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Sukhlal Mondal Vs. Bimal Krishna Biswas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 21 of 1981
Judge
Reported inAIR1982Cal207
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 39, Rules 1 and 2
AppellantSukhlal Mondal
RespondentBimal Krishna Biswas and ors.
Appellant AdvocateBholanath Sen, ;Nitish Bhowmick and ;Mirza Md. Faruque, Advs.
Respondent AdvocateTapash Chandra Roy and ;Sunit Kr. Panja, Advs.;Arun Prokash Sircar and ;Pulak Ranjan Mondal, Advs.
Cases ReferredV.P. Gindroniya v. State of Madhya Pradesh
Excerpt:
- .....application for temporary injunction was rejected. 2. the petitioner as plaintiff commenced a suit being title suit no. 408 of 1980 in the court of munsh 5th court at alipore for a declaration that the appointment of mr. b.k. biswas o.p. no. 1 dated 16-5-1980 by the president, west bengal board of secondary education as administrator was illegal and void and for a further declaration that the order of suspension of the plaintiff petitioner issued by o.p. no. 1 on 11-8-1980 was also void and illegal. there was also a prayer for permanent injunction restraining the o.ps. from proceeding further with the order of suspension dated 11-8-1980 and from interfering in any way with the function of the petitioner as the headmaster of the said school, 3. in the same line there was an.....
Judgment:
ORDER

Sudhindra Mohan Guha, J.

1. This application for revision arises out of an order passed by Sri B.K. Dutta, Additional District Judge, 8th Court, Alipore, affirming the order dated 25th Sept. 1980 passed by the Munsif, 5th Court, Alipore, whereby the plaintiff's application for temporary injunction was rejected.

2. The petitioner as plaintiff commenced a suit being title suit No. 408 of 1980 in the court of Munsh 5th Court at Alipore for a declaration that the appointment of Mr. B.K. Biswas O.P. No. 1 dated 16-5-1980 by the President, West Bengal Board of Secondary Education as Administrator was illegal and void and for a further declaration that the order Of suspension of the plaintiff petitioner issued by O.P. No. 1 on 11-8-1980 was also void and illegal. There was also a prayer for permanent injunction restraining the O.Ps. from proceeding further with the order of suspension dated 11-8-1980 and from interfering in any way with the function of the petitioner as the Headmaster of the said school,

3. In the same line there was an application for temporary injunction under Order 39, Rules 1 and 2 of the Civil Procedure Code read with Section 151 of the Code. It was stated in the plaint that Barisba Vivekananda High School was upgraded and recognised by the Board on 1st of January, 1968. The petitioner is said to be the founder and approved Headmaster of the School. On the complaint made by the rival party enquiries were made into such complaint many a time during 1977-78. On 14-5-1979 the Managing Committee was superseded and one Sri P.K. Chatterjee was appointed Administrator by the Board. The present petitioner was charge-sheeted by him on 21-3-1980 and 26-3-1980. But both the charges were ultimately dropped,

4. On transfer of Sri P.K. Chatterjee, Sri B.K. Biswas, O.P. No. 1 was appointed as Administrator on 13-5-1980. But he took over charge from Sri P.K. Chatterjee on 25-7-1980. Mr. Biswas also issued charge-sheet on 11-8-1980 against the petitioner which is said to he a verbatim reproduction of the previous charge-sheet issued by the Administrator on 4-2-1980.

5. Along with the order of charge-sheet the Administrator issued an order of suspension with immediate effect. This very order of suspension has been challenged to be illegal and invalid.

6. Learned Munsif on hearing both sides and on consideration of the affidavits sworn by the parties was pleased to reject the petitioner's application for temporary injunction and vacated the ad interim order of injunction granted earlier on 25-9-1980. The petitioner thereafter came in appeal before the learned District Judge, 24 Paraganas. This was registered as Misc. Appeal No. 567 of 1980. This appeal as stated earlier was dismissed by the learned Additional District Judge.

7. It is against this order of dismissal of the said miscellaneous appeal the petitioner has come up in revision. Mr. Bholanath Sen, learned counsel for the petitioner, drawing my attention to Rule No. 28 (9) (VIIa) of the Board of Secondary Education, argues that a teacher or an employee can be suspended where such suspension is in the interest of the Institution. He also places the charge-sheet Annexure E to the application filed in this court wherein the order of suspension was made in the following lines a

'As the charges to be enquired into against Sri Mondal are very serious in nature involving the Head of the teaching staff of the school the undersigned considers it necessary that pending the enquiries Sri Mondal should be placed under suspension and therefore the undersigned hereby placed Sri Mondal under suspension with immediate effect'.

Thus it is argued by Mr. Sen that the order of suspension was made as it was considered necessary by the Administrator. There is nothing to show that such suspension was in the interest of the Institution. Mr. Tapas Chandra Roy, learned counsel for the O.P. 1 on the other hand contends that order of suspension in the interest of the institution need not be noted in the order of suspension itself. It is a matter of satisfaction to the issuing authority. The order of suspension would not have been issued had that not been in the interest of the institution. So, this is a debatable point which should be decided in trial.

8. On the materials on record it is contended by Mr. Sen that the plaintiff/ petitioner was successful in establishing that there was a prima facie case for going to trial. Reference to the decision in American Cyanamid Co. v. Ethicon Ltd. reported in (1975) 1 All ER 504 was made to show that there was no rule of law that the court was precluded from considering whether, on a balance of convenience, an interlocutory injunction should be granted unless the plaintiff succeeded in establishing a prima facie case or a probability that he would be successful at the trial of the action. All that was necessary was that the court should be satisfied that the claim was not frivolous or vexatious i.e. that there was a serious question in the trial.

9. Mr. Arun Prokas Sirear learned Advocate for the W.B. Board of Secondary Education, O.P. No. 4 adopts the arguments advanced by Mr. Ray. Both of them contend that this court of revision would not interfere with the concurrent findings of both the courts below. They are also of the view that the temporary injunction refused by both the courts should not (sic) be refused by a court of revision. Reliance is placed on the decision in the case of Municipal Corporation of Delhi v. Suresh Chandra Jaipuria, reported in : [1977]2SCR10 . It is held therein by the Supreme Court that the interference by the High Court with the concurrent findings was unjustified as the court had overlooked the principle governing interference under Section 115 of the Civil P.C. Reliance is also placed on the decision in the case of the Managing Director, Hindusthan Aeronautics Ltd. Bangalore, Hyderabad v. Ajit Prasad Tar-way reported in : (1972)ILLJ170SC . The Supreme Court held therein that the High Court should not interfere even if the order is right or wrong or in accordance with law or not unless it has exercised the jurisdiction illegally or with material irregularity. In this case there has been material irregularity in the exercise of Jurisdiction as the courts below did not look into the prima facie case of the petitioner whether there were good grounds to challenge the legality or otherwise of the order of suspension.

10. Mr. Ray lastly contends that civil court had no jurisdiction to entertain a suit of this nature, The dispute as to the jurisdiction should be taken at the earlier stage. It would not appear that such objection had ever been raised in the courts below. Anyway, Mr. Ray relies on the decision in the case of The Premier Automobiles v. Kamlakar Shantaram Wadke reported in : (1975)IILLJ445SC to show the principles on which a civil court under Section 9 of the Code can assume jurisdiction. On the basis of this decision it is contended that if the dispute does not relate to enforcement of any right under the law of the Secondary Education Board of West Bengal, in that case the remedy would lie in the civil court. According to him, the provision for appeal has been provided in the statute itself, under Rule 22. Reliance is also placed on the decision in the case of V.P. Gindroniya v. State of Madhya Pradesh, reported in : (1970)IILLJ143SC . He specially draws my attention to paragraphs 6, 7 and 8 of the report at p. 1496. The sum and substance of his contention is that as the provision for appeal has been provided in the statute itself the civil court has been ousted of its jurisdiction to entertain a suit of this nature. It should not be overlooked that the present suit was instituted for certain declaration and the validity of the order of suspension has been challenged on the ground of non-compliance with the statutory rule. In the context of the matter the petitioner cannot be said to have chosen a wrong forum. Anyway, these matters require due consideration on the evidence to be adduced by the parties. As the point of jurisdiction was not questioned earlier, I do not propose to bind the lower courts by making any observation at this stage. This much only can be said that the plaintiff has been successful in establishing that he has a good case for going to trial. Again the suit itself would become infructuous if an order of injunction as prayed for is refused.

11. Thus, on hearing of arguments of all the parties concerned and on consideration of entire facts and circumstances of the case and materials on record what I propose to suggest is that all the parties would maintain status quo till the disposal of the suit filed by the plaintiff/ petitioner,

12. This revisional application is thus disposed of and the Rule is also disposed of. There will be, however, no order as to costs.


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