The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.30447 of 2020 Jnanendra Nath Sahoo ..... Petitioner Mr. J.K. Rath, Sr. Advocate along with Mr. N. Sarkar, Advocate -versus- 1) Sainik Schools Society, Sena Bhawan 2) Chairman, Board Of Governors, Sainik Schools Society 3) Chairman Local Board Of Administration 4) Principal, Sainik School 5) Mp. Tyagi Deputy Director General Army Education ..... Opposite Parties Mr. P.K. Parhi, DSGI along with Ms. B. Sahu, CGC THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 18.04.2024 Order No. 06 1. This matter is taken up through hybrid mode. 2. Heard Mr. J.K. Rath, learned Sr. Counsel appearing for the Petitioner along with Mr. N. Sarkar and Ms. B. Sahu, learned CGC
Legal Reasoning
was assailed by the present Petitioner before this Court in OJC No. 1064 of 1990. 4.1. This Court vide order dtd.10.02.1993 under Annexure-A/5 to the counter while setting aside the order dtd.27.09.1989, called upon the appellate authority to consider afresh the appeal of the Petitioner. The order passed by this Court on 10.02.1993 is quoted hereunder:- Page 2 of 8. “The petitioner came to be dismissed from service following a disciplinary proceeding against him in which three charges were framed. On the charges being denied, a court of inquiry was constituted and the charges were found established whereafter a second show cause notice dated 17.12.1988, as at Annexure-7, was given, to which the petitioner submitted a very detailed reply dated 2.1.1989. The reply runs into 20 fullscap typed pages. The order of dismissal thereafter came to be passed on 11.2.1989 in which we do not find any consideration of the points raised by the petitioner. On an appeal being preferred on 7.3.1989 vide Annexure-11, the same came to be disposed by an order passed on 27.9.1989, as at Annexure-12, in which the only relief given was that the punishment of dismissal was reduced to removal from service. The order as communicated to the petitioner does not at all show if the points raised by him either in the second show cause or for that matter in the memorandum of appeal had been considered by the appellate authority. It is well settled by now that the order of appellate authority must be a speaking one which enables the incumbent to know as to whether to know as to whether the points urged by him had been considered and, if so, why rejected. The insistence of the courts on recording of reasons in the appellate order is to take care of arbitrariness and to inspire confidence in the mind of the incumbent. That due mind had been applied to the points urged by him. This act only takes care of justice but also shows that justice has been done and also fortifies the saying "it is not enough that justice is done, it must be seen to have been done." 2. Shri Ray submits that it may be that the appellate authority recorded the reasons in the file which is not available to him. Even if that be so, we are of the view that the reasons must have been incorporated in the ultimate order communicated to the petitioner. Having come to the aforesaid conclusion, we have Page 3 of 8. not adverted to the other points urged by Shri Tripathy in challenging the order of dismissal which was subsequently converted to removal. 3. As the appellate order does not contain any reason, we set aside the same and call upon the appellate authority to consider afresh the appeal of the petitioner. While doing so, an opportunity of personal hearing shall be given to the petitioner. The hearing shall be held at Bhubaneswar and prior intimation about the date of hearing shall be given to the petitioner, at least 15 days ahead. The appellate order to be passed shall be a speaking one, a copy of which containing reasons shall be communicated to the petitioner to enable him to work out his remedy under the law if the appeal was to be dismissed.” 4.2. On the face of such order passed by this Court on 10.02.1993 when once again the appeal was disposed of vide order dtd.21.11.1994 under Annexure-A/6, but not by the appellate authority the same was challenged by the Petitioner before this Court in OJC No. 8916 of 1994. This Court after going through the materials placed before it, came to a conclusion that appeal in question has not been disposed of by the appellate authority-Opp. Party No. 2. Accordingly, while quashing the same, this Court again remitted the matter to the appellate authority vide its order dtd.10.07.2018. Relevant portion of the direction contained in order dtd.10.07.2018 is reproduced hereunder:- “In the circumstances, this Court interfering in the appeal order at Annexure-17, sets aside the same, but as a fresh hearing of the appeal is required, the appellate authority i.e. the Chairman, Board of Governors is directed to rehear the appeal giving opportunity of hearing to the petitioner by making his sitting at New Delhi. Page 4 of 8. Considering the submission of the learned counsel for the petitioner that the petitioner is no more staying in Odisha and has become a resident of West Bengal, the Chairman, Board of Governors is directed to make arrangement for travel of the petitioner to New Delhi to’ attend the appeal proceeding in its sitting at New Delhi on the date fixed. All the expenses including journey, boarding, lodging and local travels of the petitioner shall be borne by the Sainik School’s Society. The entire exercise shall be concluded within a period of four months from the date of communication of a certified copy of this order by the petitioner.
Arguments
appearing for the Opp. Parties along with Mr. P.K. Parhi, learned DSGI. 3. Petitioner has filed the present writ petition inter alia with the following prayer:- “Under the facts, and circumstances stated hereinabove, it is humbly prayed that this Hon’ble Court be pleased to; i) Quash the impugned order of punishment as at Annexure-10 and the impugned order dt.8.6.2020 passed by the Appellate Page 1 of 8. Authority as at Annexure-23 concurrently holding impugned orders are bad and illegal in the eyes of law; those And ii) Hold/declare that the enquiry so conducted against the petitioner was not in consistent with mandatory requirement of Rules and principle of natural justices and are void in the eyes of law and further declared that the findings of Enquiry Officers are perverse and based on irrelevant and extraneous and consideration; And iii) Hold/declare that the petitioner is deemed to be in service on and from 11.2.1989 (i.e. the date on which the impugned order of punishment was passed) will all consequential service and monetary benefits with @ 18% interest thereon specially when the prayer items No.(1) and (ii) are allowed by this Hon’ble Court; And Iv) Pass such other order(s) as may deemed fit and proper in the bonafide interest of justice; v) Admit and allow this application with costs;” And 4. It is contended that against the order of dismissal so passed way back on 11.01.1989, Petitioner preferred an appeal before the appellate authority, who happens to be the Chairman, Board of Governors, Sainik School Society, New Delhi – Opp. Party No. 2 on 07.03.1989 under Annexure-11. The appeal in question since was disposed of by the appellate authority vide order dtd.27.09.1989 under Annexure-A/4 to the counter without any reason, the same
Decision
The writ petition succeeds but however, to the extent of an order of remand for re-disposal of the appeal.” 4.3. Learned Sr. Counsel appearing for the Petitioner contended that on the face of the order passed by this Court on 10.07.2018, the appeal has now again been disposed of by an authority, who is not the appellate authority as like the earlier order passed on 21.11.1994 under Annexure-A/6 to the counter affidavit vide the impugned order dt.08.06.2020 under Annexure-23. It is accordingly contended that since on repeated occasion the appeal is not being taken up and disposed of by the appellate authority-Opp. Party No. 2, Petitioner is suffering since 11.01.1989 when he was illegally removed from his services. It is also contended that Petitioner is suffering from Cancer and at the fag end of his life and he may die at any point of time. It is accordingly contended that the impugned order passed on 13.07.2020 under Annexure-23 is not sustainable in the eye of law, the same having been passed by an incompetent authority and not in terms of the order passed by this Court on 10.07.2018 in OJC No. 8916 of 1994. 5. Ms. B. Sahu, learned CGC appearing along with Mr. P.K. Parhi, learned DSGI on the other hand contended that since order Page 5 of 8. dtd.08.06.2020 under Annexure-23 has been passed with due approval of the Rakhya Rajya Mantri and Chairman, Board of Governors, Sainik School Society, New Delhi-Opp. Party No. 2, no illegality has been committed with passing of the said order. It is accordingly contended that since the appeal has been disposed of in terms of order dtd.10.07.2018, it requires no interference. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that against an order of dismissal passed against the Petitioner on 11.01.1989, Petitioner preferred an appeal before the Chairman, Board of Governors-Opp. Party No. 2 on 07.03.1989 under Annexure-11. When the said appeal was disposed of without showing any reason, the matter was assailed before this Court in OJC No. 1064 of 1990. This Court vide order dtd.10.02.1993 under Annexure-A/5 while setting aside the order, remitted the matter to the appellate authority to pass a reasoned and speaking order. On the face of such direction issued by this Court in OJC No. 1064 of 1990, the appeal when was disposed of by an authority, who is not the appellate authority, the matter was assailed before this Court in OJC No. 8916 of 1994. 6.1. This Court after going through the pleadings and documents produced before it, came to a definite conclusion that the appeal has not been disposed of by the Chairman, Board of Governors-Opp. Party No. 2, who is admittedly the appellate authority. Accordingly, while setting aside the order dtd.21.11.1994, the matter was again remitted to the appellate authority vide order dt.10.07.2018 with a specific direction to the Chairman, Board of Governors to rehear the appeal by giving opportunity of hearing to the Petitioner in his Page 6 of 8. sitting at New Delhi. This Court also directed that the Opp. Parties shall bear the cost of travel to New Delhi and staying of the Petitioner at New Delhi also. 6.2. Even though pursuant to the said order, Opp. Parties bear the cost, but as found from the impugned order, the impugned order has been passed not by the appellate authority but with an observation that the same has been approved by the Chairman, Board of Governors and Rakhya Rajya Mantri. Since this Court in its order dtd.10.07.2018 had specifically directed the Chairman, Board of Governors-Opp. Party No. 2 to rehear the appeal and decide the same in accordance with law by giving due opportunity of hearing, this Court after going through the impugned order dt.08.06.2020 finds that the order has been passed not by the appellate authority, but with the observation that it has been approved by the appellate authority and Rakhya Rajya Mantri. Since it is found that the order dtd.08.06.2020 under Annexure-23 has not been passed in terms of the order passed on 10.07.2018 in OJC No. 8416 of 1994, this Court is inclined to quash the said order. While quashing order dt.08.06.2020 under Annexure-23, this Court remits the matter to Opp. Party No. 2 to take up the appeal in terms of the earlier order passed by this Court on 10.07.2018 and pass a fresh order by giving another opportunity of hearing to the Petitioner. 6.3. Since the appeal is pending since 07.03.1989, taking into account the present condition of the Petitioner as contended, Opp. Party No. 2 is directed to dispose of the appeal within a period of six (6) weeks from the date of receipt of this order. Page 7 of 8. 6.4. Ms. Sahu, learned CGC is directed to provide a copy of this order before the appellate authority, so that he can fix a date and dispose of the appeal within the aforesaid time period. As like the earlier order, Opp. Parties shall bear the expenses of the Petitioner along with one attendant for their travel to New Delhi and for their staying at New Delhi and taking part in the hearing of the appeal. Since on the face of two successive orders, the appeal is not being disposed of by the appellate authority, this Court impose a cost of Rs. 50,000/- on Opp. Party No. 2, to be paid to the Petitioner on the date fixed for hearing of the appeal. 7. The writ petition is accordingly disposed of. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Apr-2024 10:54:54 Page 8 of 8.