The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.8930 OF 2011 (An application under Articles 226 and 227 of the Constitution of India) Managing Committee of Kanak Durga High School, Nischinta, Balasore … Petitioner -versus- Regional Director of Education, Bhubaneswar and others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.A.K.Mohanty-A, Advocate -versus- For Opposite Party Nos.1 and 2 : Mr. B.P.Tripathy,A.G.A. For Opposite Party No.3 : Mr. S.K.Das, Advocate For Opposite Party No.4 : Mr.S.C. Puspalaka, Advocate -------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA Page 1 of 8 JUDGMENT 11.4.2023. Sashikanta Mishra,J. The Petitioner is the Managing Committee of Kanak Durga High School at Nischinta in the district of Balasore. The School was established in the year 1987 and got recognition in the year 1991. It received grant-in-aid w.e.f. 1st April, 2008. One Sanjaya Kumar Mishra (Opposite Party No.3) was appointed as a Classical Teacher in the School on 26th August, 1990 and joined as such on 1st September, 1990. He remained unauthorizedly absent from the School for days together for which the Managing Committee issued show cause notices to him by registered post repeatedly to his permanent address, but all such notices were returned un-served due to absence of the addressee. The notice was therefore, published in the local daily 8Ajikali9. Despite such notices, the Opposite Party No.3 neither submitted any reply nor joined in his duties. The Managing Committee therefore, in its Resolutions dated 9th February, 2002 and 8th May, 2003 unanimously resolved to initiate disciplinary W.P.(C) No. 8930 of 2011 Page 2 of 13 action against him. At this stage, the Opposite Party No.3 is said to have submitted resignation on 5th September, 2004, which was accepted by the Managing Committee in its resolution also passed on the same date. The Managing Committee thereafter appointed one Sarojini Pati as Classical Teacher, but it came to light that she was already appointed in another School and had also contested in the election to the post of Sarpanch of Sindhia Grama Panchayat. She therefore, resigned from her post, which was accepted on 2nd January, 2007. The Managing Committee thereafter appointed Opposite Party No.4 as Classical Teacher after adopting due procedure of selection. The Opposite Party No.3 approached this Court in W.P.(C) No.19570/2008, which was permitted to be withdrawn with liberty to approach the Regional Director. He thereafter filed an appeal before the Regional Director being Appeal Case No.135/2009. The said appeal was allowed by the Regional Director by order dated 11th March, 2011 (copy enclosed as Annexure-4) whereby, the action of the Management in W.P.(C) No. 8930 of 2011 Page 3 of 13 preventing Opposite Party No.3 to perform duty was held illegal and it was directed to reinstate him in his post with immediate effect. The said order is impugned in the present Writ Petition.
Legal Reasoning
2. Heard Mr. A.K.Mohanty-A, learned counsel appearing for the Petitioner, Mr. S.K.Das, learned counsel appearing for Opposite Party No.3 and Mr. S.C.Puspalaka, learned counsel appearing for the Opposite party No.4. Also heard Mr. B.P.Tripathy, learned Addl. Government Advocate for the State. 3. It is argued by Mr.A.K.Mohanty-A that the appeal is grossly barred by limitation inasmuch as the Petitioner claims to have been prevented from discharging his duty w.e.f. 16th August, 2004, so he should have preferred appeal within one month as per the circular of the Government dated 27th March, 1983. The appeal was however, filed only in the year 2009, which is 5 years after the cause of action allegedly arose. It is further argued that the appellate authority has not taken into consideration the fact that W.P.(C) No. 8930 of 2011 Page 4 of 13 Opposite Party No.3 remained unauthorizedly absent for days together and did not respond to the show cause notices issued to him multiple times. The notice was also published in newspaper. It was therefore, wrong on the part of the appellate authority to hold that the principles of natural justice were not followed. It is however argued by Mr. Mohanty that in any case, the Opposite Party No.3 had voluntarily tendered his resignation, which was accepted on the same day by the Managing Committee and therefore, he is estopped to subsequently re-agitate the issue. 4. Per contra, Mr. S.K.Das, learned counsel appearing for the answering Opposite Party No.3 has argued that the appeal was filed before the Regional Joint Director as per Government Notification dated 15th December, 2000, which was issued in supersession of the earlier Notification dated 27th March, 1983. The said Notification does not prescribe any period of limitation for preferring appeal. On merits, it is contended by Mr. Das that there is absolutely no proof of issuance of the W.P.(C) No. 8930 of 2011 Page 5 of 13 show cause notices much less service thereof on the Opposite Party No.3. The postal receipts enclosed to
Decision
the Writ Petition do not relate to the purported notices. In any case, the registered letters were returned to the sender. It is not the same thing as refusal to receive the letter which could have been treated as sufficient service. Mr.Das further submits that the Resolution dated 15th September, 2004 cannot be treated as valid since several outsiders/non-Members of the Managing Committee were present and had signed thereon. It is also argued that signatures on plain papers were obtained from all employees including the Headmaster and were utilized to prepare resignation letters and therefore, no reliance can be placed upon the same. 5. As regards the plea of limitation, it is to be noted that the Government in the erstwhile Education and Youth Services Department in its letter No.13585 (2) EYS dated 27th March, 1983 while providing the remedy of appeal against arbitrary termination of the services of the employees of the Private Unaided W.P.(C) No. 8930 of 2011 Page 6 of 13 Recognized Educational Institutions to the Director, Public Instructions (HE) laid down that such appeal should be preferred within a period of one month from the date of termination. By a subsequent Notification dated 15th December, 2000, the State Government empowered the Regional Joint Directors as the appellate authorities in place of the Director of Secondary Education. The said Notification superseded the earlier Notification dated 27th March, 1983. Further, the said Notification did not prescribe any period for filing of appeal. This Court however, finds from the uncontroverted pleadings particularly, the counter affidavit filed by Opposite Party No.3 that challenging the action of Headmaster in preventing him to discharge his duties from 16th August, 2004, the Petitioner had initially submitted a representation addressed to the Secretary of the Institution on 18th August, 2004 (copy enclosed as Annexure-A/3), which was duly received by one Bhikari Charan Dalai (Secretary of the Managing Committee). He further preferred an appeal before the Director, Secondary W.P.(C) No. 8930 of 2011 Page 7 of 13 Education, but as no action was taken in the matter, he filed W.P.(C) No.19570/2008. Subsequently, in view of Government Notification dated 15th December, 2000 he withdrew his Writ Petition with liberty to file appeal before the Regional Joint Director. This Court finds that though the Petitioner claims to have filed appeal before the Director, Secondary Education yet, neither any date of such filing nor the number of such appeal is mentioned. What order ultimately was passed in the said appeal is also not forthcoming from the pleadings. It is also not the case of Opposite Party No.3 that he withdrew the said appeal to file a fresh appeal before the Regional Joint Director in terms of Government Notification dated 15th December, 2000. From the copy of the appeal memo in Appeal No.135/2009 preferred before the Regional Joint Director, it has however, been stated under Paragraph-14 as follows; <That now the appeal was to be filed before the Honble Forum but on the wrong advise the appellant has filed the representation before the and Director, Higher Education when no action was taken on that matter, he has moved the Hon’ble W.P.(C) No. 8930 of 2011 Page 8 of 13 Government High Court in W.P.(C) No. 19507/2008 being converted with Circular the empowering the Hon’ble Regional Joint Director with power to appear, the appellant has withdrawn his case from the Hon’ble High Court and move this forum for justice. Hence this appeal.= Obviously, this is not the same thing as preferring appeal. Moreover, the date of submission of such representation before the Director is also not forthcoming. 6. From the foregoing discussion, what emerges is, the Opposite Party No.3 claims to have been prevented by the Headmaster from discharging his duties on 16th August, 2004 and yet, he preferred appeal against such action only in the year 2009. Be it noted that the date of filing of the appeal has also not been stated. The O.P.No.3 approached this Court in the year 2008 in W.P.(C) No.19507/2008. The Institution was brought under the grant-in-aid fold w.e.f. 1st April, 2008. The O.P.No.3 has failed to satisfy this Court as to what did he do in between the date of his alleged W.P.(C) No. 8930 of 2011 Page 9 of 13 prevention from discharging his duties i.e. on 6th April, 2008 till the date of filing of the Writ Petition before this Court. It is well settled that even though no period of limitation is prescribed to avail a particular remedy yet, law requires the person aggrieved to act with promptitude as otherwise 3rd party rights may accrue. Under such circumstances, if a belated motion is made to challenge an action, it would amount to unsettling the settled position as regards the other person, who may have acquired a right in the interregnum. In the instant case, the Opposite Party No.4 was appointed as Classical Teacher in the School on 25th January, 2007. 7. From the facts narrated above, this Court finds itself persuaded to agree with the contentions raised on behalf of the Petitioner that the Opposite Party No.3, despite being prevented from discharging his duties slept over the matter for as long as four years and thereafter woke up to approach this Court and then preferred appeal before the Regional Director W.P.(C) No. 8930 of 2011 Page 10 of 13 evidently to get the benefit of grant-in-aid. By then five years had elapsed and the Opposite Party No.4 had been validly appointed. In the absence of even a semblance of explanation offered for such inordinate delay in approaching the appellate authority, it must be held that the appeal could not have been entertained by the Regional Director. The impugned order therefore, deserves to be set aside on such score alone. 8. Even on merits, this Court finds that several notices were issued to the Opposite Party No.3 (copies of which have been enclosed to the Writ Petition under Annexure-3). It is also not disputed that the notice was also published in a local Newspaper. It cannot therefore, be said that there was no adherence to the principles of natural justice by the Managing Committee. The finding of the Regional Director to the contrary is not sustainable. The other finding that the name of the Opposite Party No.3 was included in the renewal recognition form in June, 2004 is proof of his W.P.(C) No. 8930 of 2011 Page 11 of 13 employment does not hold much water. Since such renewal recognition application is submitted every year and all employees on roll are included therein. By such time the Opposite Party No.3 had not been terminated from his service and so, it is no surprise that his name was included in the renewal recognition form. It is to be noted that as per his own case, the Opposite Party No.3 was prevented from discharging his duties from 16th August, 2004 by which date the renewal recognition form had already been submitted. The finding of the Regional Director on such score is therefore unsustainable. Having held as above, this Court does not deem it proper to enter into the controversy relating to so-called submission and acceptance of resignation by the Opposite Party No.3 on 5th September, 2004. 9. From a conspectus of the analysis and the discussion made hereinbefore, this Court is of the view that the impugned order cannot be sustained in the eye of law and therefore, warrants interference. W.P.(C) No. 8930 of 2011 Page 12 of 13 Resultantly, the Writ Petition is allowed. The impugned order dated 11th March, 2011 (Annexure-4) is hereby quashed. ………..…….……………. Sashikanta Mishra, Judge Ashok Kumar Behera W.P.(C) No. 8930 of 2011 Page 13 of 13 W.P.(C) No. 8930 of 2011 Page 14 of 13 W.P.(C) No. 8930 of 2011 Page 15 of 13