The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.10386 of 2010 Managing Committee of Jagabalia Vocational High School, Puri …. Petitioner Mr. S.K. Mishra, Advocate State of Odisha and Others -versus- …. Opposite Parties Mr. B.P. Tripathy, AGA Mr. S.K. Rath, Advocate for O.P. No.4 Mr. B. Dash, Adv. for O.P. No.5 CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 18.03.2024 Order No. 14. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. S.K. Mishra, learned counsel for the petitioner, Mr. B.P. Tripathy, learned Addl. Govt. Advocate for the State, Mr. S.K. Rath, learned counsel
Legal Reasoning
appearing for private O.P. No.4 and Mr. B. Dash, learned counsel appearing for O.P. No.5. 3. This Writ Petition has been filed inter alia challenging the judgment dated 27.04.2010, so passed by the State Education Tribunal ( in short “Tribunal”) in Appeal Case No.43 of 2009. Vide the said order, the termination of private O.P. No.4 so made by the Managing Committee of the School on 24.10.2009 was held to be illegal, because of non-compliance of the provisions // 2 // contained under section 10-A of the Odisha Education Act (in short “Act”). While declaring the said order as illegal, the Tribunal quashed the same and directed the Managing Committee-Petitioner to reinstate private O.P. No.4 in his services. 3.1. Learned counsel for the Petitioner contended that though there is no dispute that private O.P. No.4 was appointed as a Night Watchman-cum-Sweeper w.e.f. 27.06.1994, but since after his appointment he remained on unauthorized absence for a pretty long period and did not reply to the show causes issued to him on different occasions, the Managing Committee having no alternative resolved in its proceeding dated 23.10.2009 to terminate private O.P. No.4 from his services. Basing on the resolution so passed on 23.10.2009, O.P. No.4 was terminated from his services vide office order dated 24.10.2009. 3.2. It is contended that though the order of termination was duly communicated to the private O.P. No.4 by the School but that was not accepted and the endorsement made by the serving peon also reflect the same. It is accordingly contended that since private O.P. No.4 after his appointment as against the post of Night Watchman- cum-Sweeper remained on unauthorized absence and did not respond to the show causes issued to him, the Managing Committee rightly terminated him from his services vide order dated 24.10.2009 and the same was Page 2 of 10 // 3 // never accepted by the private O.P. No.4. But without assailing the order of termination so issued on 24.10.2009, private O.P. No.4 by taking a plea that he was not being allowed to discharge his duty by the Managing Committee approached the Tribunal in Appeal Case No.43 of 2009. In absence of any challenge being made to the order of termination so issued on 24.10.2009, the Tribunal illegally held the said order as illegal and set aside the same. It is contended that since the order dated 24.10.2009 was never under challenge by private O.P. No.4 the same could not have been set aside by the Tribunal, while directing the Managing Committee- petitioner to reinstate private O.P. No.4 in his services. 3.3. With regard to non-compliance of the provisions contained under Section 10-A of the Odisha Education Act, though learned counsel for the petitioner contended that it is a mandatory requirement to be followed because the School in question was brought under the purview of grant-in-aid w.e.f. 01.01.2004, but since the order of termination was duly communicated to the Inspector of Schools after being passed, it amounts to compliance of the same. In support of his submission, learned counsel for the petitioner relied on a decision of this Court so passed in the case of Basanta Kumar Swain Vrs. Presiding Officer, State Education Tribunal and Others, 2008 (I) OLR-84. This Court in Para-6 and 7 of the said order has held as follows:- Page 3 of 10 // 4 // “6. According to the petitioner, whether or not he was the junior-most surplus staff, the requirement of law under Section 10-A(1)(a) of the Act was mandatory for obtaining approval of the order of termination and in support thereof, he relies on the case of Managing Committee, Orissa Police High School v. Rasebehari Patnaik and others; Vol.47 (1979) CLT 517. In that case, dealing with the termination of service of an ad hoc institution, their employee of an aided educational Lordships have held that: “7. Mr. Mohanty’s contention, that the provisions of Section 10-A of the Act apply only to teachers working within the approved cadre strength of the school, is without any substance. The provisions of Section 10-A apply to “a teacher of an aided educational institution”, and there is nothing in that section to restrict its application only to the teachers working within the cadre strength of that school.” There is no quarrel on that principle of law and the ratio laid down by this Court and therefore on verification of facts available in the case record and the findings recorded by the learned Education Tribunal, it is seen that Section 10-A has not been complied with. However, in that respect Mr. Pattnaik, learned counsel for the Governing Body states that a letter was addressed to the Director on the matter of termination of the services of the petitioner and that was replied from the Directorate with the endorsement that “you are free to take any decision on the surplus staff”, thus the requirement of law under Section 10-A(1)(a) has been complied with and therefore, finding of the Tribunal to that extent is neither incorrect nor illegal. Learned Addl. Government Advocate, however, does not agree to that submission and fairly states that the contention of the petitioner is correct about non-compliance of the mandatory provision. 7. On consideration of the aforesaid contention, we find that a communication made from the office of the Director in the manner indicated by the learned counsel for the Governing Body does not amount to approval or rejection of the proposal of the order of termination of service and, therefore, that does not qualify to the requirement of law under Section 10-A(1)(a) of the Act and that deficiency still exists on record. In absence of termination legally not approval, sustainable. However, facts and in circumstance in this case, inaction/improper action of the Director cannot be construed in favour of the petitioner when the Governing Body made proposal for approval of termination of the service of the petitioner. Therefore, equity demands that the Governing Body should be is the given the order of Page 4 of 10 // 5 // provided with another opportunity to make appropriate correspondence seeking approval if they wish to insist on the order of termination. It is upto the Director to take appropriate decision. To the above extent, we find the approach of the State Education Tribunal is contrary to the statutory provision in the Act and particularly Section 10-A and, therefore finding to that effect is illegal and set aside.” 3.4. Learned counsel for the petitioner accordingly
Decision
contended that the impugned judgment is not sustainable in the eye of law and requires interference of this Court. 4. Mr. S.K. Rath, learned counsel for the private O.P. No.4 on the other hand contended that private O.P. No.4 was appointed as against the post of Night Watchman- cum-Sweeper vide order of appointment issued on 27.06.1994 under Annexure-A/4 to the Counter. It is contended that private O.P. No.4 never remained on unauthorized absence from his duty and he was never show caused by the Managing Committee as indicated in various letters enclosed to the counter affidavit filed by the Petitioner-Managing Committee before the Tribunal. 4.1. It is also contended that in order to accommodate O.P. No.5, the Managing Committee prior to terminating the services of the petitioner engaged him vide Resolution dated 23.10.2009 and subsequently passed the order of termination on 24.10.2009. It is contended that the plea taken by the Managing Committee that the petitioner was show caused on different occasions for his remaining on unauthorized absence, was never issued to him nor the order of termination was ever issued to the petitioner. Since the order of termination was issued after allowing Page 5 of 10 // 6 // O.P. No.5 to be engaged in case of O.P. No.4, the said action of Managing Committee clearly shows the ill intention towards O.P. No.4. 4.2. It is also contended that since the petitioner was not allowed to discharge his duty because of the alleged action of the Managing Committee in accommodating O.P. No.5, the Tribunal rightly held the order of termination as illegal as it was issued without complying the statutory provisions contained under Section 10-A of the Odisha Education Act. Section 10-A of the Act reads as under:- “10-A. Service of teachers of aided institutions not to be terminated without approval- (1) The services of a teacher [and other members of the staff] of an aided Educational Institution shall not be terminated without obtaining the prior approval in writing of the- (a)[Director] in the case of a teacher [and other members of the staff] of a college; (b) Circle Inspector of Schools having jurisdiction, in the case of a teacher [and other members of the staff] or a school. (2) Every order passed by the [Director] or Circle Inspector, as the case may be, either according approval or refusing to accord approval under Sub-Section(1) shall be communicated to the parties concerned within three months to the reference. (3) Any person aggrieved by an order passed under Sub-section (1) may prefer an appeal to the Tribunal within one month from the date of receipt of this order.]” 4.3. It is accordingly contended that no illegality or irregularity has been committed by the Tribunal in allowing the appeal while setting aside the order of termination. Page 6 of 10 // 7 // 5. Mr. B. Dash, learned counsel appearing for O.P. No.5 on the other hand contended that even though no counter affidavit has been filed by the O.P. No.5, but O.P. No.5 was appointed as against the post of Peon-cum- Night Watcher on 04.11.1991. It is contended that since O.P. No.5 was appointed much ahead of the O.P. No.4, the allegation made by the O.P. No.4 that in order to accommodate O.P. No.5, the resolution was passed on 23.10.009 and O.P. No.4 was terminated vide order dated 24.10.2009 cannot be accepted. It is also contended that services of O.P. No.5 has since been approved and he is in receipt of the grant-in-aid as due and admissible to him. 6. Mr. B.P. Tripathy, learned Addl. Govt. Advocate on the other hand contended that since the order of termination terminating the services of the O.P. No.4 was passed on 24.10.2009 without complying the statutory provisions contained under section 10-A of the Act, the Tribunal has committed no illegality of irregularity in quashing the same while directing the Managing Committee to reinstate O.P. No.4. 6.1. To the submissions made by the learned counsel for the private O.P. No.5, learned counsel for the O.P. No.4 contended that even though the Tribunal allowed the matter vide judgment dated 27.04.2010, but in absence of any interim order protecting the interest of the Managing Committee, O.P. No.4 was never reinstated as directed. Page 7 of 10 // 8 // 6.2. As in absence of any interim order, O.P. No.4 was never reinstated, he filed Execution Case No.21 of 2019 seeking execution of the order in question. The same when was allowed by the Tribunal vide order dated 02.12.2023, the matter is assailed by the Managing Committee in the connected W.P.(C) No.3260 of 2024. However, it is contended that since O.P. No.4 was admittedly terminated after the school was brought under the purview of grant-in-aid, compliance of Section 10-A was a mandatory requirement and the decision cited by the learned counsel for the petitioner is not applicable to the facts of the present case. 7. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that O.P. No.4 was appointed as against the post of Night Watchman-cum-Sweeper vide order of appointment issued by the Managing Committee on 27.06.1994. Even though by alleging that O.P. No.4 is not being allowed to discharge his duty, he preferred the appeal before the Tribunal which was registered as Appeal Case No.43 of 2009, but Managing Committee on its appearance while filing its written statement filed various documents showing that O.P. No.4 remained on unauthorized absence w.e.f. 01.04.2007. Though various notices were issued to O.P. No.4 on 17.04.2007, 15.03.2008, 03.09.2008 and 16.04.2009, but nothing has been brought on record that all the show causes were issued to O.P. No.4 with due receipt of the same by the Page 8 of 10 // 9 // Petitioner. The Managing Committee thereafter in its proceeding dated 23.10.2009 resolved to terminate the services of O.P. No.4 on the ground of his long absence and accordingly issued the order of termination on 24.10.2009. But by the time such order of termination was issued, School in question had already been declared as an Aided Educational Institution within the meaning of Section-3(b) of the Odisha Education Act. 7.1. Since it is not disputed by the learned counsel for the Petitioner that by the time O.P. No.4 was terminated, the School was already declared as an Aided Educational Institution, it is the view of this Court that prior to taking such an extreme step of terminating the services of the O.P. No.4, prior permission of the Inspector was a clear requirement as provided U/s-10-A of the Act. Even though the order of termination was never assailed by the O.P. No.4 before the Tribunal, but since it was brought on record by the Managing Committee, while filing the counter and no document was produced by the Managing Committee showing receipt of the prior approval of the Inspector as provided under Section 10-A of the Act, this Court finds no illegality or irregularity with the judgment passed by the Tribunal on 27.04.2010 under Annexure-5. 7.2. The decision relied on by the learned counsel for the Petitioner in the case of Basant Kumar Swain as cited (supra) is quite distinguishable as in the said case the factum of termination was intimated to the Director, Page 9 of 10 // 10 // Secondary Education and on receipt of the same, the Managing Committee was intimated that the Managing Committee is free to take any decision on the surplus staff. Since no such document is available in the case record showing any communication made by the Inspector of Schools after receipt of the alleged termination of order dated 24.10.2009, the decision so cited by the learned counsel for the Petitioner that is not applicable to the facts of the present case. 7.3. In any view of the matter, since provisions contained under section 10-A of the Act has not been followed, which is a mandatory requirement, this Court finds no illegality or irregularity with the judgment so passed by the Tribunal on 27.04.2010 under Annexure-15. While upholding the said order, this Court dismiss the Writ Petition. This court directs the petitioner to comply with the order dated 27.04.2010 within a period of 4 (four) weeks from the date of receipt of this order. 8. The Writ Petition is accordingly dismissed. (Biraja Prasanna Satapathy) Judge Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication of order Location: High Court of Orissa, Cuttack Date: 21-Mar-2024 17:10:09 Page 10 of 10