K.M.Yusuf, J. - (1.) The petitioners have moved the writ application challenging the C. D. F. Case No. 900 of 1990 or another case with the cause-title of Mahangilal Barmecha vs. M. Taneza ond another pending before the Calcutta District Forum as well as the notice to show cause under section 13 of the Consumer Protection Act, 1986. The petitioners prayed for quashing the plaint filed by Mr. Barmecha and the ad interim 'order dated 20th February, 1990 passed by the President of the Forum. The petitioners also prayed to remove the respondent No. 2 Mr. Shyam Sundar Gupta, from the office of the President of the Calcutta District Forum.
(2.) The case of the petitioners, in short, is that they are permanent teachers of Arya Vidya Mandir approved and recognised by the West Bengal Board of Secondary Education. The petitioner No. 1 is, a Headmistress and the petitioner No. 2 is the class-teacher of Class X-A. The School imparts general education above the primary education stage qualifying the students for admission to a Certificate, diploma or degree course instituted by the University or the Government. The petitioners were approved and appointed teachers in term of Rule 28 of the Management of Recognised Non-Government Institutions Rules, 1969 so far as the dismissal of any teacher of the School is concerned, the disciplinary proceeding to that effect would have to be taken by the Managing Committee with the approval of the Board. The main contention of the petitioners is that no authority other than Board can remove any teacher of any school except the Board. It is the further case of the petitioners that except imparting education to the students, the teacher never renders any service to any student or guardian. The rendering of service as contemplated and question of any deficiency as defined in the Consumer Protection Act has got no application. It is the further case of the petitioners that the guardian of a student in any educational institution cannot be termed as a consumer nor the student is a beneficiary of the consumer since in an educational institution education is imparted by teachers and the teachers' services are not hired. Miss. Ekta Barmecha, daughter of the respondent No. 3, was Class X-A student and she could not pass all the Terminal Examinations of Class VIII and Class IX including Annual Examination but on each occasion at the request of her mother she 'was promoted to higher class on the assurances that the guardians would take special care relating to her studies. In the pre-test examination held in September 1990 she again failed in several subjects while she was student in Class X-A and she also did miserably bad in selection test held from 5th to 15th December, 1990. From the table given in paragraph 8 it appears that she passed only in English and Work Education and failed in all the other Subjects. It is stated that when the selection test result was published 'on 19th December, 1990, the respondent No. 3 approached the petitioner No. 1 on the next day with a request to send her for Madhyamik Examination and when told that because of the poor result she could not be sent up, the respondent No. 3 expressed that in a different school by spending a substantial amount his daughter could have been sent for Madhyamik Examination. The petitioner No. 1 strongly protested and said that the education cannot be made a purchasable commodity. It is alleged that the respondent No. 3 told the petitioner No. 1 that he has got connection with high officials including the President of the Calcutta District Forum, the respondent No. 2, who is a close friend of his and at 2 p.m. on the said day the respondent No. 3 again came to meet the petitioner No. 1 with another person and introduced him as respondent No.2 and handed over his identity card and both requested the petitioner to send the girl for Madhyamik Examination but the petitioner No. 1 refused to comply. The identity card is enclosed as Annexure 'A' to the writ petition. On 22nd December, 1990 the (petitioners were, served with notice to show cause under section 13 of the Act of 1986 under orders of the Calcutta District Forum directing the petitioners to appear before the Calcutta District Forum on 27th December, 1990 in person or by a pleader to show cause. With the show cause notice there was an ad interim order dated 20th December, 1990 directing the petitioners to appear in person on 27th December, 1990 failing which penal action would follow. 2. The allegation contained in the plaint is that the petitioner No. 2 bears a grudge against the daughter of the respondent No. 3 since she did not take tuition from her and further that because of the utterances of petitioner No. 2 the daughter of respondent No. 3 became nervous and could not do well in mathematics in the pre-test examination and in spite of complaint treated the daughter of respondent No. 3 with aggressive indifference and threatened to doom the career of the girl. The petitioner prayed for the dismissal of petitioners Nos. 1 and 2 for educational misconduct, penalty and also for compensation of Rs. 50,000-00 for declaring the daughter failed in the examination and refusing to send her up for the Board's Examination. The petitioners denied all the allegations in the plaint and stated that because of the poor result of the examination she could not be sent up for Madhyamik Examination. It is further stated that the' case of the petitioners was not appearing after searching the file in C.D.F. Case No. 900 of 1990 as it was relating to a telephone case. It is stated that even warrants' of arrest were issued against the respondents and some police officials came to the School premises enquiring about the petitioners. The allegation has also been made against the respondent No. 2. One of the major points of the petitioners is that the Consumer Protection Act has no jurisdiction to enter into the domain of Education and cannot try any proceeding against any teacher on the allegation that a student had not been sent for Madhyamik Examination. Hence the writ petition.
(3.) The Calcutta District Forum, the State of West Bengal and the Union d India, respondents Nos. 1, 4 and 5, respectively, did not file any Affidavit-in-Opposition. Only Mr. Shyam Sundar Gupta, President of the Calcutta District Forum and Mr. Mahangi Lal Barmecha, respondents Nos. 2, and 3 filed Affidavits-in-Opposition. Mr. Gupta, the respondent No. 2, opened his Affidavit-in-Opposition by stating that he is a Member of the Calcutta District Forum and he is presently acting as the President of the said Forum. His defence inter alia, is as follows :- The writ petition is not maintainable as the order of the Calcutta District Forum is appealable ; the writ petition is not maintainable because the petitioners have impleaded the President of the Forum and challenged the proceeding of the Forum which could not be done in view of section 28 of the Act ; the writ petition is not maintainable because the writ petitioners have questioned the authority of the Forum ; and finally, the writ petition is not maintainable because the petitioners have prayed for the removal of the President and as removal comes under Rule 3(5) of the West Bengal Consumer Protection Rules, 1987 there is no allegation which comes under the said Rule. The statements relating to the authority of West Bengal Board of Secondary Education and Managing Committee of the Arya Vidya Mandir are not admitted by him. The respondent contended that educational institutions render service within the definition of "services" as provided under section 2(o) of the Consumer Protection Act, 1986 and the students and their guardians are the consumers within the meaning of sections 2 (d) (i) and (ii) of the said Act. The service of the teachers are indeed hired and as such they are rendering their services. The allegation contained in paragraph 7 of the writ petition is totally denied to the effect that this defendant did not go to meet the petitioners on 20th December, 1990 at 2 P.M. nor he knows the respondent No, 3 personally nor he handed over any identity card, the Xerox copy of which is annexed with the writ petition as marked "A". It is stated that on 20th December, 1990 he was holding court from 10.30 A.M. to 51 P.M. It is further contended that the Calcutta. District Forum is a court and the proceedings of the Forum are the judicial proceedings and the Members of the Forum are discharging the judicial duties under the Act referred to above. It is further stated that the application of respondent No. 3 was entertained on 20th December, 1990 when show cause notice was issued but the complaint of threat to respondent No. 3 compelled the defendant to issue warrant of arrest against the writ petitioners. The petitioners disobeyed the orders of the defendant as they did not prefer any appeal against the order but a writ petition was filed making false allegation against the defendant and attempted to scandalise the Forum and shake the confidence of the people in it. The false statements made by the petitioners have undermined the dignity of the Forum as well as of this defendant and it is an act of perjury and contempt of High Court and the Calcutta District Forum. It is stated in the Affidavit that the number of the petitioners' case is C.D.F. Case No. 920(A) of 1990 and not 900 of 1990. It is denied that any abuse of the authority and the position of the President of the Forum as alleged has been done by the respondent. It is stated in paragraph 25 of the Affidavit-in-Opposition wherein the defendant No. 2 stated that he can act alone when other Members are absent and can pass orders. The further defence is that section 27 of the Act cannot be struck down as unconstitutional, The entire allegation is malafide and the writ petition is liable to be set aside.;