The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.19592 of 2023 & W.P.(C) No.19968 of 2023 In the matter of applications under Articles 226 & 227 of the Constitution of India, 1950. IN W.P.(C) NO.19592 OF 2023 Prasanna Kumar Dash ------------ -versus- State of Odisha & Others …. …. Petitioner Opp. Parties Advocates Appeared in this case For Petitioner - M/s. S.K. Das, P.K. Behera and N. Jena, Advocates
Legal Reasoning
For Opp. Parties - Mr. U.C. Behura, Addl. Government Advocate [OP Nos.1 & 2] M/s. S.C. Dash and S.N. Jena, Advocates [OP No.3] Mr. S. Roy, Advocate [OP No.4] IN W.P.(C) NO.19968 OF 2023 Governing Body of Raghunath Samabaya Mohavidyalaya, Odagaon -versus- …. Petitioner State of Odisha & Others …. Opp. Parties Page 1 of 8 Advocates Appeared in this case For Petitioner - M/s. S.C. Dash and S.N. Jena, R.B. Das & R.K. Muduli, Advocates For Opp. Parties - Mr. U.C. Behura, Addl. Government Advocate [OP Nos.1 & 2] Mr. S. Roy, Advocate [OP No.3] Mr. S.K. Das, P.K. Behera and N. Jena [OP No.4] ------------- CORAM MR. JUSTICE DIXIT KRISHNA SHRIPAD ---------------------------------------------------------------------------------------- Date of Hearing & Judgment : 09.12.2025 ---------------------------------------------------------------------------------------- PER DIXIT KRISHNA SHRIPAD, J. Both these petitions, i.e., one by the employee and another by the Management of the Institution seek to call in question the judgment dated 17.05.2023 entered by the State Educational Tribunal in Appeal No.14 of 2007. This appeal was filed by private OP, namely, Susanta Kumar Sahoo under Section 24B of the Odisha Education Act, 1969 for laying a challenge to his removal from service. Page 2 of 8 2. FACTS IN BRIEF: (a) Petitioner Aided Institution had appointed the companion petitioner as Lecturer in Physics vide order dated 01.11.1993 against the existing vacancy. The said appointee had remained unauthorized absent during the period between 09.07.2001 and 01.07.2007, when his marital litigations were stated to be going on both before the Family Court & Criminal Court, of course, which eventually ended in a peace accord. (b) During the above interregnum of absence, the private OP herein came to be selected & appointed to the eventual vacancy vide order dated 31.08.2002. This was preceded by a public advertisement and a walk-in interview as well. After the abandoner reverted to employment, the Management removed the private OP from service w.e.f. 26.04.2007 and that is how the dispute was raised in Appeal No.14 of 2007 before the Tribunal. (c) A formal order of termination was issued to the private OP herein on 14.08.2007. Therefore, appeal memo came to be amended by him. The appeal came to be allowed by the Tribunal vide order dated 15.04.2010. Petitioner-Lecturer had filed MJC No. 20 of 2010 before the Tribunal and that was dismissed on 23.10.2010. Therefore, he filed Page 3 of 8 WP(C) No. 22207 of 2011 that came to be allowed vide order dated 01.02.2019 remitting the matter back to the Tribunal for fresh consideration. Private OP’s Writ Appeal No. 92 of 2019 against the same came to be negatived on 23.11.2022. (d) The Tribunal, after hearing all the parties including the petitioners herein, again allowed the subject appeal vide order dated 17.05.2023, which is put in challenge in these petitions. Since common questions of fact & law are involved, both the petitions are taken together for final disposal with consent. 3. Having heard learned counsel for the parties and having perused the petitions papers this Court declines indulgence in the matter broadly agreeing with the reasoning of the Tribunal and also adding its own reasons as under: 3.1. The first submission of learned counsel for the petitioners that there was no vacancy in the post of Lecturer in Physics, the present incumbent just having been away from employment, OP No.4 cannot claim to have been appointed on substantive basis, is difficult to agree with. There is no dispute that OP No.4 was eligible & qualified for appointment in question. It is on record that the petitioner-Lecturer having been involved in matrimonial litigations, both civil & criminal, Page 4 of 8 was away from employment during a long period of about six years, i.e., between 09.07.2001 & 01.07.2007. No material is produced to show that he had applied for leave, much less sanctioned one. It is a text book case of abandonment of service eventually creating a regular vacancy, to which OP No.4 came to be selected & appointed. 3.2. Learned counsel appearing for OP No.4 is more than justified in pressing into service Rule 72(2) of Odisha Service Code, which reads as under: “72. REMOVAL OF GOVERNMENT SERVANT AFTER REMAINING LEAVE FOR A CONTINUOUS PERIOD EXCEEDING FIVE YEARS. (1) xxx xxxx xxxx (2) Where a Government servant does not resume duty after remaining on leave for a continuous period of five years, or where a government servant after the expiry of his leave remains absent from duty otherwise than or foreign service or on account of suspension, for any period which together with the period of the leave granted to him exceeds five years, he shall unless Government in view of the exceptional circumstances of the case otherwise determine, be removed from service after following the procedure the Odisha Civil Services (Classifications, Control and Appeal Rules, 1962.” laid down in The text & context of the above Rule comes to the rescue of OP No.4, inasmuch as admittedly the then incumbent of the post had abandoned the service, as already mentioned, having been implicated in both civil & criminal cases launched by his estranged spouse. Subsequently, i.e., after Page 5 of 8 a long lapse of six years, he came to be inducted to the place of OP No.4, with no justification whatsoever, which eventually resulted into unceremonious expulsion of OP No.4 from employment. 3.3. The petitioner-Management did not give a fair deal to OP No.4 when it re-inducted the companion petitioner as a Lecturer in Physics allegedly on 01.07.2007. Admittedly, he was involved in ST Case No. 409 of 2004 for offences punishable under Sections 498A & 307 of IPC read with Section 4 of Dowry Prohibition Act. Charges were framed after investigation and he was tried for the commission of offences at the hands of Criminal Court. Of course, he came to be acquitted vide order dated 24.12.2005. It is nobody’s case that it was an honourable acquittal and therefore he could be welcomed back on a red carpet, when OP No.4 was very much working having been duly selected & appointed. Petitioners’ contention that OP No.4 was not substantively appointed, the vacancy being casual, is too farfetched an argument. 3.4. The last contention of the petitioners that OP No.4 could not have been appointed on substantive basis because of State Government’s Circular dated 28.04.1998 that had clamped a ban on such appointment, is difficult to countenance. A Circular cannot be construed as an Act of Parliament or State Legislature. What prejudice would have been caused Page 6 of 8 to the Community of Students, had OP No.4 not been appointed to the eventual vacancy created by the abandonment of job by the petitioner- Lecturer needs no research. Having abandoned the service, he had no defence whatsoever qua the appeal of OP No.4. A voluntary abandonment is also a recognized mode of cessation of service vide G.T. Lad v. Chemical & Fibers of India Ltd., (1979) 2 SCR 613. It is relevant to reproduce what the Apex Court observed in Vijay S. Sathaye v. Indian Airlines Ltd., AIR 2013 SCW 6213 at Para-9: “9.….Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.” 3.5. The Tribunal has rightly construed the provisions of Section 10A(1) of the 1969 Act in observing that: “On a plain reading of the aforesaid provision, it is crystal clear that the Director of Higher Education is the competent authority to accord approval of the proposal to terminate an employee of the said College and thereafter the Governing Body can terminate the employee concerned. So to obtain prior approval of the competent authority is mandatory in the cases of termination of teachers and other members of the staff of an aided educational institution….The Hon’ble High Court has deprecated the practice of the Governing Body/Managing Committee in terminating the service of the teachers without obtaining prior approval from the authority….” The impugned order of the Tribunal, regardless of arguable irregularities, has brought about a just & fair result at the hands of statutory Tribunal, Page 7 of 8 which has accumulated expertise in the matter. That being the position, the Writ Courts should loathe to interfere. In the above circumstances, both the petitions being devoid of merits are liable to be dismissed and accordingly they are, costs having been made reluctantly easy. Web copy of the order to be acted upon by all concerned. (Dixit Krishna Shripad) Judge Orissa High Court, Cuttack The 9th Day of December,2025/Anisha Signature Not Verified Digitally Signed Signed by: ANISHA NANDA Designation: Jr. Stenographer Reason: Authentication Location: OHC, Cuttack Date: 10-Dec-2025 17:55:38 Page 8 of 8