The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.18092 OF 2018 & 23997 OF 2020 (Applications under Articles 226 and 227 of the Constitution of India) W.P.(C) No.18092 OF 2018 Satyajeet Roy Choudhury … Petitioner -versus- State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.S.K.Das, Advocate -versus- For Opposite Party Nos.1 to 3 : Mr.B.P.Tripathy,A.G.A For Opposite Party No.4 : Mr. Purusottam Chuli, Advocate. W.P.(C) No.23997 OF 2020 Dr.Pradipta Kumar Gahan … Petitioner -versus- State of Odisha & others … Opposite Parties Page 1 of 18 Advocates appeared in the case through hybrid mode: For Petitioner : Mr.P. Chuli, Advocate -versus- For Opposite Party Nos.1 to 3 : Mr.B.P.Tripathy,A.G.A For Opposite Party No.4 : Mr. S.K.Das, Advocate. --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 24.2.2023. Sashikanta Mishra,J. Both these Writ Petitions involve similar facts and therefore were heard together and are being disposed of by this common judgment. 2. The Petitioner in W.P.(C) No.23997/2020 has approached this Court seeking the following relief; <Under the above circumstances it is therefore humbly prayed that this Hon’ble Court may graciously be pleased to admit this writ petition and issue rule nisi calling upon the opposite parties to show cause as to (A) why the impugned Government W.P.(C) Nos. 18092/2018 & 23997/2020 Page 2 of 18 Order OSWAS No.HE-NCET-1 MISC- 0148-2020/27964 dated 31.8.2020 passed by the Commissioner-cum- Secretary, Department of higher Education, Government of Odisha under Annexure-1 shall not be quashed; (B) why the seniority of the Petitioner shall not be protected in terms of the earlier circulars contained as at Annexures-2 and 3 read with the statutory rules; Government (C) why the Petitioner shall not be permitted to continue as the Principal in charge of Biju Pattnaik Degree College of Science and Education, Jayadev Vihar, Bhubaneswar-13, Dist-Khurda as per the order of approval of the Director of Higher Education vide the Office Order No.34231 dated 12.11.2018 issued by the Director of Higher Education, Opposite Party No.2, under Annexure- 7; and (D) Why such other appropriate order/orders as this Hon’ble Court may deem fit and proper shall not be passed.= 3. Be it noted at the outset that the relief claimed as at 8A9 and 8B9 of the prayer no longer survives for consideration in view of the admitted position that the Government Order dated 31st August, 2020 (referred to under Sl. No.A of the prayer) has in the mean time W.P.(C) No. 18092 of 2018& 23997/2020 Page 3 of 18 been quashed by a co-ordinate bench of this Court in W.P.(C) No.230/2022 and batch. The prayer as at Sl. No.B being relatable to the Government Order dated 31st August, 2020 is therefore, no longer available to be considered in the present context. As regards the prayer as at Sl. No.C, it is admitted that one Satyajeet Roy Choudhury (Petitioner in W.P.(C) No.18092/2018) is Senior to the Petitioner and was allowed to work as Principal-in-charge w.e.f. 17th July, 2017. The said Satyajeet Roy Choudhury was divested of such responsibility by order dated 13th November, 2018. Challenging the same the said Satyajeet Roy Choudhury has approached this Court in the connected Writ Petition. The claim of the present Petitioner namely, Dr.Pradipta Kumar Gahan for permission to continue as Principal-in-charge would obviously depend upon the finding of this Court in respect of the order divesting Satyajeet Roy Choudhury as Principal-in-charge. It would therefore, be in the
Decision
fitness of things to consider the Writ Petition preferred by Satyajeet Roy Choudhury at the outset because the W.P.(C) Nos. 18092/2018 & 23997/2020 Page 4 of 18 finding rendered therein would impact the prayer of Dr. Pradipta Kumar Gahan as mentioned above. 4. The Petitioner in W.P. (C) No.18902/2018 (Satyajeet Roy Choudhury) was appointed as Lecturer in Political Science in Biju Pattnaik Degree College of Science and Education, Jayadev Vihar, Bhubaneswar being appointed by the Governing Body on 14th September, 1991. He joined on 16th September, 1991. Subsequently, the College was bifurcated into a Junior College and Degree College of the same name. The Petitioner was placed as an employee of the Degree College. His appointment was approved by the Director by order dated 7th July, 2015 and he was notified to receive 40% block grant in terms of Odisha (Aided Colleges, Aided Junior Colleges and Aided Higher Secondary Schools) G.I.A. order, 2008 w.e.f. 20th January, 2009. Being the Senior most approved Lecturer of the College, the Petitioner, on the recommendations of Sub-Collector, Bhubaneswar- cum- President of Governing Body of the College was W.P.(C) No. 18092 of 2018& 23997/2020 Page 5 of 18 approved to act as the Principal-in-charge-cum- Secretary of the College vide order dated 15th July, 2017 passed by the Director. Accordingly, he assumed office on 17th July, 2017. While the matter stood thus, by order dated 12th November, 2018, the Deputy Director (GCB) acting on the order of the Director, Higher Education divested (sic) the Petitioner from all responsibilities of the Principal of the College with immediate effect on allegation raised by the students, alumni and guardians against him. Sri Pradipta Kumar Gahan, Lecturer in History (Opposite Party No.4) and the next Senior most approved teaching staff was approved as Principal-in-charge-cum-Secretary of the College in place of the Petitioner. By the same order, the Sub-Collector-cum-President, Governing Body was requested to enquire into the allegations raised by the students, alumni and guardians received vide Government letter dated 4th October, 2018 against the Petitioner and to initiate disciplinary action against him if the allegations were found to be true. The said W.P.(C) Nos. 18092/2018 & 23997/2020 Page 6 of 18 order is enclosed as Annexure-9 to the Writ Petition and is impugned. 5. Counter affidavit has been filed on behalf of the Director, Higher Education, Odisha (Opposite Party No.2). While not disputing the basic facts averred in the Writ Petition relating to appointment, approval, extension of block grant and approval of the Petitioner as Principal-in-charge-cum-Secretary of the College. It is settled that the impugned order was issued on the allegation of students, alumni and guardians against the Petitioner being proved. It is further stated that he was divested of the charge of Principal due to receipt of some inexcusable allegations against him in connection with his involvement in sale of forged certificates in Bhubaneswar in the name of an Institute, for which he was in police custody for 18 days by Bolangir Police. It is further alleged that he was involved in taking alcohol and did not hand over important documents/charge to the newly appointed Principal-in-charge. After divesting the Petitioner from W.P.(C) No. 18092 of 2018& 23997/2020 Page 7 of 18 the responsibility of Principal-in-charge of the College, the Opposite Party No.4 being the next Senior most approved Lecturer was approved as the Principal-in- charge. 6. Opposite Party No.4 has also filed a counter, inter alia, stating that the Petitioner being in judicial custody for more than 48 hours i.e., from 31st January, 2006 to 13th February, 2006 in a case involving issue of false certificates is under deemed suspension, but he did not disclose the fact of his arrest and detention to the concerned authority nor made any representation to revoke the deemed suspension. The fact of the representation made on 14th November, 2017 by the guardians of the students to the Director, Higher Education for removal of the Petitioner from the post of Principal-in-charge for his corrupt conduct has been stated. It is, however, admitted that the Petitioner is the Senior most staff in the Degree Wing College. Several other allegations have been made relating to the personal life of the Petitioner as also certain acts W.P.(C) Nos. 18092/2018 & 23997/2020 Page 8 of 18 done by him including financial irregularities after being divested of the charge of Principal. The Petitioner has attempted to repel the allegations made in the counter affidavit filed by Opposite Party No.4 by filing a rejoinder reiterating the fact that the impugned order being punitive in nature was passed without granting any opportunity to him to defend himself. Further, the impugned action was taken on the basis of some vague allegations which were never proved and hence, the same militates against the fundamental principles of law apart from being in violation of natural justice. Since nothing has been proved against the Petitioner as yet, the impugned order becomes stigmatic in nature. 7. Heard Mr. Samir Kumar Das, learned counsel for the Petitioner, Mr. R.N.Mishra, learned Addl. Government Advocate for the State and Mr. Purusottam Chuli, learned counsel appearing for the Opposite Party No.4. W.P.(C) No. 18092 of 2018& 23997/2020 Page 9 of 18 8. Assailing the impugned order under Annexure-9, Mr. Das would argue that the same is patently illegal being contrary to the principles of natural justice. The Petitioner was never given an opportunity to defend himself before taking the extreme step of divesting him from the charge of Principal-cum-Secretary. Mr. Das would further argue that the action is otherwise unjustified and unwarranted being based on mere allegations that had not been proved as yet. Since the impugned order is stigmatic in nature and has been issued without the allegations levelled against the Petitioner being proved, the same cannot be sustained in the eye of law. 9. Mr.R.N.Mishra, learned Addl. Government Advocate, contends that the Petitioner cannot claim any vested right over the post of Principal. As per the guidelines issued by the Government, he being the senior most approved teaching staff at the relevant time was given the charge of Principal-cum-Secretary. However, because of serious allegations levelled W.P.(C) Nos. 18092/2018 & 23997/2020 Page 10 of 18 against him, it was deemed fit to divest him of such charge in the better interest of the Institution. 10. Mr. Purusottam Chuli, learned counsel appearing for Opposite Party No.4, has fully supported the impugned order and submits that the Petitioner seriously misconducted himself and is also guilty of suppression and misrepresentation of facts. There being serious allegations against him, he was rightly removed from the charge of Principal of the Institution as his continuance would have had an adverse impact on the overall discipline of the Institution. Mr. Chuli has also referred to several allegations relating to alleged financial irregularities committed by the Petitioner even after being divested of the charge of Principal-cum-Secretary. But this Court is of the view that the same are not relevant to determine the present lis and hence, are not referred to in extenso. 11. The facts of the case being undisputed, the only issue that arises for consideration of this Court is, W.P.(C) No. 18092 of 2018& 23997/2020 Page 11 of 18 whether the order under Annexure-9 is legal and/or justified. To answer this, it must first be noted that it is common ground of the parties that the Petitioner being the Senior most approved teaching staff of the College was approved as Principal-in-charge of the College by order dated 15th July, 2017 of the Director, Higher Education. It is stated in the impugned order that the allegation was raised by students, alumni and guardians against him. What exactly are the said allegations is not forthcoming. In the memo appended to the impugned order, reference has been made to Government Letter No.27911/HE dated 4th October, 2018, the copy of which is found to be enclosed as Annexure-A/2 to the counter affidavit filed by Opposite Party No.2. A perusal of the said letter reveals that a representation was received from the Hon9ble M.L.A., Bhubaneswar (Uttar) and the Director was requested to cause an enquiry to know the veracity of the allegations raised by students, alumni and guardians W.P.(C) Nos. 18092/2018 & 23997/2020 Page 12 of 18 against the Principal with the further stipulation that if established, penal action may immediately be initiated. The letter dated 25th September, 2018 of the Hon9ble M.L.A. addressed to the Hon9ble Minister of Higher Education, enclosed along with Annexure-A/2 reveals that the complaints of the students, alumni and guardians was communicated regarding his misbehavior, alcohol use in office etc. Enclosed to the said letter is a typed and unsigned pamphlet issued by the purported Convener of the Alumni Association, Bhubaneswar, making several allegations against the Petitioner. The copy of the F.I.R. lodged relating to Bolangir Town P.S. Case No.259 dated 26.11.2005 and the order dated 31st January, 2006 passed by learned S.D.J.M. in the corresponding G.R. Case have also been enclosed. 12. After going through all the aforementioned documents carefully, this Court finds that firstly, most of the allegations are vague and secondly, the allegation of involvement in criminal case relates back W.P.(C) No. 18092 of 2018& 23997/2020 Page 13 of 18 to the year 2005-06. It is not the case of the Opposite Party No.2 that the Petitioner9s involvement in the criminal case was suppressed by him, rather this Court finds that despite his involvement in the criminal case, the Petitioner was allowed to function as the Principal in-charge in the year 2017. The source of the pamphlet enclosed to the letter of the Hon9ble M.L.A. is not known. Be that as it may, it would remain in the realm of allegations/suspicion till it is proved in accordance with law. It is surprising that having approved the Petitioner as in-charge Principal- cum-Secretary, the Opposite Party No.2 has made a turn around by referring to the criminal case in his counter. Firstly, this amounts to blowing hot and cold at the same time, which is impermissible. Secondly, nothing has been stated in the impugned order about the criminal case as being the reason for its issuance or regarding the particulars of the allegations and therefore, it is also impermissible on the part of Opposite Party No.2 to refer to the same in his counter. It is trite that no party can be permitted to improve W.P.(C) Nos. 18092/2018 & 23997/2020 Page 14 of 18 upon its case by filing a counter if the original order does not contain any such reason. In this regard, reference may be had to the decision of the Apex Court in the case of Mohinder Singh Gil and another v. The Chief Election Commission, New Delhi and others; reported in AIR 1978 SC 851. 13. Coming to the main ground urged by Mr. Das that is, absence of opportunity of hearing, this Court finds that the Petitioner was straight way divested of all responsibilities of the Principal with immediate effect only on the basis of allegations without informing him the particulars of the allegations and giving him opportunity to have his say regarding the same. True, an enquiry has been directed to be conducted, but then this is not a case of suspension pending drawl of disciplinary proceeding, which is permissible in law. Divesting the Petitioner from the responsibility of Principal in the facts and circumstances of the case amounts to a penal action and definite down-grading of his status inasmuch he was forced thereby to work W.P.(C) No. 18092 of 2018& 23997/2020 Page 15 of 18 under his immediate junior. This is also stigmatic in nature. If there were any allegations then at the very least, the Petitioner should have been made aware of the same and called upon to submit his reply thereto. It is no longer res integra that the principles of natural justice are required to be scrupulously adhered to even by a quasi judicial authority taking an administrative decision. The salutary principle of law, which goes by the name audi alteram partem has to be strictly followed as otherwise, the action becomes arbitrary and therefore, unsustainable in the eye of law. 14. As regards the allegations made by the Opposite Party No.4, the same are matters that can be considered, if at all, by an appropriate forum but the same cannot be projected to justify the otherwise illegal action taken by the Opposite Party No.2 in the form of the order under Annexure-9. It is highly significant to note that nothing is forthcoming from the side of the Opposite Party No.2 as regards the result of W.P.(C) Nos. 18092/2018 & 23997/2020 Page 16 of 18 the enquiry supposed to be conducted against the Petitioner. 15. Therefore, on a conspectus of the analysis of the discussion made herein before, this Court has no hesitation in holding that the impugned order cannot be sustained in the eye of law and hence, needs to be interfered with. 16. The above being the clear finding of this Court in the Writ Petition preferred by Satyajeet Roy Choudhury, it is evident that the prayer of Dr. Pradipta Kumar Gahan for permission to continue as Principal- in-charge has no legs to stand. 17. In the result, the Writ Petition vide W.P.(C) No.18092/2018 succeeds and is therefore, allowed. The impugned order under Annexure-9 is quashed. The Opposite Party No.2 is directed to place the Petitioner in-charge of the Principal-cum-Secretary of the College within two weeks from the date of communication of this order or on production of W.P.(C) No. 18092 of 2018& 23997/2020 Page 17 of 18 certified copy thereof by the Petitioner. Further, the Petitioner is directed to render full cooperation to the concerned authorities in the conduct of the enquiry in relation to the allegations levelled against him. Consequently, W.P.(C) No.23997/2020 is dismissed. ………..…….……………. Sashikanta Mishra, Judge Ashok Kumar Behera W.P.(C) Nos. 18092/2018 & 23997/2020 Page 18 of 18 W.P.(C) No. 18092 of 2018& 23997/2020 Page 19 of 18 W.P.(C) Nos. 18092/2018 & 23997/2020 Page 20 of 18 W.P.(C) No. 18092 of 2018& 23997/2020 Page 21 of 18