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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.2361 of 2025 In the matter of an application under Articles 226 and 227 of the Constitution of India,1950 ……………… Governing Body, Balasore Law College, Balasore -versus- …. Petitioner Director, Higher Education Deptt., Govt. of Odisha, BBSR & Others …. Opposite Parties For Petitioner : M/s. P. Rath, Sr. Adv. along with Mr. A. Khandelwala, Adv. and Mr. S. Tibrewal, Adv. For Opp. Parties : M/s. D. Lenka, Addl. Govt. Advocate Mr. Sameer Ku. Das, Adv. (for O.P. No.5) PRESENT: THE HONBLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------------- Date of Hearing: 29.01.2025 and Date of Judgment: 29.01.2025 ------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical ) Mode. 1 2. Heard Ms. P. Rath, learned Sr. Counsel along with Mr. Khandelwal, learned counsel appearing for the Petitioner, Mr. D. Lenka, learned Addl. Govt. Advocate and Mr. S.K. Das, learned counsel appearing on behalf of Opp. Party No.5. 3. Preliminary counter affidavit filed by Opp. Party No.5 in Court with service of copy on the learned Counsel for the Petitioner be kept on record. 4. The present Writ Petition has been filed inter alia challenging the final order passed on 27.12.2024 under Annexure-41 by Opp. Party No.2. Vide the said order, order of termination passed against Opp. Party No.5 on 08.02.2023 by the Petitioner was set aside and the Governing body /Petitioner was directed to allow Opp. Party No.5 to rejoin his former post. 5. Learned Sr. Counsel appearing for the Petitioner contended that because of large-scale irregularities committed by Opp. Party No.5, the Governing Body of the College decided to place Opp. Party No.5 under suspension in its proceeding dt.30.08.2022 and accordingly Opp. Party No.5 was placed under suspension vide order dt.01.09.2022 under Annexure-2 series. Not only that, in the proceeding dt.30.08.2022 under 2 Annexure-2 series, a decision was taken to constitute an interim Committee of three (3) senior members of the
Legal Reasoning
Governing body, namely; Mr. Madhusudan Das, Mr. Nikunja Bihari Das and Mr. Satya Charan Mallick to cause an inquiry with regard to the corruption charges made against Opp. Party No.5. 5.1.It is contended that pursuant to the decision taken by the Governing Body in its proceeding dt.30.08,2022 under Annexure-2 series, Opp. Party No.5 was issued with a show- cause initially on 19.09.2022 with various charges by the Committee so formed. Opp. Party No.5 submitted the reply to the same on 24.09.2022 under Annexure-3 series. 5.2. It is contended that subsequently, another show-cause was issued to Opp. Party No.5 with further allegations on 01.10.2022 and Opp. Party NO.5 also submitted his reply to the same on 10.10.2022 under Annexure-4 series. Not only that, a further show-cause was issued with other allegations on 17.10.2022 and Opp. Party No.5 also submitted his reply to the same on 24.10.2022 under Annexure-5 series. Thereafter, another show-cause was issued to Opp. Party No.5 on 3 12.11.2022 and Opp. Party No.5 also submitted his reply to the same on 22.11.2022 vide Annexure-6 series. 5.3. It is contended that basing on the allegation issued against Opp. Party No.5 in the show-causes dt.19.09.2022, 01.10.2022,17.10.2022 and 12.11.2022 and the reply submitted by Opp. Party No.5 to such allegations vide Annexure-3 series to Annexure-6 series, the Committee formed in terms of the Governing Body resolution dt.30.08.2022 under Annexure-5, submitted a report on 27.12.2022 vide Annexure-8 series. The Committee held Opp. Party No.5 guilty of the allegations and recommended to take stringent action against him by the Petitioner. Basing on such report submitted by the Committee on 27.12.2022 under Annexure-8 series, the Governing body in its proceeding dt.29.12.2022 under Annexure-8 series permitted the Principal of the College to terminate Opp. Party No.5 from his services. Accordingly vide letter dt.08.02.2023 enclosed under Annexure-8 series so issued by the Principal-in-charge of the College, Opp. Party No.5 was terminated from his services. 4 5.4. It is contended that challenging such order of termination issued on 08.02.2023, Opp. Party No.5 approached this Court in W.P.(C ) No.4814 of 2023. But this Court on the ground of
Decision
alternative remedy while disposing the Writ Petition granted liberty to the Opp. Party No.5 to move the Director, Higher Education against such order of termination. Even though orders passed by the Director Higher Education-Opp. Party No.2 during pendency of the matter was challenged before this Court in different Writ Petitions, but ultimately this Court while disposing W.P.(C) No.15164 of 2024 and vide order dt.10.07.2024, directed Opp. Party No.2 to decide the issue on merit. 5.5. Learned Sr. Counsel appearing for the Petitioner vehemently contended that without proper appreciation of the materials placed by the Petitioner-Governing Body and the illegalities committed by the Opp. Party No.5 so reflected in the show-causes issued under Annexure-3 series to Annexure-6 series, Opp. Party No.2 while allowing the appeal vide the impugned order dt.27.12.2024 under Annexure-41, quashed the order of termination so issued on 08.02.2023 and directed 5 the Governing Body to re-instate Opp. Party No.5 in his earlier position forthwith. 5.6. Learned Sr. Counsel appearing on behalf of the Petitioner contended that since serious allegations have been made against Opp. Party No.5, as found from the show-causes issued under Annexure-3 series to Annexure-6 series, on the face of such allegations made against Opp. Party No.5, Opp. Party No.2 could not have set aside the order of termination by allowing re-instatement of Opp. Party No.5 vide the impugned order under Annexure-41. It is accordingly contended that the impugned order passed by Opp. Party No.2 is not sustainable in the eye of law and requires interference of this Court. 6. Mr. Sameer. Ku. Das, learned counsel appearing for Opp. Party No.5 on the other hand while filing the preliminary counter affidavit, raised the question of maintainability of the Writ Petition before this Court inter alia contending that since the instant Writ Petition has been filed by the Governing Body, Balasore Law College, represented by one Nagendra Kumar Padhi as Principal-in-Charge, the Writ Petition is not maintainable. It is contended that Nagendra Kumar Padhi was 6 never appointed as Principal-in-Charge nor he is competent to hold the post. 6.1. It is also contended that the resolution passed on 30.08.2022 under Annexure-5 series and so also the resolution dt.29.12.2022 so passed by the Governing Body under Annexure-8 series are not resolution in the eye of law as in the said proceeding of the Governing Body, one Madhusudan Das was allowed to participate even though he is not a member of the Governing Body so approved by the Regional Director of Education vide his communication dt.11.04.2022 under Annexure-A/5. 6.2. Placing reliance on the communication issued under Annexure-A/5, learned Counsel appearing for Opp. Party No.5 contended that since Madhusudan Das is not a member of the Governing Body and he participated in the proceeding dt.30.08.2022 as well as 29.12.2022, decision taken by the Governing Body against Opp. Party No.5 in the said proceeding is a nullity in the eye of law. It is accordingly contended that since the basis on which Opp. Party No.5 was placed under suspension with formation of the Committee to inquire the 7 allegations against Opp. Party No.5 in the proceeding dt.30.08.2022 and the decision taken to terminate the services of the Opp. Party No.5 basing on the inquiry report submitted by the Committee on 27.12.2022, in the proceeding dt.29.12.2022, was attended by Shri Madhusudan Das, who is not a member of the Governing body, any decision taken in the said proceeding is not legal and justified and no action could have been taken in terms of the said decision of the Governing body. 6.3. Bereft of the aforesaid stand with regard to maintainability of the Writ Petition, learned counsel appearing on behalf of Opp. Party No.5 contended that since admittedly Opp. Party No.5 is an employee of Balasore Law College which is an unaided recognised institution, there being no prescribed rules to deal with the issue involved, Governing Body being the employer of Opp.Party No.5, the Governing Body is only competent to take Disciplinary action against the Petitioner by following Principle of natural justice. 6.4. It is contended that since Madhusudan Das was never a member of the Governing Body and he participated in both the 8 proceedings dt.30.08.2022 under Annexure-5 series as well as the proceeding dt.29.12.2022 under Annexure-8 series and in terms of the proceeding dt.30.08.2022, he was allowed to remain as a member of the Committee to inquire into the charges against the Opp. Party No.5, the decision taken by the Governing Body in both the proceedings is illegal and not binding. In support of the same learned counsel for the petitioner relied on the following decisions:- 1. Governing Body of Harishpur Baladev Mahabidyalaya Vs. State of Orissa & Others, (1998) 85 CUT LT 34 2. Sudhakar Behera Vs. State of Odisa & Others, W.P.(C) Nos.31597 & 31558 of 2011. In the case of Governing Body of Harishpur Baldev Mahabidyalaya, this Court in paragraph 9 of the said judgment has held as follows: xxx xxx xxx 9. On behalf of the petitioner, two original registers have been produced before us — one is the Proceeding Book containing the resolutions of the Governing Body and the other is the Attendance Register of the Governing Body of the college. From the attendance register, we find that there were as many as 21 persons present in the meeting held on 9 14-9-1996 and, therefore, some persons who were not members of the Governing Body were present in the meeting. In the Proceeding Book, on the same day a resolution was passed accepting some persons as office bearers and members of the Governing Body. As some outsiders were present in the meeting, it cannot be said to be the resolution of the Governing Body in terms of Rule 25 of the Rules. Therefore, we have to ignore, the said resolution. xxx xxx xxx In the case of Sudhakar Behera, this Court in paragraph 4 of the said judgment has held as follows: xxx xxx xxx 4. Sri B. Routray, the learned Senior Counsel appearing for the Petitioner in W.P.(C ) No.31597 of 2011 and Shri P.K. Rath, the learned counsel appearing for the Petitioner in W.P.(C ) No.31558 of 2011 submitted that the O.P. No.4 did not have seven years of teaching experience as an Assistant Teacher after obtaining B.Ed. and therefore, he was not qualified to be appointed as Headmaster of the School. However, the then Managing Committee had appointed him as the Headmaster in-Charge of the said School. While continuing as Headmaster in- Charge, certain allegations were received against the said O.P. No.4 for which he was offered to give reply. But the said O.P. NO.4 having remained silent, the Managing Committee decided to revert him to the post of Assistant Teacher. According to the learned counsel appearing for the Petitioners in both the writ Petitions, O.P. NO.4 had been appointed as Headmaster in-charge and therefore, asking him to work as Assistant Techer does not amount to reversion. Moreover even if it is taken as a reversion, the O.P. No.4 was given an opportunity to show cause but he did not avail it. It was further contended by the learned counsel for the Petitioners in both the writ petitions that all the documents were placed before the Director in support of the above submission but into consideration. they were not taken 10 It was further contended by the learned counsel for the Petitioners that so far as the order of termination is concerned, notices were also issued to O.P. NO.4 but he did not choose to file any reply and on allegation of unauthorized absence and other allegations, a decision was taken by the Managing Committee to terminate his services. Therefore, the finding of the Director that O.P No.4. Merely because two other staff members were present in the meeting does not necessarily invalidate the resolution passed by the Managing Committee on the said date. It was also contended that the decision on which reliance has been placed by the Director in this regard is distinguishable on facts and no law was laid down in the said decision to the effect that if an outsider is remain present in the meeting of the Managing Committee, any resolution passed by the Managing Committee shall be treated as invalid. In order to substantiate the above submission, the learned counsel appearing for both the Petitioners drew attention of the Court to several annexures attached to the writ petitions, counter affidavits and rejoinders. It was also contended by the learned counsel for the Petitioners that Sudhakar Behera, the Petitioner in W.P.(C ) No.31597 of 2011 had been appointed in place of O.P. NO.4 after his termination the meantime his appointment as and Headmaster in-charge has been approved. Therefore, he was a necessary party and in his absence, no order could be passed prejudicial to his interest. in xxx xxx xxx 6.5. It is also contended that since Opp. Party No.5 is an employee of a recognised unaided institution, it is the Governing Body who should have initiated the proceeding against Opp. Party No.5 and by allowing Opp. Party No.5 to participate in the said proceeding, the same should have been finalised in accordance with law. But in the instant case, in 11 terms of the proceeding dt.30.08.2022, the Governing Body formed a Committee of three (3) persons by including the aforesaid Madhusudan Das. The Committee without any authority from the Governing Body, raised various allegations against Opp. Party No.5 with issuance of four (4) show causes on 19.09.2022, 01.10.2022, 17.10.2022 & 12.11.2022 under Annexure-3 series to Annexure-6 series. 6.6. It is contended that there is no such provision to issue four show-causes with different allegations on different dates and all those show-causes were also issued by the Committee with Shri Madhusudan Das as a member. It is also contended that all those allegations were made without due authority of the Governing Body. It is accordingly contended that not only the formation of the Committee with Madhusudan Das as a member is illegal but also the action of the said Committee in issuing four show-causes at different point of time with different allegations. 6.7. It is also contended that even though Opp. Party No.5 as an obedient employee submitted his reply to such show- causes, but without proper appreciation of such replies and 12 without giving due opportunity of hearing to Opp. Party No.5, the Committee submitted the inquiry report on 27.12.2022 under Annexure-8 series. Not only that, without providing a copy of the inquiry report and thereby permitting Opp. Party No.5 to submit his representation against such report, basing on the finding of the Inquiry Report, the Governing Body in its proceeding dt.29.12.2022 under Annexure-8 series resolved to terminate the services of the Opp. Party No.5. Basing on such decision of the Governing Body and the permission accorded, Principal of the College terminated the services of Opp. Party No.5 vide order dt.08.02.2023, which was the subject matter of challenge before Opp. Party No.2. In support of the aforesaid submission, learned counsel for Opposite Party No.5 relied on a decision of the Hon’ble Apex Court in the case of Union of India V. Mohd. Ramzan Khan, AIR 1991 SC 471. Hon’ble Apex Court in Para-18 of the said judgment has held as follows: to the disciplinary authority at 18. We make it clear that wherever there has been an Inquiry Officer and he has furnished a the report conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he 13 so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter. 6.8. It is contended that since Principle of natural justice was never followed and no proceeding was ever initiated by the Governing Body being the employer of Opp. Party No.5, basing on the show-causes issued by the Committee illegally constituted and the report submitted by such Committee on 27.12.2022, no decision could have been taken to terminate Opp. Party No.5 from his services in the proceeding dt.29.12.2022. It is accordingly contended that since Principle of natural justice was never followed prior to terminating Opp. Party No.5 from his services, the same has been rightly interfered with by Opp. Party No.2 and it requires no interference. However, it is fairly contended that Opp. Party No.5 is ready to face any proceeding, if it is initiated by the Governing Body with service of definite charges. 7. To the submissions made by the learned Counsel for Opp. Party No.5, learned Sr. Counsel appearing for the Petitioner contended that if Opp. Party No.5 is ready and willing to face the proceeding with regard to the illegalities and irregularities committed by him, this Court may permits the Petitioner to do 14 so but with a direction to the Petitioner to participate in the proceeding. 8. Mr. D. Lenka, learned Addl. Govt. Advocate on the other hand contended that since the dispute is inter se in between the Petitioner and Opp. Party No.5, this Court basing on the available materials may pass appropriate order. 9. Having heard learned counsel for the parties and considering the submission made and materials placed before this Court, this Court take up the issue with regard to maintainability of the Writ Petition as a preliminary issue. 9.1. This Court finds that vide letter dt.01.07.2023, one Sarbeswar Sahu was appointed as Principal-In-Charge of the College in question. But the said Sarbeswar Sahu when expressed his inability to continue as Principal In-charge, the Governing Body in its proceeding dt.28.09.2024 under Annexure-34 series resolved to appoint the Dean of the Institution as Principal In-charge permanently. In terms of such decision taken by the Governing Body in its proceeding dt.28.09.2024 under Annexure-34 series, one Nagendra Kumar Padhi vide communication dt.09.10.2024 of Governing 15 Body was appointed as Principal In-charge of the College in question till appointment of a regular Principal. In view of such materials available in the case record, it is the view of this Court that the Writ Petition at the instance of the Petitioner represented by Nagendra Kumari Padhi as the Principal In- charge of the College is maintainable and the issue goes against Opp. Party No.5. 9.2. However, with regard to the termination of Opp. Party No.5 so made vide letter dt.08.02.2023 which was the subject matter of challenge before Opp. Party No.2, this Court finds that basing on the decision taken by the Governing Body in its proceeding dt.30.08.2022, Opp. Party No.5 was placed under suspension vide order dt.01.09.2022 under Annexure-2 series. Basing on the said proceeding, the Committee constituting three (3) members with one Madhusudan Das as member, issued different show-causes to Opp. Party No.5 under Annexure-3 series to Annexure-6 series by making various allegations. 9.3. It is found that even though Opp. Party No.5 submitted his replies to all such show-causes issued under Annexure-3 16 series to Annexure-6 series, a report was submitted by the Committee on 27.12.2022 under Annexure-8 series holding O.P. No.5 as guilty of the allegations. As found, basing on the finding of the Committee in its report dt.27.12.2022, the Governing Body in its proceeding dt.29.12.2022 under Annexure-8 series resolved to terminate the services of Opp. Party No.5 which was carried out by the Principal of the College with issuance of the order of termination dt.08.02.2023. 9.4. It is the view of this Court that since Opp. Party No.5 is an employee of Balasore Law College, which is a recognised unaided college, it is the Governing Body of the College who is the employer of Opp. Party No.5. So, it is the Governing Body of the Balaosre Law College who is competent to take Disciplinary action against Opp. Party No.5. However, in the case in hand, the Governing Body in terms of Resolution dt.30.08.2022 under Annexure-5 series constituted the Committee with one Madhusudan Das as a member to inquire into the charges against Opp. Party No.5 and basing on the said decision of the Governing Body, the Committee issued various show-causes to Opp. Party No.5 on different dates under Annexure-3 series to Annexure-6 series. Even though 17 Opp. Party No.5 submitted his replies to the show-causes issued under Annexures-3 to 6 series, but the Committee held Opp. Party No.5 guilty of the allegations in its report dt.27.12.2022. Basing on such report of the Committee and the decision taken by the Governing Body in its proceeding dt.29.12.2022 to terminate Opp. Party No.5 from his services, Opp. Party No.5 was issued with the order of termination on 08.02.2023. Placing reliance on the decision in the cases of Governing Body of Harishpur Baladev Mahabidyalaya & Sudhakar Behera, it is the view of this court that the proceeding dt.30.08.2022 and 29.12.2022 are not proceedings in the eye of law. 9.5. Since no such proceeding was ever initiated by the Governing Body being the employer of Opp. Party No.5 with framing of appropriate charges, basing on the show-causes issued by the Committee and relying on the report submitted by the Committee on 27.12.2022, Opp. Party No.5 could not have been terminated from his services vide the impugned letter dt.08.02.2023 basing on the Governing Body Resolution dt.29.12.2022 which was the issue before Opp. Party No.2 in appeal. Therefore, this court finds no illegality or irregularity 18 with the impugned order passed by the Director on dt.27.12.2024 under Annexure-41 and accordingly is not inclined to interfere with the same. 9.6. However, considering the dispute involved and the allegations made against Opp. Party No.5 in the show-causes issued under Annexure-3 series to Annexure-6 series and the contention of the learned Counsel for Opp. Party No.5 that he is ready to face any proceeding if initiated by the Governing Body and the submission of the learned Sr. Counsel for the Petitioner that the Petitioner is willing to initiate a proceeding in accordance with law, this Court while disposing the Writ Petition, is inclined to issue the following directions: (i) The Governing Body of the College is directed to pass a resolution in accordance with law without allowing Shri Madhusudan Das to participate in the proceeding with regard to initiation of a proceeding against Opp. Party No.5. (ii) Basing on such decision of the Governing Body to be taken, let a proceeding be initiated against the Opp. 19 Party No.5 with definite charges by way of a memorandum. (iii) Such a proceeding with passing of the resolution and service of the Memorandum on Opp. Party No.5 along with all the charges be made within a period of 4(four) weeks from the date of receipt of this order. Supporting documents in support of the charges be also provided to Opp. Party No.5 along with the Memorandum. (iv)Opp. Party No.5 on receipt of the charges along with all relevant documents will be allowed six (6) weeks time to file his written statement of defence. However, if Opp. Party No.5 finds that all supporting documents in support of the charges have not been provided to him along with the memorandum, he may make an application to get the same within a period of one(1) week from the date of receipt of the charges. On receipt of such application, if any, required documents be provided within a period of one week from the date of such application. 20 (v) After receipt of the written statement of defence from Opp. Party No.5, an Inquiry Officer be appointed by the Governing Body with passing of a Resolution and the said Inquiry be conducted in accordance with law with submission of the report within a period of eight (8) weeks from the date of appointment of the Enquiry Officer. (vi) After receipt of the Inquiry Report, the proceeding be finalised in accordance with law and by giving due opportunity of hearing to Opp. Party No.5 with supply of the inquiry report within a period of eight(8) weeks from the date of receipt of the enquiry report. (vii )Opp. Party No.5 is directed to cooperate with the inquiry as well as disposal of the proceeding within the time stipulated by this Court. (viii) Pending disposal of the proceeding as directed, Opp. Party No.5 be re-instated in his services with passing of an order within a period of one (1) week from the date of receipt of this order. 21 (ix) Sri Madhu Sudan Das, who is not a member of the Governing Body should not be involved in any of decision making process in terms of the present order. The Writ Petition accordingly stands disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 29th January, 2025/sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 04-Feb-2025 11:10:05 22