if his petition is unsuccessful, in entitled to have his fee back.

9. On June 23, the petitioner refused to sign a new application form. On July 9 he was written to by the present respondent, demanding an unqualified apology for his letter and intimating that he would be expelled if he failed to give it. He replied at great length on the 11th, again refusing to tender any apology and seeking to justify his statements. Well, too much regard can be paid in this world to what is popularly called 'saving of face', but I cannot see how any person in the position of the respondent could, consistently with his position and duty to maintain his own dignity, have taken, after what had happened, and in the light of that letter, any other step than that which the respondent did take on July 4. He could not possibly have kept amongst students attending his school a student who had publicly and vehemently criticised his conduct as director and who had stubbornly (possibly rightly) refused either to retract his statements or to apologise for them, or to sign a fresh undertaking not to be guilty of acts of indiscipline. Still less could he descend into the arena and seek to justify himself in the columns of Blitz. However serious, or the reverse, the original letter might have been, and in my view it was in itself a very serious breach of discipline-the letter plus the subsequent events left only one possible alternative.

10. My attention has been called, not without considerable interest, to 'Fitzgerald v. Northcote' (1885) 4 F. & F. 656, which was an action by a youth named David Fitzgerald, by his father, and next friend, the Eight Hon. Mr. Justice Fitzgerald, against the Rev. S. Northcote, and the Rev. W. Stone, the heads of a scholastic establishment at which he had been placed by his father, for assault and false imprisonment on the occasion of the youth's expulsion therefrom. The first count of the declaration stated that the defendants assaulted the plaintiff and imprisoned him, and took from him a pocket-book, etc.; second count, that the defendants on another occasion assaulted and imprisoned him; third count, that they seized and took the plaintiff's pocket book and carried it away, fourth count, for conversion of the book. Mr. Justice Fitzgerald was an Irish Judge of considerable eminence, and he placed his son, who seems to have inherited some of the usual characteristics of his race, at an education establishment for Catholics near Birmingham, where, apparently, Master Fitzgerald took part in an organisation modelled, I imagine, on the Fenian Society of his native country, called the 'Anti Bunker Confederacy' the members of which were found recorded in a note book of which he was relieved on the occasion of his expulsion. At p. 673 and subsequent pages of the Report is set out correspondence between the boy's father and the Head Master of the School, in the course of which the learned Judge, very properly, applied for particulars of the alleged misconduct of his son, to which he was answered as follows (pp. 674-675) :

I will answer your inquiries in order. 1. The catalogue of David's offences during the three months before Shrove Tuesday comprises, 1st, smuggling into the College a bottle of spirits and entertaining his friends, two of whom drank to excess (this came to my knowledge only a few weeks since); 2nd, borrowing from the prefect a pass key and taking a rubbing and a wax impression of it before he returned it; 3rd, going to an inn in Erdington, and this too at a time when be was already under penance for former breaches of discipline; 4th, three days after being put in penance by myself for the last offence, disregarding that penance altogether, and enticing a companion into the plantations and shooting there; 5th, equivocating and otherwise misbehaving himself when detected, and then preferring a complaint to me against the prefect by way of forestalling the prefect's report against himself.

No doubt, no one of these things would in itself be serious enough to merit summary expulsion from the school, but it is noticeable that as a result of their cumulative effect, the youth, being advised no doubt by his learned father, did not complain of the expulsion at all, but only of the alleged false imprisonment and assault, and it is interesting to notice that an English jury returned a verdict in favour of the plaintiff, but only gave him 5 as damages. That case alone seems to me to show that continued defiance o# scholastic discipline is a thing in itself quite inconsistent with the relationship which ought to exist between the teacher and the taught, and if persisted in can only result in the pupil's being dismissed, for if it continues it must completely undermine the teacher's authority over other pupils.

11. Here, at any rate by June .12, there were in existence facts on which the respondent was justified in expelling the petitioner. It seems to me that it might well have been argued that whether he did so with a good or a bad motive is immaterial. In most of the cases where the motive of the authority in expelling the pupil has been under consideration, the fact relied on as justifying expulsion was in dispute, as for example, in the famous Archer Shee case, relating to Dartmouth College, where the plaintiff was expelled on what ultimately proved to be a completely false charge of stealing. No doubt the fact, if fact it be, that the school master, who has to consider whether the pupil has been guilty of a particular offence, determined that he had been (when in fact he had not) in a manner which involved bad faith on his (the master's) part, would be quite fatal to his defence in a suit for breach of contract by expelling the pupil. If, on the other hand, the fact charged against the pupil be admitted, and be in itself sufficient to justify expulsion (as is here the case), then the position might be different, because if you have a legal right to do something, the fact that you do it with a bad motive does not make it illegal (see Mayorf &c.;, of Bradford v. Pickles [1895] A.C. 587. It is however sufficient in the present case to say that there are allegations of bad faith in the affidavit of the petitioner against the director; but such allegations are very easily made, and in this country far too freely made; and I am not satisfied that there is any substance in them. The result is that the petition fails and must be dismissed with taxed costs; two counsel allowed.


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