The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.2117 of 2023 SonalikaMohanty ..... Petitioner Mr. G. Satpathy, Advocate -versus- ..... 1) State Of Odisha 2) Director Of Higher Education 3) Governing Body Of Kendrapara Autonomous College Opposite Parties Mr. H.M. Dhal, AGA Dr. J.K. Lenka, Advocate (Opp. Party No. 3) THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 16.05.2024 Order No. 12 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard Mr. G. Satpathy, learned counsel for the Petitioner, Mr. H.M. Dhal, learned Addl. Govt. advocate appearing for the State and Dr. J.K. Lenka, learned counsel appearing for Opp. Party No. 3. 3. Petitioner has filed the present writ petition inter alia with the following prayer:- to why “Under the above circumstances, it is therefore, humbly prayed that this Hon’ble Court may graciously be pleased to issue a Rule NISI in the nature writ of Mandamus &/or any other writ and/or writs, direction and/or directions, order and/or orders calling upon the opposite parties to show cause as the suspension order dtd.14.10.2022 vide Annexure-3 and order dtd.15.11.2022 vide Annexure-7 should not be quashed on the ground the same was passed without jurisdiction and without approval of the Competent Authority as per Rule and if the Opp. Parties failed to show cause &/or show insufficient or false cause make the said Rule NISI absolute; Page 1 of 6. And further the Hon’ble Court may direct the Opp. Parties to reinstate the petitioner with all consequential service with financial benefits. And/or pass any other appropriate order as appear just and proper in the fitness of the case. And allow this application with cost. And for which act of kindness the petitioner shall as in duty bound shall ever pray.” 4. It is contended that Petitioner while continuing as a Lecturer in Statistics, she was placed under suspension vide order dtd.15.10.2022 so issued by the Principal of the College pending approval of the Governing Body. Subsequently, vide another order issued on 15.11.2022, further order of suspension was issued by the Principal-cum-Secretary of the Governing Body of the College in question-Opp. Party No. 3 with due approval. 4.1. Learned counsel for the Petitioner contended that initial order of suspension passed on 15.10.2022 is a nullity in the eye of law as it was not issued with due permission and sanction of the Governing Body. But in order to overcome the same, a fresh order was issued on 15.11.2022 under Annexure-7 showing therein that with due permission of the Governing Body, Petitioner has been placed under suspension. 4.2. Learned counsel for the Petitioner contended that while issuing a fresh order of suspension on 15.11.2022 under Annexure-7, Petitioner was also served with the charges in a proceeding so initiated against her. It is however contended that prior to placing the Petitioner under suspension, since no prior permission of the Director was obtained as provided under Rule 21(2) of the Odisha Page 2 of 6. Education (Recruitment and Conditions of Service of Techers and Members of the Staff of Aided Educational Institutions) Rules, 1974, the order of suspension is not sustainable in the eye of law. Rule 21(2) of the Rules reads as follows:- “21(2) Without prejudice to sub-rule (1) but subject to the provisions of sub-rules (3) and (4) any of the penalties specified in rule 20 may be imposed- (a) in respect of a lower grade employee, by the Headmaster or the Principal as the case may be, and (b) in respect of any other employee, by the Managing Committee or the Governing Body, as the case may be. [Provided that in case of suspension of employees failing under Clauses (a) and (b) the prior approval of the Inspector in respect of any employee serving in a School and of the Director in relation to any other employee is obtained :] [Provided further that the Managing Committee or the Governing Body, as the case may be, may place an employee under suspension at the initiation of disciplinary proceedings for a period of thirty days, pending approval of Inspector or the Director, as the case may be.]” 4.3. It is accordingly contended that the order of suspension initially passed on 15.10.2022 under Annexure-5 and subsequent order passed on 15.11.2022 under Annexure-7 are liable for inference of this Court. 5. Dr. J.K. Lenka, learned counsel appearing for Opp. Party No. 3 on the other hand made his submission basing on the stand taken in the counter affidavit so filed by him. It is contended that because of serious allegations made against the Petitioner, she was placed under suspension initially by the Principal of the College vide order dt.15.10.2022 under Annexure-5 pending approval of the Governing Page 3 of 6. Body. But, subsequently the Governing Body authorized the Principal to issue a fresh order of suspension, which was accordingly issued on 15.11.2022 under Annexure-7. It is also contended that as provided under the Proviso to Rule 21(2) of the 1974 Rules, an employee can be placed under suspension pending approval by the Director for a period of 30 days. But it is contended that since Petitioner is not a regular employee, and appointed as against the post of Lecturer in Statistics on contractual basis vide order dt.29.01.2009 under Annexure-2, no permission as such was required to be obtained. 5.1. Learned counsel appearing for Opp. Party No. 3 further contended that even though a proceeding has been initiated with service of the charge memo along with order at Annexure-7, but Petitioner is not filing her written statement of defence nor participating in the proceeding. It is also contended that subsistence allowance as due and admissible to the Petitioner has been adjusted towards house rent, for unauthorized occupation of the quarter by the Petitioner in the campus of the College. 5.2. Learned counsel appearing for Opp. Party No. 3 however fairly contended that if the Petitioner will participate in the proceeding, this Court may pass appropriate order on the claim of the Petitioner for her reinstatement. 6. Learned Addl. Govt. Advocate contended that since the dispute is in between the Petitioner and the Governing Body, State has nothing to do with the claim so raised. 6.1. Learned Addl. Govt. Advocate further contended that since Petitioner is admittedly an employee of a recognized Aided Page 4 of 6. Educational Institution, the stipulation contained under the Proviso to Rule 21(2) of the 1974 Rules is required to be followed. It is also contended that no such request has yet been received by the Director-Opp. Party No. 2 to issue any order of approval with regard to the order of suspension issued by Opp. Party No. 3 on 15.11.2022 under Annexure-7. 7. Learned counsel appearing for the Petitioner also contended that since Kendrapara Autonomous College is a recognized Aided Educational Institution and Petitioner being an employee of the said Institution, provisions contained under Rule 21(2) of the 1974 Rules is required to be followed. Even though in terms of the Proviso to Rule 21(2), Petitioner can be placed under suspension for a period of 30 days pending approval, but no document has been filed by Opp. Party No. 3 showing approval of the order of suspension so passed against her on 15.11.2022 under Annexure-7. 8. Having heard learned counsel appearing for the Parties and considering the submission made, this Court finds that prior to placing the Petitioner under suspension vide order dt.15.10.2022 under Annexure-5, no permission of the Governing Body was obtained. But subsequently vide order dt.15.11.2022 under Annexure-7, Petitioner was placed under suspension with due approval of the Governing Body. 8.1. Be that as it may, since the order of suspension has been passed without taking prior permission of the Director in terms of the provisions contained under the Proviso to Rule 21(2) of 1974 Rule and no order showing approval of the order of suspension being produced by Opp. Party No. 3, as per the considered view of this Page 5 of 6. Court the order of suspension so passed cannot sustain in the eye of law. Therefore, this Court is inclined to quash the order of suspension so passed vide order dt.15.10.2022 under Annexure-5 and subsequent order dt.15.11.2022 under Annexure-7. While quashing the same, this Court directs Opp. Party No. 3 to reinstate the Petitioner in her services within a period seven (7) days from today. On her reinstatement in service, Petitioner will be allowed to file her written statement of defence to the charges framed in the proceeding enclosed to order dt.15.11.2022 under Annexure-7 within a period of four (4) weeks thereof. Petitioner is also directed to cooperate for disposal of the proceeding in accordance with law. However, the period of 30 days for filing of the written statement of defence will commence from the date Petitioner is reinstated in her services.
Decision
9. The writ petition is disposed of accordingly. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-May-2024 11:07:27 Page 6 of 6.