KRISHNA CHANDRA GHOSH & ORS. v. DIPOK KUMAR DUTTA

Judgment

#6. A Writ Petition Petition was filed in 2003 being WP No. 2299 of 2003 2003 by six persons, all claiming claiming to be Assistant Teachers in Bedrabad High High School, (hereinafter referred referred to as the School) working at the said school school from their respective dates of appointment or joining. The Writ Petition Petition which was disposed of by an order of this this Hon’ble Court dated 17th 17th November, 2003. The order disposing disposing of the Writ Petition had two directions. First, the Secretary Secretary of the School was directed to send all relevant relevant papers regarding the service service of the petitioner to the District Inspector Inspector of School (SE), Malda, within order. within two weeks from the date of receipt of the order. Second, the District District Inspector of School (SE), Malda was directed directed to accord approval approval to the appointment of the petitioners within a a period of four weeks from from the date of receipt of the said papers from the Secretary Secretary. It is explicit in the order that these two directions contained in in the order would take effect effect only upon the petitioners communicating the the order to the Secretary of of the School and the District Inspector of Schools Schools (SE), Malda. WPCRC 475 WITH WITH WPCRC 25 475 of 2013 OF 2018 REPORTABLE REPORTABLE Both the Managing Managing Committee of the School and the State State of West Bengal had carried carried the order of 17th November, 2003 in appeal. appeal. The appeals were filed filed after a delay of 8 and 9 years, respectively. The The appeals were not entertained. entertained. Insofar as the appeal filed by the Managing Committee was was concerned, it was dismissed for non-prosecution. ecution. The appeal preferred preferred by the State of West Bengal was not entertained, entertained, as the prayer for condonation condonation of delay itself was rejected. Thus, the order order of 17th November, 2003 remained unscathed. It is the non compliance of the directions in the order da dated 17th November, 2003 Applications. 2003 that has given rise to the two Contempt Applications. The Writ Petitioners Petitioners filed a contempt application being CPAN CPAN 1771 of 2004, sometime sometime 2004, alleging inter alia contemnors/respondents had not complied with the directions in contemnors/respondents in the order of 17th November, November, 2003. A Rule was issued issued in CPAN 1771 of 2004 and the Contempt Petition Petition was renumbered WPCRC WPCRC 475 of 2013. A second Contempt Contempt Application, CPAN 1842 of 2013, was filed filed by Uttam

#12. Kumar Sarkar, introduced as the seventh Writ Petitioner, who was added as a petitioner in in WP No. 2299 of 2003 on 11th May 2012, almost almost 9 years

after the Writ Petition Petition had been disposed of on 17th November, November, 2003. WPCRC 475 WITH WITH WPCRC 25 475 of 2013 OF 2018 REPORTABLE REPORTABLE

#13. A Rule, WPCRC WPCRC No. 25 of 2018, was issued in CPAN 1842 of of 2013 filed by Uttam Kumar Kumar Sarkar.

#14. Both matters have been taken up together as subject matter pertains pertains to the same acts of commission or omission by by the same alleged contemnors contemnors.

#18. Several orders have have been passed in the contempt petitions, some some of which relevant. are extremely relevant. Two of such orders, orders, dated 27th March 2015 and 6th July, 2018, 2018, are of They relevance. They are relevant, since, by both orders rules WPCRC 475 of 2013 and WPCRC 25 of 2018 were discharged and both Contempt Contempt Petitions dismissed on the aforestated respective dates. The dismissal of of WPCRC 475 of 2013 was on a clear finding finding that the petitioners had had not complied with the direction of the Court Court and were therefore not entitled entitled to claim that the respondents had deliberately deliberately or wilfully violated

#2003. ted the directions in the order of 17th November, 2003. WPCRC 25 of 2018 was dismissed on 6th July, 2018 2018 on a specific finding finding that the petitioner was taking a chance and there was nothing in his his application which could be construed as an act of WPCRC 475 WITH WITH WPCRC 25 475 of 2013 OF 2018 REPORTABLE REPORTABLE contempt. The The rule was thus discharged and the contempt contempt petition dismissed.

#19. By an order of 5th April, 2023, on the alleged concession concession of the counsel appearing appearing for the contemnors, both aforestated aforestated orders of dismissals dated dated 27th March, 2015 and 6th July, 2018 were recalled. recalled. I have deliberately used used the term “alleged concession” as same has been denied by compliance by the contemnor, (DI) while he filed his compliance report dated 3rd 3rd March, 2025. He categorically stated that he he had never authorised counsel counsel to grant any such concession.

#20. Thus, the two Contempt Contempt Petitions were revived.

#23. Compliance reports reports have been filed by the alleged contemnors, contemnors, one in 2023 and the last, as recently as in March, 2025. One of the the original petitioners Sukumar Sukumar Sarkar filed an exception in the form of a reply reply to the compliance report report of 2023. It is bare and makes no whisper about about non- service of the compliance order, which was categorically taken in the compliance Report. These are the admitted Petitions. admitted facts relating to the Contempt Petitions. Counsel for the the petitioners has submitted that the order order of 17th 2003 November, 2003 is a mandatory order, which ought to have been complied same. complied by the authorities without questioning the same. WPCRC 475 WITH WITH WPCRC 25 475 of 2013 OF 2018 REPORTABLE REPORTABLE He has also argued argued that the Secretary and the District Inspector, Inspector, have both been blaming blaming each other for non-compliance of the order order of This Court. Hon’ble Court. Thus, counsel counsel submits there is a clear case of contempt contempt, as the

#25. contemnors have have deliberately and wilfully not complied directions of this Hon’ble Court made on 17th November, November, 2003 and are thus liable liable to be penalized.

#26. Counsel for the explanation. the respondents/contemnors has given a detailed explanation. In submitted fact, he submitted there has been no violation violation of directions contained contained in the order of 17th November, 2003.

#28. He has submitted submitted that the second portion of the order, which directed directed the District Inspector Inspector of Malda to approve the appointment of the petitioners as Teaching Staff Staff of Bedrabad High School, was dependent on on the first part, which required required the supply of relevant documents by the Secretary Secretary of the School to the the contemnor/District Inspector within two weeks weeks from the date of receipt receipt of the order. Thus, without receiving these these requisite papers, the DI could could not have regularised the appointment. The second explanation explanation given by the District Inspector relates to the fact that the school school was upgraded from a Junior School to a Senior Senior High School, resulting resulting in the creation of six teaching posts, which which had WPCRC 475 WITH WITH WPCRC 25 475 of 2013 OF 2018

#33. REPORTABLE REPORTABLE immediately been been filled up. Thus, there were no vacant posts posts to which the petitioners could Teachers. could have been approved as Assistant Teachers. He submitted that that the petitioners, on account of the promulgation promulgation of the School Service Commission Act, 2005, were not qualified to be be appointed to the aforesaid commission aforesaid posts as Assistant Teachers. School Service commission Act, 2005 had introduced introduced new and higher parameters for appointment appointment of persons to the post of Assistant Teacher, which the petitioners petitioners did not have. I have heard the the learned counsel appearing for both parties extensively and have gone through through the records of the cases. A brief background background is relevant to understand the case made out by the petitioners and contemnors. the defence/explanation rendered by the contemnors. The school was was upgraded on or about 1st May, 2000, as a Senior Senior High School. However, as it it appears from the records, the District Level Inspection Team, upon conducting conducting an inspection, had found that the school school did not maintain any records records either for its teaching or non-teaching staff. staff. In fact, for such violation, violation, the Managing Committee of the School was was removed and an Administrator Administrator was appointed on 21st March, 2003, who who continued till 31st August, August, 2004. WPCRC 475 WITH WITH WPCRC 25 475 of 2013 OF 2018 REPORTABLE REPORTABLE It is on 1st September, September, 2004 that the new Managing Committee Committee took school. charge of the school. The school, upon upon getting the status of a High School, was accorded accorded six additional posts posts of Assistant Teacher. The Secretary of the School School ought to have informed informed the District Inspector of School of such vacancy, vacancy, and the District Inspector Inspector ought to have complied with the directions directions of this Hon’ble Court Court on 17th November, 2003 upon such vacancy having arisen or or new posts created. However, since since the petitioners had not served a copy of the order order on the Secretary of the the School or the School itself, the relevant documents documents of the petitioners had not been forwarded to the DI. Thus, DI could could not have known the purport purport of the order before filling up the six posts in the School Teachers. of Assistant Teachers. In spite of several several queries from the Court, the petitioners were were unable to disclose any evidence evidence of service of the order dated 17th November, November, 2003, on the Contemnors, Contemnors, either by way of letter or electronic means means or digital means on the Secretary Secretary of the School or on the District Inspector. Inspector. All that was disclosed isclosed was a letter on the advocate’s letterhead letterhead informing

#38. that an order had had been passed on 17th November, 2003 by the Court. Neither a copy copy of the order nor a copy of the Writ Petition Petition was ever served on them. them. Thus, the School Authorities (which term term I use WPCRC 475 WITH WITH WPCRC 25 475 of 2013 OF 2018 REPORTABLE REPORTABLE deliberately) nor nor the District Inspector of School were aware that of the directions contained contained in the order passed by the Hon’ble High High Court on 17th November, r, 2003.

#39. connected The connected issue and the reason why I deliberately deliberately used the phrase “School “School Authorities” instead of the Secretary of the the School, is that on 17th November, November, 2003, there was no Secretary functional functional in the school, which was being run by an Administrator till 31st August, August, 2004, as aforesaid. The The petitioner was unable to produce a single document document to prove that he had had served a copy of the order on the contemnors. contemnors. This, in spite of the fact fact that the contemnors had repeatedly, through his his affidavit of 2nd July, 2018 compliance 2018 by the District Inspector and by multiple compliance reports (14th July, July, 2023 and 3rd March, 2025), stated that he he had never been served with with a copy of the order.

#40. The other, rather interesting, issue emanates from sudden disappearance of of the majority of the petitioners as appearing petitioners petitioners in the Contempt Petition. Petition. The petitioners were initially six in number. number. The petitioners were were 1. Krishna Chandra Ghosh, 2. Sukumar Sarkar, Sarkar, 3. Dulal Ghosh, 4. Fasihur Fasihur Rahaman Chaudhuri, 5. Bodiur Rahaman, and and 6. Mita Rani Das.

#41. Fasihur Rahaman Rahaman Chaudhuri, in compliance of an order of 27th 27th April, 2012, (in some some other proceeding) had been appointed as an an Assistant Teacher However, school on 10th August, 2012. However, WPCRC 475 WITH WITH WPCRC 25 475 of 2013 OF 2018 REPORTABLE REPORTABLE said Fasihur joined joined on 26th December, 2013. An enquiry was made and it was found found that Fasihur was serving as a Para Teacher Teacher and an Assistant Teacher Teacher simultaneously in two schools and drawing salary salary from both. Sukumar Sarkar, Sarkar, had been functioning as the Secretary of the the School from 7th Decembe December, 2007 till 6th March, 2011. Being one one of the petitioners, had had knowledge of the order, in spite whereof, whereof, he had not sent any papers papers pertaining to the petitioners herein to the the District School. Inspector of School. Mita Rani Das was was also found to be working as an approved Para Para Teacher in a different school school from 2005 till date. The directions on the Secretary of the School would take effect effect only after service of the order order on him. Upon “receipt of the order” he would would send all relevant documents documents pertaining to the petitioners service “within two week”. The petitioner was Secretary. was unable to show service of the order on the Secretary. The explanations explanations given by the District Inspector of School cannot be ignored. The District District Inspector of School could have been said said to have violated the order order only if he was aware of the order and had had thereafter

#45. acted contrary to the directions contained therein. This w would have established his wilful and deliberate intent to disobey the order. order. In the present case, he he was not aware of the order, the responsibility esponsibility of service WPCRC 475 WITH WITH WPCRC 25 475 of 2013 OF 2018

#49. REPORTABLE REPORTABLE of which had been been cast on the petitioners’ advocate by this Court. Court. The non-compliance, compliance, if at all, cannot be attributed to a wilful or or deliberate contemnors. intent of the contemnors. After a lapse of of about 8 years, the present Contempt Petition was was served on the contemnors. contemnors. Clearly, the petitioners have themselves themselves not been diligent in following following the directions of this Court. Post-2005 in view view of the promulgation of the School Service Act Act 2005, the regularization for for the petitioners’ appointment as an Assistant Assistant Teacher could not have have been considered, as the same would have have been impermissible in compliance in law. Clearly, the Court cannot insist upon compliance with such directions directions at a belated stage, after the passage of almost almost 22 years from the date of of passing of the order. The explanation explanation given by the contemnors that all the sanctioned sanctioned posts created due to to upgradation of the concerned school were were filled up through the School School Service Commission during 2004 and 2005 2005 cannot be overlooked under under any circumstances. Even as late as April April 2023, the School and the District Inspector Inspector attempted to comply with the directions of the order of 17th November, 2003, 2003, in due deference. However, However, the regularization of the appointment appointment of the petitioners as Assistant Assistant Teachers of the School could not be done, done, as the WPCRC 475 WITH WITH WPCRC 25 475 of 2013 OF 2018

#52. REPORTABLE REPORTABLE very basis of the the appointment of the petitioners was found to be be irregular and contrary to the established procedure for appointment. The diligence of of the petitioner is found to be lacking, as both both Contempt Petitions were dismissed and Rules issued therein were discharged discharged by orders dated 27th 27th March, 2015 and 6th July, 2018. The Court Court had come to a specific finding finding that the petitioners in both Contempt Petitions Petitions had not pursued their their rights and remedies as stipulated in the order order of 17th November, 2003, 2003, with diligence, and hence, an intent of deliberate deliberate and willful violation violation by the contemnors could not have been alleged. alleged. It is true that the orders discharging the Rules and dismissal of Contempt Contempt Petitions were recalled by by the order of 5th April, 2023. It cannot be overlooked, overlooked, nor lose sight of the the fact, that the petitioners had taken a chance chance with the Contempt Petition, Petition, and had not been diligent in pursuing their rights, and had indeed taken taken a chance before this Hon’ble Court. It is an accepted accepted proposition of law that a Contempt Petition is between the Court and the contemnors, with little or no role for the petitioners (persons alleging alleging the act of contempt). An act of commission commission and or omission, to be construed as as an act of contempt, has to to be committed with an intention not to obey obey, that is to say, to deliberately deliberately and wilfully violate the directions of of the order of the Court. Unless Unless it is shown that the order has been deliberately deliberately and wilfully violated violated by the contemnors, it cannot be construed to be be an act of WPCRC 475 WITH WITH WPCRC 25 475 of 2013 OF 2018 REPORTABLE REPORTABLE contempt of an an order of the Court. In the present case, there there are no such acts of omission omission or commission by the alleged contemnors contemnors, which can be said to be be either deliberate or wilful. In fact, there are are no acts of commission or omission which can be construed to be in violation violation of the directions of the the order dated 17th November, 20223. It is clear clear that the order directed the regularization of the petitioner’s appointment appointment as an Assistant Teacher Teacher of the said school, subject to availability availability of vacant sanctioned post posts. It has been shown from the records that there there were no such sanctioned sanctioned posts available for the petitioner’s appointment appointment to be regularised.

#53. There is an additional additional issue in so far as WPCRC 25 of of 2018 is concerned, that that of limitation. The order with the direction direction to the contemnors had had been made on 17th November, 2003 and and the Writ Petition was disposed disposed of. In view of the disposed of Writ Petition, Petition, on 11th May 2012, 2012, the petitioner in WPCRC 25 of 2018 was add added as a petitioner. This This person (Uttam Kumar Sarkar) initiating CPAN CPAN 1842 of 2013 culminated culminated in WPCRC 25 of 2018 upon rule being issued. issued. The said act of commission commission or omission could not be taken by Uttam Uttam Kumar Sarkar from the the date of his impleadment as a petitioner in the the disposed of Writ Petition. Petition. The acts of commission or omission, if, at all, all, had to be construed from the date when the directions were made in the order of 17th November, 2003. Thus, second petition petition by Uttam, CPAN 1842 of 2013 resulting in WPCRC 25 of of 2018 is completely barred barred by the law of limitation. WPCRC 475 WITH WITH WPCRC 25 475 of 2013 OF 2018

#57. REPORTABLE REPORTABLE In the circumstances, circumstances, one cannot lose sight of the fact that contempt contempt is an execution of of sorts, which is why Section 20 of the Contempt Contempt of Courts Act, 1971 stipulates stipulates a strict timeline for initiation of proceedings proceedings. Such timeline is limited limited to a period of one year from the date on on which the contempt is alleged alleged to have been committed. In the present case, case, such act would be deemed to have been committed on 1st January, January, 2004, being the expiry of the period of six weeks weeks (two weeks for the Secretary to give the papers plus four weeks for the DI to regularise the the appointment) from the date of passing of the order, i.e., 17th November, November, 2003. The Contempt Petition having been been filed in 2013 belies the the statutory bar that the act of contempt has to be brought to the notice of the the Court within a period of one year from the the date of commission or omission of such act. The Contempt Petition was was filed in

#2013. In the circumstances circumstances aforesaid, I find the explanation given by the the District Inspector of School School to be acceptable and dismiss the Contempt Contempt Petition as against him. I find the explanations given by the District Inspector Inspector of acceptable. School to be acceptable. The rule issued issued against the District Inspector is discharged, discharged, and the Contempt Petition Petition stands dismissed. WPCRC 475 WITH WITH WPCRC 25 475 of 2013 OF 2018 REPORTABLE REPORTABLE Consequently, all all pending applications, if any, stand disposed of of in terms of this order. Insofar as the second second contemnor is concerned, the Secretary of of Bedrabad High School, it is clear that till 2004, the said person was not the the Secretary of the school, since since it was being run by an Administrator till August, August, 2004. In fact, one of the petitioners, Sukumar Sarkar, had been Secretary Secretary from 2007 to 2011, who who ought to have complied with the directions in in the order of 17th November, November, 2003. Thus, the responsibility of the Secretary Secretary (at a later stage since since there was no such Secretary at the material time) time) cannot be foisted on the the present incumbent, who had also not been been served a copy of the order order and in any event, since the action is barred barred under Section 20 of the the Contempt of Courts Act, 1971. Thus, the rule against the respondent no. 2 is also discharged discharged and the Contempt Petition Petition is dismissed. Consequently, all all pending applications, if any, stand disposed of of in terms

#61. of this order.

#62. There shall, however, however, be no order as to costs. WPCRC 475 WITH WITH WPCRC 25 475 of 2013 OF 2018

#63. Urgent Photostat Photostat certified copy of this judgment, if applied for, for, shall be REPORTABLE REPORTABLE granted the parties expeditiously as possible, possible, upon compliance with with all formalities. (Reetobroto Kumar Kumar Mitra, J.)