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Writ Court Cannot Impose Penalty Not Contemplated In Statute In Exercise Of Plenary Jurisdiction: Calcutta High Court

Aaratrika Bhaumik
12 May 2022 3:58 PM GMT
Calcutta high court, habeas corpus plea, West Bengal government, son, father, missing, correctional home, report, Justice Shampa Sarkar and Justice Bibhas Ranjan De, Justice R. K. Kapur and Justice Krishna Rao, Presidency Correctional Home, alipore jail,
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The Calcutta High Court on Wednesday has observed that a writ Court in exercise of its powers under Article 226 of the Constitution cannot impose a penalty which is not contemplated in the concerned statutory rules in exercise of its so called plenary jurisdiction.

A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta observed,

"..the writ court discharges his solemn duties to uphold the law and render justice in accordance with law and not to break or bend it. The penalty which is not contemplated in the said disciplinary Rule cannot be imposed in exercise of so-called plenary jurisdiction which has a different concept and cannot be assumed to show wide or even wider power to overreach the provision of law."

The Court further observed that a writ court cannot assume the jurisdiction of the disciplinary authority and proceed in violation of the statutory provisions by inflicting the penalties not contemplated in the statutory Rules.

The instant appeal had been filed against an order dated March 31, 2022 passed by a Single Judge wherein the appellant had been directed to neither discharge duties and functions as Assistant Headmistress of Kamala Vidyamandir High School for Girls (HS) nor sign any papers and documents including the attendance register in such capacity in the said school. The impugned order had further directed the West Bengal Central School Service Commission to post the appellant as Assistant Teacher in any other school with pay protection.

The Division Bench noted that though the power of the writ court under Article 226 of the Constitution is wide or even wider than the power enjoined by the courts in England in prerogative writs yet there has been a self-imposed restraint and should be exercised within the contour of law. It was further noted that ordinarily the writ court does not enjoin the legislative powers but the primary object is to uphold the law by interpreting the legislations under the well-known canon of interpretations of law.

Opining that a writ court must exercise restrain while exercising such powers, the Bench remarked,

"Such power cannot be exercised to bend or break the law but to uphold the same inconsonance therewith..The writ court while exercising its power in pursuit of justice should be careful and cautious in not causing injustice to the other while rendering justice. The balance is required to be maintained as the same is never intended to be one way traffic."

It was further underscored that the moment the Court finds that there is a statutory Rule in place which requires a thing to be done in a particular manner, the Court while rendering justice should not ignore such statutory provisions and pass an order to create a wreck in a statutory machination having a larger impact of injustice on the other.

The Court further observed that the penalty imposed in the instant case in relegating the appellant to the post of assistant teacher is not contemplated under Rule 9 of the West Bengal Board of Secondary Education (appointment, confirmation, conduct and discipline of teachers and non-teaching staff) Rules, 2018 and, therefore, such order cannot be legally sustainable.

Accordingly, the impugned order was set aside and the concerned competent authority was ordered to transfer the appellant from a school where she is posted to any other school.

"Since the appellant has already joined the school where she has been transferred and is discharging the function as such she may be directed to revert back to her original school within two weeks from date. It goes without saying that the appellant was not at fault when the order of transfer was issued and, therefore, all the benefits which she received at the transferred post shall not be taken back nor shall be recovered at any point of time", the Court ordered further.

Case Title: Sanghamitra Bhattacharya v. Sudeshna Kar & Ors

Case Citation: 2022 Live Law (Cal) 167

Click Here To Read/Download Order


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