The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.22542/2010, 23416/2010, 21904/2014 and 21274/2015 (Applications under Articles 226 and 227 of the Constitution of India) In W.P.(C) No.22542/2010 Managing Committee of Jakeda Gram Panchayat High School, Similisahi … Petitioner -versus- State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr. J.K.Rath, Sr. Advocate Mr. A.K.Saa, Advocate -versus- For Opposite Party Nos.1 to 4 : Mr. A.R.Dash, A.G.A For Opposite Party No.5 : Mr.S.K.Das, Advocate For Opposite Party No.6 : Mr. K.K.Swain, Advocate Page 1 of 28 In W.P.(C) No.23416/2010 Swagat Kumar Sahoo … Petitioner -versus- State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr. K.K.Swain, Advocate -versus- For Opposite Party Nos.1 to 4 : Mr. A.R.Dash, A.G.A For Opposite Party No.5 : Mr.S.K.Das, Advocate For Opposite Party No.6 : Mr. J.K.Rath, Sr. Advocate In W.P.(C) No.21904/2014 Pramod Kumar Nanda … Petitioner -versus- State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode: W.P.(C) Nos. 22542 of 2010 and Batch Page 2 of 28 For Petitioner : Mr. S.K.Das, Advocate -versus- For Opposite Party Nos.1 to 4 : Mr. A.R.Dash, A.G.A For Opposite Party No.5 : Mr. J.K.Rath, Sr.Advocate For Opposite Party No.6 : Mr. K.K.Swain, Advocate In W.P.(C) No.21274/2010 Swagat Kumar Sahoo … Petitioner -versus- State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr. K.K.Swain, Advocate Ms. Deepali Mahapatra -versus- For Opposite Party Nos.1 to 3 : Mr. A.R.Dash, A.G.A For Opposite Party No.4 : Mr. J.K.Rath, Sr. Advocate For Opposite Party No.5 : Mr.S.K.Das, Advocate --------------------------------------------------------------------------- W.P.(C) Nos. 22542 of 2010 and Batch Page 3 of 28 CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 28.03.2024. Sashikanta Mishra,J. Common questions of facts and law being involved in all these cases, they were heard together
Decision
and are being disposed of by this common judgment. 2. W.P.(C) No.22542/2010 has been filed by the Managing Committee of Jakeda Gram Panchayat High School with prayer to set aside the order dated 30.11.2010 passed by the Joint Director(SE), Regional Directorate of Education, Bhubaneswar, Odisha (for short ‘Joint Director’ ), Opposite Party No.3. 3. W.P.(C) No.23416/2010 has been filed by one Swagat Kumar Sahoo with prayer to set aside the same order passed by the Joint Director, Opposite Party No.3. 4. W.P.(C) No.21904/2014 has been filed by one Pramod Kumar Nanda with prayer to quash order dated 19.2.2013 passed by the District Education W.P.(C) Nos. 22542 of 2010 and Batch Page 4 of 28 Officer, Nayagarh (Opposite Party No.4) in approving the service of Swagat Kumar Sahoo as Hindi Teacher for the purpose of payment of block grant to him. 5. W.P.(C) No.21274/2015 has been filed by said Swagat Kumar Sahoo with prayer to quash order dated 29.9.2015 passed by the District Education Officer, Nayagarh (Opposite Party No.3), whereby the earlier approval order issued in his favour was cancelled. 6. As is evident, the dispute between the parties emanates from the order dated 30.11.2010 passed by Joint Director as impugned in the first two Writ Petitions. Decision rendered in respect of said Writ Petitions would have a material bearing on the result of the subsequent two Writ Petitions. It would therefore, be proper to take up the first two Writ Petitions mentioned above for consideration. Facts 7. Jakeda Gram Panchayat High School at Simili Sahi in the district of Nayagarh was established in the year 1994-95. It got permission and recognition for W.P.(C) Nos. 22542 of 2010 and Batch Page 5 of 28 Class-VIII in the Session 1996-97. The Board of Secondary Education, Odisha, granted recognition for Classes IX and X in the Academic Session 1999-2000. One Pramod Kumar Nanda (Opposite Party No.5 in W.P.(C) No.22542/2010) was appointed by the Managing Committee of the School as Hindi Teacher on 04.9.1996. The Management alleges that he was in the habit of committing mischief for which he was warned on several occasions. Being hands in glove with one Bijay Kumar Mediniray, the Petitioner allegedly collected illegal gratifications from the students and issued certificates/mark sheets describing himself and signing as Headmaster-in- charge. Further, despite not being deputed by the Management, the Opposite Party No.5 in connivance of the Headmaster in-charge Sri Mediniray, permitted 11 fake students to appear in the Annual H.S.C. Examination, 2006 for which an F.I.R. was lodged against them. He also allegedly collected money from the students for issuance of Admit Card in their favour. Opposite Party No.5 thereafter remained W.P.(C) Nos. 22542 of 2010 and Batch Page 6 of 28 unauthorizedly absent from the School w.e.f. 06.3.2006 for which the Managing Committee, as per Resolution dated 22.3.2006 decided to issue show cause notice to him, but he refused to receive the same. Another show cause notice was issued as per Resolution dated 10.4.2006 but he refused to receive the same. Again as per Resolutions dated 23.4.2006 and 19.7.2006, notices were issued, but he refused to receive the same. As such, an inquiry committee was formed being comprised of two Members of the Managing Committee to enquire into the matter. Opposite Party No.5 refused to receive the notice of the inquiry sent through the Peon on 28.8.2006 which had to be affixed on the door of his house. Since he did not turn up, it was decided to hold an ex-parte inquiry. The Committee submitted its report on 25.6.2007 suggesting his dismissal from service. Again notice was issued by registered post to Opposite Party No.5 on 07.9.2007, which was also refused. This was followed by another show cause notice on 13.9.2007 by Registered Post which was also refused. Another letter W.P.(C) Nos. 22542 of 2010 and Batch Page 7 of 28 was issued on 24.9.2007 through Under Certificate of Posting, but the Opposite Party No.5 did not respond. Ultimately, the Managing Committee, vide Resolutions passed on 28.8.2007 and 05.11.2007 decided to terminate the services of the Opposite Party No.5 and on 05.11.2007, the order of termination was communicated to him. In the mean time, for the interest of the students, the Managing Committee appointed one Swagat Kumar Sahoo (Opposite Party No.6 in W.P.(C) No.22542/2010) on temporary basis as Hindi Teacher w.e.f. 31.7.2007 and subsequently gave him regular appointment on 16.11.2007. Being purportedly aggrieved by the order of termination, the Opposite Party No.5 filed an appeal before the Joint Director on 14.5.2008 alleging that he was prevented to discharge his duties w.e.f. 21.9.2007. Pursuant to notice, the Managing Committee appeared and submitted its counter. The Inspector of Schools, being called upon by the appellate authority also submitted his report. The Opposite Party No.6 had filed an application for intervention, but the same was not W.P.(C) Nos. 22542 of 2010 and Batch Page 8 of 28 considered by the appellate authority. After, hearing the parties, the appellate authority vide order dated 30.11.2010 (copy enclosed as Annexure-18) allowed the appeal and directed the Management to reinstate Opposite Party No.5 in service. 8. Heard Mr. J.K.Rath, learned Senior counsel with Mr. A.K. Saa, learned counsel for the Petitioner- Managing Committee, Mr. A.R.Dash, learned Addl. Government Advocate for the State, Mr. S.K.Das, learned counsel for Pramod Kumar Nanda (Opposite Party No.5) and Mr. K.K.Swain, learned counsel for Swagat Kumar Sahoo (Opposite Party No.6 in W.P.(C) No.22542/2010 and Petitioner in W.P.(C) Nos.23416/2010 and 21274/2015). Contentions 9. Mr. J.K.Rath, learned Senior counsel would argue that the appeal filed by the Opposite Party No.5 before the Joint Director is not maintainable being barred by limitation. Relying upon the Letter No.13585 W.P.(C) Nos. 22542 of 2010 and Batch Page 9 of 28 (2) EYS dated 27.3.1983 of Government in Education and Youth Services Department addressed to DPI (S) H, Odisha, Mr. Rath would argue that an appeal against the order of termination is required to be filed within a month from the date of termination. In the instant case, the order of termination was issued on 5.11.2007 but the appeal was preferred on 14.5.2008, which is long after the expiry of the period prescribed. The Joint Director did not take this vital aspect into consideration for which the impugned order is unsustainable. On merits, Mr. Rath would argue that the finding of the Joint Director is against the weight of evidence on record inasmuch as the Management clearly proved through documents that the principle of natural justice had been scrupulously followed before terminating the services of the Petitioner. The Joint Director, however, did not consider the evidence of the Management in the proper perspective as also the report of the Inspector of Schools which clearly proved that the Petitioner had remained unauthorizedly absent from duties and had refused to receive all show W.P.(C) Nos. 22542 of 2010 and Batch Page 10 of 28 cause notices and the inquiry report communicated by the Managing Committee. 10. Mr. K.K.Swain, learned counsel, while supporting the contentions raised by learned Senior counsel Mr. Rath, further submits that his client was appointed against the termination vacancy of Opposite Party No.5. His services were subsequently regularized by the Managing Committee w.e.f. 16.11.2007. So, as on the date of filing of the appeal, he was a regular employee of the School and therefore, a necessary party. The finding in the appeal has the effect of materially affecting his service and therefore, he had filed an application for intervention before the Joint Director. Though the application was taken on record, yet the Opposite Party No.6 was never granted an opportunity of hearing. Mr. Swain submits that the impugned order warrants interference on this score alone. 11. Mr. A.R.Dash, learned Addl. Government Advocate, has supported the impugned order and W.P.(C) Nos. 22542 of 2010 and Batch Page 11 of 28 submits that this Court sitting in writ jurisdiction may not enter into the findings of fact arrived at by the Joint Director. He further submits that the Joint Director has passed a reasoned order based on appreciation of evidence adduced by the parties and therefore, his finding does not warrant any interference. 12. Mr.S.K.Das also supports the impugned order and submits, the Government Letter dated 27.3.1983 prescribing limitation of one month was superseded by another order issued by the Government on 15.12.2000. In the said order, there is no prescription of limitation for preferring appeal before the Joint Director. On the points raised by Mr. K.K.Swain, Mr. Das has referred to the documents enclosed as Annexure-D/5 which is the list of Teaching and Non- Teaching employees of the School wherein the name of Opposite Party No.6 (Swagat Kumar Sahoo) finds place at Sl.No.7 showing his date of appointment as 02.7.2007. He also refers to the said document to W.P.(C) Nos. 22542 of 2010 and Batch Page 12 of 28 demonstrate that such appointment of Opposite Party No.6 was regular. Thus, according to Mr. Das, Opposite Party No.6 was regularly appointed even before termination of service of Opposite Party No.5 which obviously is invalid. This also finds support from the report of the Inspector of Schools dated 23.7.2010. Therefore, according to Mr. Das, the Opposite Party No.6 not having been validly appointed cannot be treated as a necessary party. On merits, Mr. Das would argue that the charges of misconduct levelled against the Opposite Party No.5 relating to collection of money for issue of Admit Cards, identification of fake candidates etc. are no longer open to be agitated since the criminal case instituted vide F.I.R. lodged in Naugaon P.S. on 4.3.2006 ended in final report as mistake of fact on 14.12.2006 being duly accepted by the competent Court on 26.2.2007. As regards the main allegation of unauthorized absence, Mr. Das, would argue that despite taking the plea of serving multiple show cause notices on Opposite Party No.5, the Management could not actually prove such fact by W.P.(C) Nos. 22542 of 2010 and Batch Page 13 of 28 adducing necessary evidence during hearing of the appeal. On the contrary, the fact that the Management had manufactured documents to show compliance of the principles of natural justice came to light during hearing, which the Joint Director rightly accepted. According to Mr. Das therefore, the impugned order warrants no interference. 13. Before proceeding to consider the rival contentions as noted above, this Court would like to keep in mind the scope of judicial review by the High Court of an order passed by a quasi-judicial Authority like the Joint Director. It is the settled position of law that the High Court exercising jurisdiction under Article 226 of the Constitution of India does not act as an appellate authority and that such jurisdiction is limited to correct errors of law or violation of principle of natural justice. The Supreme Court in the case of W.P.(C) Nos. 22542 of 2010 and Batch Page 14 of 28 Rae Bareli Kshetriya Gramin Banik Vs. Bhola Nath Singh & Ors.,1 held as follows; review is not akin “Under these circumstances, the question arises whether the High Court would be correct in law to appreciate the evidence and the manner in which the evidence was examined and to record a finding in to that behalf. Judicial adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Article 226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. In this case, no such errors were pointed out nor any finding in that behalf was recorded by the High Court. On the other hand, the High Court examined the evidence as if it is a Court of first appeal and reversed the finding of fact recorded by the enquiry officer and accepted by disciplinary authority. Under these circumstances, the question of examining the evidence, as was done by the High Court, as a first appellate Court, is wholly illegal and cannot be sustained.” The same principle was reiterated in the case of Lalit Popli Vs. Canara Bank & Ors., (2003) 3 SCC 5832, the Supreme Court observed as follows:- "While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority."