Supreme Court of India
THE STATE OF WEST BENGAL & ORS.versusSOMDEB BANDYOPADHYAY & ORS.
- Citation
- 2009 INSC 60
- Decided
- 23 January 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The appeal is allowed; the High Court’s interim orders are impermissible as the appeal was non‑est, and the matter is remitted for consideration of the writ appeal’s maintainability.
Summary
The State of West Bengal appealed a Calcutta High Court judgment that had allowed a writ appeal filed by Somdeb Bandyopadhyay, who sought restoration as Superintendent and ex‑officio Secretary of a technical institute after an enquiry withdrew his administrative functions. The High Court, despite not condoning the delay in filing the writ appeal, passed a series of interim orders and directed payment of arrears, holding that the writ petition was not maintainable only on the ground of factual dispute. The Supreme Court held that passing interim orders when an appeal is non‑est because the delay was not condoned is impermissible, and that the High Court erred in its reasoning on both the factual‑controversy ground and the requirement of Government approval for the Secretary’s appointment. Consequently, the Supreme Court set aside the High Court’s order and remitted the matter for reconsideration of the writ appeal’s maintainability. The appeal was allowed without costs.
Issues considered
- Whether a High Court may pass interim orders in a writ appeal that is non‑est due to uncondoned delay.
- Whether a writ petition can be dismissed on the ground of factual controversy.
- Whether the appointment of the Secretary of a Governing Body requires Government approval, affecting the jurisdiction of the appointing authority.
Subjects
interim ordersdelay condonationwrit appealnon‑est appealfactual disputejurisdictionadministrative tribunalappointmentgovernment approval
Judgment
(2009) 1 S.C.R. 504
A THE STATE OF WEST BENGAL & ORS. ...
v.
SOMDEB BANDYOPADHYAY & ORS.
(Civil Appeal No. 397 of 2009)
JANUARY 23, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]
Interim order - Delay in filing appeal - Delay not
c condoned and appeal not entertained - Court passing series
of interim orders - Permissibility of - Held: Not permissible
as appeal was non est in eye of law without it being
entertained - Matter remitted.
On the basis of enquiry, administrative function was
D withdrawn from respondent 1 and another person was \.-
appointed. Respondent 1 filed OA before Administrative
Tribunal. Tribunal passed certain interim orders and
ultimately dismissed OA on the ground that Tribunal had
no jurisdiction.
E
Respondent No.1 then filed writ petition before High
Court seeking restoration of status as Member Secretary
of Governing body. Certain interim directions were given.
The appellant-State took stand that respondent 1 was not
F attending the office and was not signing the attendance
register. Single Judge of High Court held that since
factual dispute was involved, the writ petition was not
entertainable. Writ appeal was filed thereagainst. Certain
interim orders were passed therein. Writ appeal was
G allowed holding that since proceedings for absence were
not initiated, appellant was bound to pay lawful arrears
and there was no question of any prejudice involved.
In appeal to this Court, the appellant contended that
504
H
"I
STATE OF WEST BENGAL & ORS. v. SOMDEB 505
BANDYOPADHYAY & ORS.
._ without condoning the delay several interim orders were A
passed which was not permissible in law.
~'
Allowing the appeal and remitting the matte1· to High
Court, the Court
HELD: Even without condoning the delay ·and B
entertaining the writ app_eal the High Court pass.ed series
of interim orders. Such a course is impermissible as the
appeal was non-est in the eye of law without it being
entertained. Admittedly, the delay in preferring the writ
. appeal was not condoned at the time when the interim c
orders were passed. The High Court has committed
another error in holding th.at the writ peti~ion was
dismissed principally on the ground that it was the
..,, decision of the Governing Body as to who should be its
+
Secretary, although Government approval is necessary D
for appointment of the Secretary of the Governing Body
of the Institute. On the contrary the Single Judge
dismissed the writ petition principally on the ground that
factual controversy was involved. The Division Bench
did not discuss this aspect at all. Therefore, the order E
was clearly indefensible. [Para 6] [507-G~H; 508-A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 397
of 2009.
1r
From the Judgment and final Order dated 12.1012004 of F
the High Col!rt at Calcutta in M.A.T. No. 2124 of 2004.
Tara Chandra Sharma and Neelam Sharma for the
Appellant.
G
.R.K. Gupta, S.K. Gupt?, Arun Yadav, Shekhar Kumar and
.... Manoj K. Mishra, for the Respondent.
.
The Judgment of the Court was delivered by
OR. ARIJIT PASAYAT, J. 1. Heard learned counsel for H
506 SUPREME COURT REPORTS [2009] 1 S.C.R.
A both the parties. ...
2. Leave granted. .•
3. This appeal arises from the order passed by the
Division Bench of the Calcutta High Court allowing the writ
B appeal filed by the respondent No.1.
4. The facts, as presented by the appellants, are as follows:
... \-
Respondent No.1 was appointed to the post of
Superintendent of Chhoto Jagulia Junior Technical School,
c presently named as Industrial Training Centre Chhoto Jagulia,
by the Governing Body of the said Institute on 7.7.1993. He was
also given the responsibility of the Ex-officio Secretary of the
Governing Body.
....
D Due to some allegations against Respondent No.1, ...
namely, non-functioning of the administrative work as well the
non-attending the Institution an Enquiry Committee was set up.
On the basis of the decision of the Committee, administrative
function as a Member Secretary was withdrawn and another
E person was appointed.
A writ petition was filed by respondent No.1 taking the
stand that he should be allowed to continue as Superintendent.
His stand was that he was prevented from discharging duties
after 10.3.1997. Originally, the petition was filed before the
F
West Bengal Administrative Tribunal (in short 'the Tribunal') and
interim order was passed by the Tribunal directing that there
should be no interference with the functioning of the present
respondent No.1. Alleging that the interim order was not being
carried out contempt petition was filed. Tribunal disposed of the
G petition with certain directions. Subsequently, on 30.3.1998 the
Original Application was dismissed on the ground that Tribunal
had no jurisdiction.
On 11.5.1998, a writ petition was filed in the Calcutta High
H Court seeking restoration of status as Member Secretary of the
STATE OF WEST BENGAL & ORS. v. SOMDEB 507
BANDYOPADHYAY & ORS. [DR. ARIJIT PASAYAT, J.]
Governing Body. Certain interim directions were given. The A
present appellant took the stand that the respondent was not
attending the office and was not signing the attendance register.
A special leave petition was filed by respondent No.1 before
this Court which was withdrawn. The same was directed against
the order dated 22.9.2000 in CPAN 768/2000. The writ petition B
was dismissed by learned Single Judge on several counts. The
basic conclusion was that since factual dispute was involved
the writ petition was not to be entertained.
' A writ appeal was filed before the High Court and contempt
proceedings were also initiated. The Division Bench directed C
that lawful arrears have to be paid. Certain directions were
given making stringent observations against the officials. An
amount of Rs.7,33,567/- was paid. The High Court was
primarily of the view that since the proceedings for absence
were not initiated, the appellant should be bound to pay and D
there was no question of any prejudice involved. The writ appeal·
was allowed in the aforesaid terms.
5. Learned counsel for the appellant submitted that the writ
petition was dismissed on the ground that factual controversy E
is involved, i.e. whether the writ petitioner's stand that he was
prevented from attending duties or whether the appellant's stand
that he was not attending office is correct. It requires factual
adjudication and such question cannot be decided in the writ
petition. It is also pointed out that without condoning the delay F
several interim orders were passed which is not permissible
in law. Learned counsel for the respondent No.1, on the other
hand, submitted that voluminous documents are available to
show that the writ petitioner was prevented from attending their
duties and carrying on his functions.
G
6. It is to be noticed that even without condoning the delay
, and entertaining the writ appeal the High Court has passed
>series of interim orders. Such a course is impermissible as the
appeal was non-est in the eye of law without it being
H
508 SUPREME COURT REPORTS [2009) 1 S.C.R.
A entertained. Admittedly, the delay in preferring the writ appeal ·-11
was not condoned at the time when the interim orders were
passed. The High Court has committed another error in holding
that the writ petition was dismissed principally on the ground
that it was the decision of the Governing Body as to who should
B be its Secretary, although Government approval is necessary
for appointment of the Secretary of the Governing Body of the
Institute. On the contrary the learned Single Judge dismissed
the writ petition principally on the ground that factual controversy
is involved. The Division Bench has not discussed this aspect
C at all. Therefore, the order is clearly indefensible.
7. In the aforesaid background, we set aside the impugned
judgment of the High Court and remit the matter for its
consideration as to whether the writ appeal was to be
entertained in view of the conclusions of the learned Single
D Judge that factual controversies are involved and, therefore, the
writ petition was not maintainable.
8. The appeal is allowed without any order as to costs.
D.G. Appeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "interim orders"Sign in to search