The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 2734 of 2014 Tankadhara Padhan … Petitioner Mr. D.K. Panda, Advocate -versus- Director, Higher Education, Orissa, Bhubaneswar and another … Opposite Parties
Legal Reasoning
before this Court in the year 2010 in W.P.(C) No. 2539
Arguments
Mr. D. Mohapatra, ASC Mr. A. Mishra, Advocate (for O.P. No.2) CORAM: JUSTICE G. SATAPATHY ORDER(ORAL) 15.11.2023 Order No. 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. This is a Writ at the instance of the petitioner under Article 226 and 227 of the Constitution of India seeking relief inter alia to quash the impugned order passed by O.P. No.1 under Annexure-5. 3. The petitioner in this Writ has averred the following at paragraph-8: “8. That, it is worthwhile to mention here that the petitioner submitted the appeal before the opp. party No. 1 by hand and the opposite party No. 1 marked it to the concerned section and told him that it will be intimated later. It is further submitted that the petitioner approached the opp. party No. 1 time and again for disposal of his appeal and as he was residing in the Page 1 of 5 interior village of Boudh District, he would not meet the Director every time at Bhubaneswar and when no steps was taken by the opp. party No. 1 for disposal of his appeal by opp. party No. 1 finding no other alternative, the petitioner filed a writ application bearing W.P.(C) No. 2539/2010. 4. A perusal of the record would go to indicate that the petitioner has annexed the impugned order to the Writ under Annexure-5 which reads as under: Sri The Peon, petitioner Panchayat Tankadhar Pradhan, College, Palasagara being aggrieved by the order of termination of his services had approached the Hon’ble High Court of Odisha in WP(C) No.2539/2000 in which the Hon’ble High Court vide Order dated 16.02.2010 directed as follows: this writ petition "We dispose of directing O.P.No.1 (D.H.E., Odisha) to dispose of the appeal, if the same is still pending by a reasoned order within a period of three months from the date of communication of this order. Sri Pradhan filed an appeal dated 24.12.97 before the Director, Higher Education, Odisha which was heard on different dates and finally disposed of on 22.6.2013 in the presence of respective parties. the Principal It was alleged by the Appellant that he was prevented by from discharging duties in the college since 01. 12.97. As against the Principal submitted that as per the available records the appellant was found to be absent in the college. On verification of records it was found that the appellant had never filed any this Page 2 of 5 appeal against the action of the Principal before the Director, Higher Education, Odisha in 1997 or thereafter. However, he filed a writ petition in the year 2010. Hence, it is evident that he had not raised any objection to the action of the Principal till 2010. His absence in the college was voluntary and he had willfully abandoned the service. Hence, his appeal is dismissed being devoid of any merit. 5. It is also found from the averment of the Writ that the petitioner was appointed as a Peon w.e.f. 05.04.1989 which was approved by the Governing Body, but he was prevented from discharging his duty as a Peon, which according to the petitioner is automatic termination from service and he filed a Writ
Decision
of 2010, which was disposed of by a Division Bench of this Court on 16.02.2010 and the operative part of such order as quoted in the writ reads as under : The petitioner was working as a Peon in Panchayat College, Palasagora, in the district of Phulbani. He was prevented from discharging his duties, which amounts to deemed termination. It is submitted that in consonance with the circular issued by the Government, the petitioner had filed an the Director, Higher appeal Education, Orissa (opposite party No. 1) on 24.12.1997, vide Annexure 4. The grievance of the petitioner in this Writ Petition is that the said appeal has not been disposed of till date. before After hearing learned counsel for the petitioner and learned counsel for the State, we dispose of this Writ Petition directing opposite party No. 1 to dispose of the Page 3 of 5 appeal, if the same is still pending, by a reasoned order within a period of three months from the date of communication of this order. 6. After having heard the learned counsel for the petitioner and learned ASC and on going through the above order passed in the Writ in W.P.(C) No. 2539 of 2010 as quoted in the writ and the impugned order herein as well as the averment taken in paragraph-8 of the present Writ, it appears that although the petitioner claims to have filed an appeal, but that has not been substantiated by disclosing its number. Besides, the authority concerned vide Annexure-5 has observed that the petitioner has not filed any appeal and in absence of the appeal, nothing remains to be adjudicated. When the petitioner claims to have filed an appeal in the year 1997, why he remained silent till filing of the writ in 2010. It is also not understood as to how he had approached the authority during the period from 1997 to 2010 and the silence of the petitioner for aforesaid period speaks in volume against his unnatural conduct since a person cannot sit idle for such a long period without approaching the forum especially when he had lost the job. Even otherwise, the petitioner could not able to substantiate as to why he did not obtain a receipt of filing of appeal, although he had retained a copy of appeal memo which has been annexed in this writ vide Annexure-4 which is typed written copy without any endorsement of authority about receipt of Page 4 of 5 the appeal. In the circumstance, the rival claim about presentation/non-presentation of appeal by the petitioner and Ops. in the circumstance appears to be a disputed question of fact which cannot be adjudicated in a writ. 7. Additionally, it is claimed by the petitioner that he was prevented by O.P. No.2 on 01.12.1997 to sign the attendance register, but he did not make any objection to it and he filed an appeal against such action of OP No.2 to OP No.1 on 24.12.1997, but the same having not been established in view of the order passed under Annexure-5, this Court does not find any merit in the claim of the petitioner in this Wirt. 8. In the result, the Writ Application stands dismissed on contest, but in the circumstance, there is no order as to costs. S.Sasmal (G. Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Reason: Authentication Location: High Court of Orissa Date: 16-Nov-2023 11:03:43 Page 5 of 5