The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 1401 of 2014 In the matter of an application under Articles 226 & 227 of the Constitution of India. ……………… Pabitra M. Mishra …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioner : Mr. S.K. Das (Advocate) For Opp. Parties :
Legal Reasoning
Mr. A. Tripathy, Addl. Govt. Advocate Mr. S.K. Garnayak, Advocate (Opp. Party Nos. 4 to 6) PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 20.11.2024 & Date of Judgment: 20.11.2024 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. 2. Heard Mr. S.K. Das, learned counsel appearing for the Petitioner, Mr. A. Tripathy, learned Addl. Govt. Advocate appearing for the State and Mr. S.K. Garnayak, learned counsel appearing for Opp. Party Nos. 4 to 6. // 2 // 3. Petitioner has filed the present writ petition inter alia challenging order dtd.17.03.2012 so passed by Opp. Party No. 2 under Annexure- 11. Vide the said order appeal preferred by the Petitioner against the order of termination so issued by the Managing Committee of the School was rejected. 4. Learned counsel for the Petitioner contended that Petitioner was appointed as a Peon in Tapaneswar Ucha Bidyapitha vide order of appointment issued on 28.10.1986 under Annexure-1. It is contended that while so continuing Petitioner when was terminated from his services without any notice, Petitioner approached the then Inspector of Schools, Bhadrak challenging such action of the Managing Committee. When the claim of the Petitioner was rejected by the then Inspector of Schools, Bhadrak and representation made against such action of the Inspector before the Director, Secondary Education was kept pending, Petitioner approached this Court by filing OJC No. 2199
Decision
of 1995. The said writ petition was disposed of on 13.04.1995 with an observation that if Petitioner prefers an appeal before Opp. Party No. 2 within a period of two weeks, then such appeal be heard and disposed of in accordance with law. 4.1. Pursuant to the said order Petitioner preferred an appeal also. But Opp. Party No. 2 when rejected the appeal, Petitioner again approached this Court by filing OJC No. 8720 of 1996. This Court vide order dtd.03.10.2007 while setting aside the order so passed by Opp. Party No. 2, remanded the same for fresh disposal in accordance with law. 4.2. Learned counsel for the Petitioner contended that Petitioner was so terminated without issuance of any prior notice and accordingly Page 2 of 9 // 3 // Opp. Party No. 2 should have allowed the appeal, but by relying on the show-causes alleged to have been issued to the Petitioner through under certificate of posting, Opp. Party No. 2 held the same as sufficient against the Petitioner and accordingly rejected the appeal vide the impugned order dtd.17.03.2012 under Annexure-11. 4.3. It is contended that show-causes issued by way of under certificate of posting cannot be treated as sufficiency of service of notice in view of the decision of the Hon’ble Apex Court in the case of State of State of Punjab Vs. Amar Singh Harika, reported in AIR 1966 SCC 1313. It is contended that this Court placing reliance on the said decision of the Hon’ble Apex Court also held that receipt relating to under certificate of posting is not a proof of service of notice. View of the Hon’ble Apex Court in Para 11 of the Judgment and the view of this Court in Para 6 of Judgment in the case of Governing Body of Kaptipada College, Kaptipada Vs. State of Odisha & Ors. reported in 2012 (II) ILR-CUT-78 is quoted hereunder:- “6. In order to substantiate the first ground taken by the learned counsel for the petitioner, attention of the Court was drawn to several documents filed along with the writ petition which are of no relevance except the Xerox copy of the Under Certificate of Posting and the order of termination in Annexure-9. In Annexure-9, the Secretary of the Governing Body had intimated the Opposite Party No.3 that his services had been terminated as per the decision and resolution of the Governing Body with effect from 19.4.1999. The stand of the Governing Body is that the said letter of termination had been sent Under Certificate of Posting on the very same day. The Xerox copy of the receipt showing posting of a letter Under Certificate of Posting is attached to the said letter in Annexure-9. Though from Annexure-9, the intimation, it appears that an order of termination had been passed as per resolution of the Governing Body with effect from 19.4.1999, there is no proof of the statement made by the petitioner that the very same letter had been sent to the Opposite Party No.3 Under Certificate of Posting. It is, therefore, difficult in absence of any documentary evidence to accept the contention of the learned counsel for the petitioner that the order of termination in Annexure-9 had in fact been sent Under Certificate of Posting to the Opposite Party No.3. There is Page 3 of 9 // 4 // no other document produced on behalf of the petitioner to show that the order of termination in Annexure-9 had been served on Opposite Party No.3. On the other hand, the stand of the Opposite Party No.3 is that he came to know about such termination only from the counter affidavit filed by the Governing Body in the G.I.A. Case. Undisputedly there is no presumption under law about service of notice if the same is sent Under Certificate of Posting unlike a registered post. The Hon'ble Supreme Court in the case of State of Punjab v. Amar Singh Harika, reported in AIR 1966 Supreme Court 1313 while deciding a similar issue held that an order of dismissal passed by an appropriate authority and kept in the file without communicating it to the officer concerned or otherwise publishing it, cannot take effect as from the date on which it was actually passed by the said authority. Such an order can only be effective after it is communicated to the officer concerned or otherwise published. Paragraph-11 of the said judgment dealing with the issue is quoted below: "(11) The first question which has been raised before us by Mr. Bishan Narain is that though the respondent came to know about the order of his dismissal for the first time on the 28th May 1951, the said order must be deemed to have taken effect as from the 3rd June 1949 when it was actually passed. The High Court has rejected this contention; but Mr. Bishan Narain contends that the view taken by the High Court is erroneous in law. We are not impressed by Mr. Bishan Narain's argument. It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. It may be that in some cases, the authority may feel that the ends of justice would be met by demoting the officer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that the mere passing of the order of dismissal has the effect of the officer concerned, various terminating complications may arise. If before receiving the order of dismissal, the officer has exercised his power and jurisdiction to take decisions or do acts within his authority and power, would those acts and decisions be rendered invalid after it is known that an order of dismissal had already been passed against him? Would the officer concerned be entitled to his salary for the period between the date when the order was passed and the date when it is communicated to him? These and other complications would inevitably arise if it is held that the order of dismissal takes effect as soon as it is passed, though it may be communicated to the the services of Page 4 of 9 // 5 // officer concerned several days thereafter. It is true that in the present case, the respondent had been suspended during the material period; but that does not change the position that if the officer concerned is not suspended during the period of enquiry complications of the kind already indicated would definitely arise. We are therefore, reluctant to hold that an order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it will take effect as from the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. When a public officer is removed from service, his successor would have to take charge of the said office; and except in cases where the officer concerned has already been suspended, difficulties would arise if it is held that an officer who is actually working and holding charge of his office, can be said to be effectively removed from his office by the mere passing of an order by the appropriate authority. In our opinion, therefore, the High Court was plainly right in holding that the order of dismissal passed against the respondent on the 3rd June 1949 could not be said to have taken effect until the respondent came to know about it on the 28th May 1951." The learned counsel for the petitioner has not shown any decision contrary to the above view taken by the Hon'ble Supreme Court. Admittedly there is nothing on record to show that the said order of termination in Annexure-9 had been served on Opposite Party No.3 either in person or through publication. The receipt relating to Under Certificate of Posting is not a proof of service of the order of termination on Opposite Party No.3. We are, therefore, of the view that the Tribunal was justified in holding that the order of termination passed by the Secretary in pursuance of the decision taken by the Governing Body dated 19.4.1999 had not taken effect till the same was disclosed in the counter affidavit filed by the Governing Body in the G.I.A. case pending before the Tribunal. Once it is held that the order of termination had not taken effect with effect from 19.4.1999, it can only be said to have taken effect from the date it was disclosed in the counter affidavit filed by the Governing Body in the G.I.A. Case. There cannot be any dispute that Section 10- A of the Orissa Education Act becomes applicable, the institution having come into the grant-in-aid fold with effect from 1.1.2004. This finding answers the first two grounds taken by the learned counsel for the petitioner.” 4.4. It is contended that since all the show-causes issued to the Petitioner on 02.02.1989, 23.01.1991 and 17.05.1991 were issued by under certificate of posting, in view of the decision as cited (supra) the Page 5 of 9 // 6 // same cannot be treated as sufficient notice on the Petitioner prior to the order of termination issued on 21.09.1991 under Annexure-10. It is also contended that the order of termination was also sent by under certificate of posting. It is accordingly contended that since Petitioner was never terminated by following due procedure of law, Opp. Party No. 2 by holding the notices issued by the Managing Committee as sufficient against the Petitioner, could not have rejected the appeal vide impugned order dtd.17.03.2012 under Annexure-11. 4.5. It is further contended that because of the illegal order of termination, Petitioner was deprived to get the benefit of approval of his services and consequential release of Grant-in-aid in his favour. It is also contended that the School became eligible to receive Grant-in- aid under GIA Order, 1994. It is further contended that because of the pendency of the writ petition, person who was engaged in place of the Petitioner i.e. Opp. Party No. 6 also did not get the benefit of approval. 5. Mr. A. Tripathy, learned Addl. Govt. Advocate on the other hand contended that the dispute is inter se in between the Petitioner and the Managing Committee vis-a-vis Opp. Party No. 6. It is however not disputed that Petitioner since while continuing as a Peon remained on unauthorized absent w.e.f.10.08.1988, the Managing Committee after issuing show-causes on 02.02.1989, 23.01.1991 and 17.05.1991 terminated the Petitioner from his services on 21.09.1991 under Annexure-10. 6. Mr. S.K. Garnayak, learned counsel appearing for Opp. Party Nos. 4 to 6 on the other hand contended that since the Petitioner while continuing as a Peon in the School remained on unauthorized absent Page 6 of 9 // 7 // w.e.f.10.08.1988, Petitioner was issued with the show-cause by the Managing Committee on 02.02.1989, 23.01.1991 and 17.05.1991. Since in spite of service of the notices, Petitioner never submitted his reply nor appeared before the Managing Committee, the Managing Committee resolved to terminate the Petitioner from his services and the said order of termination was issued on 21.09.1991 under Annexure-10. 6.1. It is contended that Opp. Party No. 2 placing reliance on the decision of the Privy Council reported in 1918 Privy Council 528 (Harihar Banerjee Vs. Ramesh Roy) held the sufficiency of notice issued on the Petitioner through under certificate of posting. It is contended that by holding the notices issued against the Petitioner as sufficient placing reliance on the decision in the case of Harihar Banerjee, Opp. Party No. 2 has rightly rejected the appeal which requires no interference. It is however contended that during pendency of the writ petition Opp. Party No. 6 has retired from his services on attaining the age of superannuation and because of the pendency of this writ petition, services of Opp. Party No. 6 was never approved. 7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner was appointed as a Peon in the School of Opp. Party No. 4 vide letter of appointment issued on 28.10.1986 under Annexure-1. Petitioner while so continuing when was not allowed to discharge his duty, he moved Opp. Party Nos. 2 & 3 under Annexure-2 & 3 with a prayer to allow him to continue in services. 7.1. It is found that Petitioner’s claim for reinstatement when was not considered, he approached this Court by filing OJC No. 2199 of 1995. Page 7 of 9 // 8 // This Court vide order dtd.13.04.1995 permitted the Petitioner to approach Opp. Party No. 2, since allegation was made that Petitioner has been prevented from discharging his duty. Accordingly, Petitioner approached Opp. Party No. 2 by filing an appeal. In the said appeal, Opp. Party No. 4 on its appearance produced the letter of termination issued against the Petitioner on 21.09.1991 under Annexure-10. In support of the termination of the Petitioner, the Managing Committee relied on the notices issued by him 02.02.1989, 23.01.1991 and 17.05.1991 by under certificate of posting. Opp. Party No. 2 relying on the decision in the case of Harihar Banerjee, held the service of such notices on the Petitioner as sufficient and while holding the same held the termination of the Petitioner as justified as the Petitioner remained on unauthorized absent w.e.f.10.08.1988. 7.2. This Court placing reliance on the decision reported in 1966 SC 1313 so followed in 2012 (II) ILR-CUT-78, is of the view that notices served through under certificate of posting is no notice in the eye of law. In view of the same, this Court is of the view that since notices have not been properly served on the Petitioner prior to terminating him vide order dtd.21.09.1991, rejection of the Petitioner’s appeal vide the impugned order dtd.17.03.2012 is not sustainable in the eye of law. This Court accordingly is inclined to quash order dtd.17.03.2012 so issued by Opp. Party No. 2 under Annexure-11 and so also the order of termination issued by Opp. Party No. 4 on 21.09.1991 under Annexure-10. While quashing both the orders and since in the meantime Opp. Party No. 6 has already attained the age of superannuation and no one is appointed in place of Page 8 of 9 // 9 // the Petitioner, this Court permits the Petitioner to make an appropriate application before Opp. Party No. 4 for his reinstatement. 7.3. It is observed that if any such application is moved before Opp. Party No. 4 seeking reinstatement of the Petitioner, appropriate order will be passed by Opp. Party No. 4 within a period of one (1) month from the date of receipt of such application. 8. The writ petition is accordingly disposed of. (BIRAJA PRASANNA SATAPATHY) Judge Orissa High Court, Cuttack Dated the 20th November, 2024/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Nov-2024 17:41:33 Page 9 of 9