The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.20216 of 2022 Sasmita Nayak …. Petitioner Mr. S.K. Das, Advocate State of Odisha & Others -versus- …. Opposite Parties Mr.S. Jena, AGA Mr. S. Swain, Adv. for O.P.3 Mr.D.N. Rath, Adv. for O.P.4 CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 12.04.2024 Order No. 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the judgment dtd.08.06.2022 so passed by the State Educational Tribunal (in short Tribunal) in Appeal Case No.7/2015. Vide the said order, the application filed by the present Petitioner in Appeal Case No.7/2015 was dismissed on contest against all the Opposite Parties/Respondents. 4. It is the case of the Petitioner that the Petitioner was appointed as against the post of Demonstrator in the Department of Physics in Nilakantheswar Junior Mahavidyalaya, Bangara, Khannagar in the district of // 2 // Balasore vide order of appointment issued on 16.08.2002 under Annexure-2, where she joined on 02.09.2002. 4.1. It is contended that such an order of appointment was issued pursuant to the decision taken by the Governing Body in its Resolution dtd.16.08.2002 under Annexure-1. 4.2. It is the case of the Petitioner that while so continuing, Petitioner when was prevented from discharging her duty w.e.f. 29.06.2015, which amounts to termination, alleging the same, Petitioner approached the Tribunal by filing Appeal Case No.7/2015. 4.3. It is contended that since the Petitioner was duly appointed vide order dtd.16.08.2002, where she joined on 03.09.2002, since without issuing any order of termination, Petitioner was prevented from discharging her duty w.e.f. 29.06.2015, the Tribunal should have allowed the claim of the Petitioner with passing of an appropriate direction on the Governing Body to allow the Petitioner to continue with her services. However, without proper appreciation of the grounds taken in the appeal, the Tribunal dismissed the same vide the impugned judgment dtd.08.06.2022 under Annexure-9. It is accordingly contended that the impugned judgment so passed by the Tribunal is not sustainable in the eye of law.
Legal Reasoning
5. Mr. S. Swain as well as Mr. D.N. Rath, learned counsel appearing for the Opposite Party Nos.3 and 4 on Page 2 of 9 // 3 // the other hand made their submissions basing on the stand taken before the Tribunal. 5.1. Learned counsel appearing for Opposite Party Nos.3 & 4 contended that though there is no dispute that Petitioner was appointed as against the post of Demonstrator on 16.08.2002 and she joined on 03.09.2002, since Petitioner remained on unauthorized absent from the College with effect from 02.08.2010, various notices were issued to her on 16.11.2012, 4.01.2013 and 28.2.2013. In spite of such issuance of notices when the Petitioner never submitted any reply nor joined in her post, Petitioner was terminated from her services vide order dtd.16.04.2013. 5.2. It is contended that on the face of such order of termination issued on 16.04.2013 and without challenging the same, Petitioner by taking a plea that she was prevented from discharging her duty w.e.f.29.06.2015, filed the appeal in question. 5.3. It is also the contention of the learned counsel appearing for Opposite Party Nos.3 and 4 that after termination of the services of the Petitioner vide order dtd.16.04.2013, an advertisement was issued by the Governing Body of the College on 23.04.2013 in the daily ‘Samaj’ and on 26.04.2013 in the daily ‘Sambad’ inviting application for the post of Demonstrator in Physics. Pursuant to the said advertisement private Opposite Party No.4 on being duly selected was issued with the order of appointment on 05.05.2013. In terms of the said order of Page 3 of 9 // 4 // appointment issued in favour of Opposite Party No.4 she joined on 10.05.2013 and continuing as such till date. 5.4. It is contended that before the Tribunal the Governing Body while filing the show cause took a specific stand that Petitioner in spite of issuance of various notices with regard to her unauthorized absence from 02.08.2010 to 28.02.2013 never made any reply to such notices, and accordingly the Governing Body finding no other alternative decided to terminate the Petitioner from her services w.e.f. 16.04.2013 vide order
Decision
dtd.16.04.2013 under Annexure-7 to the writ petition. 5.5. Even though the said fact was brought to the knowledge of the Petitioner with filing of the show cause by the Governing Body, but Petitioner never challenged the same by filing appropriate application nor the Petitioner while filing a reply to the show cause disputed the issuance of such notices by the Governing Body, prior to terminating the services of the Petitioner vide order dtd.16.04.2013. The stand taken by the Governing Body in its show cause so filed before the Tribunal vide Para-6 & 7 are reproduced hereunder:- “6. That, in spite of repeated notices asking the appellant to join in her post, she did not respond nor filed any Show Cause Reply and as such the College Authority terminated her from service with effect from 16.04.2013, vide letter No.233 and memo No.234 dated 16.04.2013, due to her unauthorized long absence from 02.08.2010 to 28.02.2013. There was no option left in the part of the college authority except to pass termination order, after following all the procedures in the matter. Copies of the notices dated 16.11.2012, 04.01.2013, 28.02.2013 and 16.04.2013 are filed herewith as Annexure- B,C.D. & E. Page 4 of 9 // 5 // 7. That, last the college authority after due recruitment process made a public advertisement in daily newspaper The Samaj, dated 23.04.2013 and The Sambad, dated 26.04.2013 and following due procedure of selection appointed Smt. Ranjita Nayak qualifying candidate as demonstrator of Physics on 05.05.2013, who joined in their post on 10.05.2013 and submitted her joining report to the authority and continuing as such uninterruptedly since then. Copies of the daily papers published advertisement dated 23.04.2013 & 26.04.2013, appointment letter and joining report are filed herewith and marked as Annexure-F, G, H & I respectively. The reply submitted by the present Petitioner to the stand taken in Para-6 & 7 of the Writ Petition vide Para-5 is reproduced hereunder:- “5.That, it is respectfully submitted that, law is well settled that prohibition amounts termination. In this scenario, when the appellant was prohibited, she immediately filed this appeal petition before this Hon'ble Tribunal U / s - 10 (A) of the Odisha Education Act. 1969. The matter was admitted and notice was served on the Governing Body of the college and accordingly the principal-cum-secretary appeared through his counsel and filed counter reply. In his counter reply, he stated that the appellant remained unauthorized absent in the of the Governing Body college w.e.f. 02.08.2010 and accordingly show cause notices were served on the present appellant on dated 26.11.2012, 04.01.2013 and on 28.02.2013, when the appellant did not file any reply to the show cause notices then the service of the appellant was terminated on dated the Governing Body in his has not annexed any document/ postal receipt regarding service of the said show cause notices as well as the termination order dated 16.04.2013. It is a fact that, the so called termination order was not served on the appellant. He also disclosed in the counter reply that after terminating the service of the present appellant, the present opposite party No.4 was appointed against such terminated vacancy. When counter was filed, for the first time the present appellant could able to know that her service was terminated on dated 16.04.2013 and the present opposite party No.4 was appointed against her terminated vacancy”. 5.6. Learned counsel appearing for Opposite Party Nos.3 & 4 accordingly contended that since Petitioner remained on unauthorized absence for the period from 02.08.2010 Page 5 of 9 // 6 // to 28.02.2013 and never submitted any reply to the notices issued by Opposite Party No.3 on 16.11.2012, 4.01.2013 and 28.2.2013, she was rightly terminated from her services vide order dtd.16.04.2013. Petitioner instead of challenging such order of termination filed the appeal before the Tribunal with the plea that she was prevented from discharging her duty w.e.f. 29.06.2015. Since the order of termination in spite of being duly communicated to the petitioner, Petitioner never challenged the same, the Tribunal has committed no error in rejecting her claim. Even though such order of termination was enclosed to the show cause filed by Opposite Party No.3 before the Tribunal, but Petitioner never also challenged the same by filing appropriate application in the appeal in question. It is accordingly contended that the Tribunal has rightly rejected her claim while dismissing the application in Appeal Case No.7 of 2015. 6. To the submission made by the learned counsel appearing for Opposite Party Nos.3 and 4, Mr. S.K. Das, learned counsel for the Petitioner contended that since the order of termination so passed by the Governing Body on 16.04.2013 is not in terms to the provisions contained under Section-10-A of the Orissa Education Act, 1969, the said order cannot be taken as an order in the eye of law and is not required to be challenged. Section-10(A)(1) read with Section-10(A)(3) of the Act reads as follows- “[10-A. Service of teachers of aided institutions not to be terminated without approval- (1) The services of a teacher [and Page 6 of 9 // 7 // other members of the staff] of an aided Educational Institutions shall not be terminated without obtaining the prior approval in writing of the- (a) [Director] in the case of a teacher [and other members of the staff] of a college; (b) Circle Inspector of Schools having jurisdiction, in the case of a teacher [and other members of the staff] or a school. (2) Every order passed by the [Director] or Circle Inspector, as the case maybe, either according approval or refusing to accord approval under Sub-section (1) shall be communicated to the parties concerned within three months of the reference. (3) Any person aggrieved by an order passed under Sub-Section (1) may prefer an appeal to the Tribunal within one month from the date of receipt of the order.]” 6.1. It is also contended that Petitioner never was issued with the notices alleged to have been issued on 16.11.2012, 04.01.2013 and 28.02.2013 by Opposite Party No.3, nor the order of termination passed on 16.04.2013 was ever served on the Petitioner and accordingly it was not within the knowledge of the Petitioner, when she approached the Tribunal in the year 2015. It is accordingly contended that the Tribunal without proper appreciation dismissed the appeal vide the impugned order and it is not sustainable in the eye of law. 7. Mr. S. Jena, learned Addl. Government Advocate for the State on the other hand supported the impugned judgment so passed by the Tribunal and contended that since it has been passed with due consideration of the materials placed before the Tribunal it requires no interference. Page 7 of 9 // 8 // 8. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that Petitioner on the plea that she was prevented from discharging her duty w.e.f.29.06.2015, approached the Tribunal by filing Appeal Case No.7 of 2015. Though there is no dispute that petitioner was appointed as against the post of Demonstrator in the Department of Physics vide order of appointment issued on 16.08.2002 under Annexure-2 with date of her joining on 02.09.2002 under Annexure-3, but as found from the record, Petitioner because of her long absence w.e.f. 02.08.2010 was issued with various notices by the Governing Body on 16.11.2012, 04.01.2013 and 28.02.2013. As no reply was made to such notices issued by the Governing Body Petitioner was terminated from her services vide order issued by the Governing Body on 16.04.2013 under Annexure-7. 8.1. As found from the record, the order of termination so passed by the Governing Body on 16.04.2013 was not only communicated to the Petitioner, but also it was enclosed to the show-cause filed by the Governing Body in Appeal Case No.7/2015. In spite of that, the order of termination was never challenged and by taking a plea that she was prevented from discharging her duty w.e.f. 26.09.2015, Petitioner approached the Tribunal by filing the appeal in question. 8.2. It is also found that the stand taken by the Governing Body-Opposite Party No.3 in Para-6 of the Page 8 of 9 // 9 // show cause regarding issuance of the notices to the Petitioner on 16.11.2013, 04.01.2013 and 28.02.2013, has not been disputed by the petitioner while filing the reply. Petitioner only disputed non-receipt of the order of termination. 8.3. Since the order of termination so passed against the Petitioner on 16.04.2013 was brought to the notice of the Petitioner along with the show cause so filed by the Governing Body before the Tribunal, as per the considered view of this Court the said order should have been challenged by filing appropriate application in that regard. Not only that Petitioner never disputed the stand taken by Opposite Party No.3 regarding her remaining on unauthorized absence w.e.f. 02.08.2010. Since the Petitioner in spite of being served with the order of termination never took any step to challenge the same nor disputed the notices issued by Opposite Party No.3 and allowed the appeal to be disposed of basing on the materials available on record, this Court finds no illegality or irregularity with the impugned judgment in question and is not inclined to interfere with the same. 9. Accordingly, the Writ Petition stands dismissed. Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Apr-2024 11:53:35 (Biraja Prasanna Satapathy) Judge Page 9 of 9