The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 17555 of 2013 & W.P.(C) No. 19469 of 2013 Applications under Articles 226 & 227 of Constitution of India. AFR W.P.(C) No. 17555 of 2013 --------------- Governing Body of Uchhaba Charan Gajiani Chandi College, Bartana - Versus - …… Petitioner State of Odisha and Ors. ...…. Opp. Parties W.P.(C) No. 19469 of 2013 Chittaranjan Das …… Petitioner - Versus - State of Odisha and Ors. ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : Mr. Gautam Misra, Sr. Advocate with M/s. Dinesh Kumar Patra & A. Dash, Advocates. [in W.P.(C) No.17555 of 2013] Mr. P.K. Rath, Sr. Advocate with M/s. R.N. Parija, A.K. Rout, S.K. Pattnaik, A. Behera & P.K. Sahoo, Advocates [in W.P.(C) No.19469 of 2013] For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate M/s. Prasanta Kumar Satapathy, Page 1 of 18 P. Panda, S. Pati & B.K. Das, Advocates [for O.P. No.3 in both the writ applications] Mr. Gautam Misra, Sr. Advocate With M/s. Dinesh Kumar Patra & A. Dash, Advocates. [for O.P. No.4- Governing Body i W.P.(C) No. 19469 of 2013] _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 22nd November, 2024 SASHIKANTA MISHRA, J. Both these writ applications are directed against the same order passed by the Director, Higher Education, Odisha involving identical facts. Both were therefore, heard together
Decision
and are being disposed of by this common judgment. 2. W.P.(C) No.17555 of 2013 has been filed by Governing Body of Uchhaba Charan Gajiani Chandi College, Bartana, while W.P.(C) No. 19469 of 2013 has been filed by one Chittaranjan Das, who is working as Librarian in the aforementioned College in the vacancy caused by termination of Kedar Nath Padhi (opposite party No.3 in both the writ applications). Page 2 of 18 3. The facts of the cases, common to both the writ applications are as follows. 3.1 Uchhaba Charan Gajiani Chandi College, Bartana was at the relevant time a non-government unaided educational institution. 3.2 One Kedar Nath Padhi was appointed as Librarian in the College in the year 1993. According to the petitioner- Governing Body, he remained unauthorizedly absent from 06.05.2001 for which a show cause notice was issued on 05.11.2004 by it. He did not submit any explanation to the said show cause notice. As such, by resolution dated 28.11.2004 the Governing Body decided to terminate his service and communicated the same vide letter dated 30.11.2004. Since the letter of termination was not received by opposite party No.3, the same was published in the local newspaper on 25.12.2004. After gap of four years, the opposite party No.3 filed an appeal before the Director seeking to challenge the termination letter dated 30.11.2004. By order dated 01.07.2013, the Director set aside the order of termination on the ground that principles of Page 3 of 18 natural justice have been violated and directed the Governing Body to reinstate the opposite party No.3 in service. 4. The Governing Body has challenged the said order of the Director on the ground that the appeal was entertained despite unexplained delay of four years, which is contrary to the circular dated 27.03.1983 issued by the Government in erstwhile Education Department. Secondly, the materials on record would clearly demonstrate that the opposite party No.3 was not interested to serve the institution as, despite receiving the show cause notices he did not respond nor even after being aware of the termination of his service by way of newspaper publication. It is evident that he filed the appeal only when the College became an aided institution. It is further stated that in the meantime, for smooth management of the College another person was appointed in the post, who is continuing as such. 5. Counter affidavit has been filed by the private opposite party No.3 challenging the maintainability of the writ application on the ground that no authorisation of the Governing Body has been filed to show that filing of the writ application was authorised. Moreover, the Sub-Collector, Page 4 of 18 Balasore being the President of the Governing Body, in his letter dated 24.07.2013 has already directed the Principal-cum- Secretary of the College to implement the impugned order. On merits, it is stated that the opposite party No.3 received the letters dated 05.11.2004 on 12.11.2004 issued by one Jagabandhu Jena claiming to be the secretary of the Governing Body without intimating the specific date of absence or the detailed statement of charges. Jagabandhu Jena was not the Secretary of the Governing Body. He was approved as the Secretary as per order dated 30.04.2007 of the Prescribed Authority. Therefore, any action taken by him before 30.04.2007 is illegal. The opposite party No.3 received the show cause notice dated 05.11.2004 on 12.11.2004 wherein 15 days’ time was issued, which expired on 27.11.2004. So, in case the management wanted to take further action, it should have been issued seven days clear notice to its members to hold a meeting of the Governing Body so as to pass a resolution to terminate the services of opposite party No.3. That apart, no enquiry was conducted against the opposite party No.3, which is in violation of the principles of natural justice. As regards delay, it is stated Page 5 of 18 that the Director condoned the same vide order dated 25.07.2011. 6. Petitioner-Chittaranjan Das in his writ application being W.P.(C) No. 19469 of 2013 has also challenged the orders of the Director by stating more or less the same facts as pleaded in the writ application preferred by the Governing Body. In addition, it is stated that he was appointed as Asst. Librarian on 18.12.1996. After termination of the service of opposite party No.3, who was serving as Librarian, the Governing Body by resolution dated 21.02.2005 decided to promote the present petitioner to the said vacant post as the work of the College was affected. Since then, the petitioner has been working in the said College. Further, the appeal was filed by the opposite party No.3 without impleading the petitioner, who is a necessary party. 7. Counter has been filed by opposite party No.3 inter alia stating that appointment of the petitioner is illegal and ab- initio void being de hors the rules and yardstick. His initial appointment was against a non-existing post. Further, his claim of being promoted as Librarian is also not tenable. As per Page 6 of 18 the yardstick, only one post of Librarian is admissible to +2 College and as such, there was no scope for the Governing Body to appoint any other person as Asst. Librarian after appointment of the petitioner as Librarian. It is further stated that the petitioner has manufactured the documents of the college in his favor. The petitioner has filed a rejoinder inter alia stating that the opposite party No.3 abandoned his service w.e.f. 06.05.2001 by remaining unauthorizedly absent till his service was terminated. 8. Heard Mr. G. Mishra, learned Senior Counsel with Mr. D.K. Patra, learned counsel appearing for the Governing Body- petitioner in W.P.(C) No. 17555 of 2013 and opposite party No.4 in W.P.(C) No. 16469 of 203; Mr. Prafulla Kumar Rath with Mr. R.N. Parija, learned counsel appearing for the petitioner in W.P.(C) No. 19469 of 2013; Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State and Mr. Prasanta Kumar Satapathy, learned counsel appearing for opposite party No.3 in both the writ applications. Page 7 of 18 9. Learned Senior Counsel, Mr. Mishra would argue that the Director committed manifest error in entertaining the appeal after four years as such delay was never explained. Secondly, on the own admission of opposite party No.3 he never responded to the show cause notice issued to him regarding his unauthorised absence and also did not take any action to challenge the order of termination, which he refused for which the same had to be published in the local newspaper. Mr. Mishra further argues that if the facts are considered objectively it would clearly show that the petitioner had abandoned his service but sprung into action only when the College came into GIA fold in November, 2008. 10. Mr. P.K. Rath, learned Senior Counsel would also make similar arguments as regards delay in filing of the appeal and further that his client, having been promoted against the termination vacancy ought to have been heard by the Director as his right was likely to be vitally affected. It is further submitted that even otherwise, if the Director was of the view that appropriate opportunity was not granted, then the matter should have been relegated to the same stage to be decided Page 8 of 18 afresh instead of straightway directing reinstatement of opposite party No.3 in service. 11. Mr. S.N. Pattnaik, learned Addl. Government Advocate would submit that since the Director was of the view that principle of natural justice was not followed inasmuch as no show cause notice was issued indicating the proposed termination of service, he set aside the order of termination and directed reinstatement of service. 12. Mr. P.K. Satapathy, learned counsel appearing for opposite party No.3 in both the cases would argue that no limitation is prescribed in the relevant circular and therefore, the plea of delay cannot be raised. Secondly, even if the opposite party No.3 did not respond to the show cause notice issued to him, it was incumbent upon the Governing Body to have issued another show cause notice indicating its proposal to terminate his services instead of straightway taking such decision. The Director, therefore, rightly set aside the order of termination. 13. After hearing learned counsel for the parties at length and on going through the materials on record including Page 9 of 18 the impugned order, the first question that falls for consideration is, whether the appeal filed by the opposite party no.3 was grossly delayed. 14. It is not disputed that the institution in question at the relevant time was a private unaided institution. Instructions of the Government in letter No.13585 (2) EYS dated 27.03.1983 being relevant are quoted hereinbelow. "Letter No. 13585(2) EYS Dt. 27.03.1983 from Govt. of Orissa Education and Y.S. Department addressed to the D.P.I.(S) H, Orissa. Sub:- Service Protection to the employees of unaided recognized education institutions. I am directed to say that it has been brought to the notice of Government that in some private unaided educational institutions the service of the employees are being terminated arbitrarily without assigning sufficient reasons and following the principles of natural justice. Such employees are not entitled to get protection under the Orissa Education Act, 1969 and Rules made thereunder. The teachers of aided Educational Institutions only have the right of appeal before State Educational Tribunal under Sub-Section (3) of Section 10-A of the Odisha Education Act, 1969. Though the employees of unaided recognized private educational institutions do not have any statutory right of appeal illegal before any authority. Government feel that termination of service in unaided recognized private educational institution should be stopped. It has, therefore been decided by Govt. that if an employee of any unaided recognized private educational institution feels that this services have been terminated arbitrarily, he may file an appeal before the Director of Public Instruction, (HE)" Orissa in the case of employees of unaided recognized Private Colleges, Director of Public Instruction (s), Orissa in case of unaided recognized private high schools and concerned Circle Inspector of Page 10 of 18 Schools in case unaided recognized private M.E. Schools within a period of one month from the date of termination who will dispose of it finally. This matter may be brought to the notice of all concerned." Thus, under the aforementioned circular, the appeal was to be preferred within a period of one month from the date of termination before the Director. However, the above instruction was replaced by another circular bearing No15.12. 2000, which is quoted hereinbelow. “GOVERNMENT OF ORISSA DEPARTMENT OF SCHOOL AND MASS EDUCATION. ORDER Bhubaneswar, dated the 15th December, 2000 No. XIV. SHK 86/2000. 33918/SME Government have established three composite Regional Directorates at Bhubaneswar Berhampur and Sambalpur vide, resolution No.5856/HE. dt.29.1.97 to look after the matter relating to both Higher Education Department and School and Mass Education Department for streamlining the administration and expeditious disposal of various matters in the field of education. In the said Directorate, an officer of the school branch has been posted in the rank of Joint Director to look after the administration of the School Education in Orissa. In order to decentralise the power to of Director of 2. Secondary Education it has been decided that the Regional Joint Director (School Education) shall be the of the appellate termination/removal of employees of the Private unaided recognised High Schools and Upper Primary Schools passed by the concerned Managing Committee. The concerned Regional Joint Director shall after giving authority against order Page 11 of 18 a reasonable opportunity of being heard to the appellate and the concerned Management pass orders and the said order of appellate authority shall be final. 3. The Director, Secondary shall transfer all appeals except as stated below pending, before him to all concerned Regional Joint Directors, but he shall dispose of the appeals in respect of which Hon’ble High Court has passed orders directing him to dispose of notwithstanding this order. 4. This supersedes all previous G.O. on the subject.. BY ORDER OF THE GOVERNOR A.K Tripathy COMMISSIONER-CUM- SECRETARY TO GOVERNMENT.” 15. From a bare reading of the circular it is clear that the limitation prescribed in the 1983 circular is not available in the 2000 circular. Therefore, delay per se, cannot be a ground to reject an appeal but then, it is trite law that notwithstanding prescription of period of limitation a litigant is expected to act with promptitude as during his continued inaction valuable rights may have accrued to other parties. It is not as if only because no limitation is specifically prescribed that a litigant is free to act whenever he thinks fit. What has happened in the instant case is that the service of opposite party no.3 was terminated on 28.11.2004, which was communicated to him on 30.11.2004. He having refused to receive the same, the order of Page 12 of 18 termination was published in the daily newspaper on 25.12.2004. So, he must be deemed to have had knowledge of the termination of his services as early as on 25.12.2004. He chose to remain silent for a long period of nearly four years and filed the appeal on 12.01.2008. No reason has been cited to explain as to why the appeal was not preferred earlier or at least within a reasonable period of time from the day when the opposite party No.3 became aware of the termination of his service by the Management. It is to be noted that in the interregnum, Chhita Ranjan Das was appointed as Librarian in the vacant post, thereby acquiring a valuable right. Though it has been pleaded that the Director had condoned the delay, but such order has not been placed before this Court. This Court therefore, holds that the appeal preferred by the opposite party No.3 should not have been entertained on the ground of delay and laches. 16. As regards non-impletion of Chhita Ranjan Das as party to the appeal, as already stated, he was appointed/promoted to the post of Librarian after termination of opposite party No.3. It has been well settled that a person Page 13 of 18 appointed against a termination vacancy cannot under all circumstances be treated as a necessary party but then in case where the appellant himself is guilty of delay and laches and seeks to challenge the order against him long time after it was passed, the person so appointed in the vacancy would obviously be affected. In the circumstances obtaining in the present case, this Court is of the view that the Director ought to have impleaded Chhita Ranjan Das as a party to the appeal and granted him opportunity of hearing. 17. It has been argued that even assuming that the principles of natural justice were not followed, the Director could not have straightway directed reinstatement of service of the petitioner, rather the matter should have been relegated to the earlier stage to be decided afresh by the Management after granting opportunity of hearing to the delinquent opposite party No.3. In this regard, the judgment of the Supreme Court in the case of State of Uttar Pradesh and others v. Rajit Singh1 has been cited. There is no quarrel with the proposition as laid but then, the question is whether relegating the matter 1 (2022) 15 SCC 254 Page 14 of 18 to the Management to comply with the principles of natural justice would have materially affected the outcome of the case. If not then it would be an empty formality to remit the matter. The opposite party no. 3 has admitted to have received the show cause notice dated 05.11.2004 on 12.11.2004 but did not respond. A ground has been taken in the counter that the same having been issued by one Jagabandhu Jena claiming to be the Secretary of the Governing Body and not containing the details of the charges, was without jurisdiction and authority, for which he did not respond. This contention can be considered only to be rejected because if such was the case, then the opposite party No.3 would have intimated so to the Management or the authority, who according to him was competent and had jurisdiction to deal with the matter. An employee can scarcely afford to remain silent to a show cause notice issued by the management on the above ground. Had the opposite party No.3 come up with such a case at the relevant time it would have been accepted but it is too late in the day to harp upon such a ground. Page 15 of 18 18. Even otherwise, it has not been demonstrated as to how the outcome would have been different had the opposite party No.3 been allowed to submit his show cause. In fact, the reason why he remained absent from 2001 onwards has not been whispered in the least. As already stated, from the sequence of facts narrated above, this Court is of the considered view that relegating the matter for the purpose of granting opportunity to the opposite party No.3 would have been an empty formality. 19. It is to be noted that the petitioner remained absent without intimation to the Management since 2001. As already stated, no reason was cited at any point of time by opposite party No.3 to explain such long absence either before the Director or before this Court. In the circumstances, it would not be unreasonable to infer that he had no intention of continuing in the service as otherwise he would have definitely come forward to protect it by taking appropriate steps at the relevant time. On the facts of the case as narrated above, this Court finds force in the submission that it was a case of abandonment of service. The following observation of the Page 16 of 18 Supreme Court in the case of Shahoodul Haque vs. The Registrar, Co-operative Societies, Bihar & Anr2 are noteworthy. “The undenied and undeniable fact that the appellant had actually abandoned his post or duty for an exceedingly long period, without sufficient ground for his absence, is so glaring that giving him further opportunity to disprove what he practically admits, could serve no useful purpose. It could not benefit him or make any difference to the order which could be and has been passed against him. It would prolong his agony. On the view we have adopted on the facts of this case, it is not necessary to consider the further question whether any notice for termination of service was necessary or duly given on the assumption that he was not punished. We do not think that there is any question involved in this case which could justify an interference by us......" 20. As to the belated move of the appellant to prefer appeal against the order of termination, this Court takes note of the fact that the College came into the grant-in-aid fold by being entitled to receive block grant from November, 2008. The intention of the opposite party No.3 in preferring appeal belatedly is therefore, tell-tale. 21. Thus, from a conspectus of the analysis of facts and the law and the contentions raised, this Court is of the view 2 AIR 1974 SC 1896 Page 17 of 18 that the Director not having considered these vital aspects, the impugned order warrants interference. 5. In the result, both the writ applications are allowed. The impugned order dated 01.07.2013 passed by the Director, Higher Education is hereby set aside. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 22nd November, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Nov-2024 12:09:10 Page 18 of 18