The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.32241 of 2023 (Application under Articles 226 and 227 of the Constitution of India) A.F.R. Mahendra Prasad Nayak … Petitioner -versus- State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.S.K.Samal, Advocate. -versus- For Opposite Parties : Mr. S.N.Patanaik, A.G.A. --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA 07.11.2024. JUDGMENT W.P.(C) No.32241 of 2023 Page 1 of 14 Sashikanta Mishra,J. The Petitioner has approached this Court seeking the following relief; “It is therefore, most humbly prayed that this Hon’ble Court be graciously pleased to i) Admit the writ application. ii) Call for record. iii) Issue Rule NISI calling upon the opp. Parties to show cause as to why the orders dated 19.07.2023, impugned under 10.03.2021 19.01.2021 Annexure-8, 5 and 6 respectively shall not be quashed; and iv) If the Opp. Parties fails to show cause or show insufficient cause make the rule absolute by issuing a writ in the nature of Certiorari or any other appropriate writ/writs, by direction/directions impugned orders dated quashing 19.07.2023, 19.01.2021 and 10.03.2021 under Annexure-8, 5 and 6. the any v)Issue a writ in the nature of mandamus or writ/writs, other direction/directions directing the opposite parties to allow the petitioner to continue as before and regularize his service as regular primary school teacher and further extend all the consequential service and financial benefits within a stipulated time to be fixed by this Hon’ble Court. vi) And/or pass such other order/orders, direction/directions as this Hon’ble Court may deems fit and proper for the ends of justice. W.P.(C) No. 32241 of 2023 Page 2 of 14 And for the said act of kindness, the petitioner as in duty bound shall ever pray.” 2.
Facts
The brief facts of the case are that the Petitioner having been selected, was appointed as Sikshya Sahayak on 11.11.2012 by executing an agreement with the Collector-cum-C.E.O., Rayagada. He submitted his joining report on 16.11.2012. While continuing as such, he became seriously ill for which he remained on leave from 3.7.2013 to 2.3.2014 after intimating his immediate authority about his medical condition. During his treatment he kept on informing the Headmaster of the School regarding his inability to discharge his duty and accordingly prayed for leave. Upon recovery from illness, he submitted his joining report to the Headmaster on 23.4.2014, which was accepted, but he was not allowed to sign in the Attendance Register. After consultation with the Village Education Committee and the local Sarpanch an attendance register was prepared wherein the Petitioner marked his attendance. Since he did not W.P.(C) No. 32241 of 2023 Page 3 of 14 receive any salary despite rendering service, he
Legal Reasoning
approached this Court in W.P.(C) No.17212/2016 with prayer for release of salary and regularization of the leave period. This Court, by order dated 4.11.2019 directed the Collector to take a decision on the representation filed by the Petitioner within a stipulated period. Pursuant to such order, the Collector, after hearing the Petitioner rejected the representation on 19.1.2021 by holding that he is liable to be disengaged from service as he has violated the terms and conditions of his engagement order. Basing on such order the Collector, vide order dated 10.3.2021, disengaged the Petitioner from service retrospectively w.e.f. 03.7.2013 as per Clauses 16 and 17 of the terms and conditions of the engagement order. Being aggrieved, the Petitioner approached this Court again in W.P.(C) No.22124/2021. By order dated 25.8.2021, this Court directed the Petitioner to submit a representation to the Collector with further direction for consideration of the said representation taking into account the resolution dtd.19.11.2009. Pursuant to W.P.(C) No. 32241 of 2023 Page 4 of 14 such order, the Collector vide order dtd.19.7.2023 again rejected the representation of the Petitioner on the same ground. It is stated that the Petitioner being a Sikshya Sahayak can be removed from engagement with prior notice of 30 days as per Clause-4.4 of the Resolution dtd.19.11.2009 only if the conditions of the contract are violated on the basis of adverse report of the Village Education Committee. This procedure was not followed for which the impugned order becomes bad in law. Despite specific direction of this Court, the Collector did not consider the above aspect. On such facts, the present Writ Petition has been filed with the prayer as quoted before. 3. Counter affidavit has been filed by the Opposite Parties refuting the averments made in the Writ Petition. It is stated that the Headmaster of the School and the concerned Block Education Officer reported to the District Project Office, Rayagada, that the Petitioner remained unauthorizedly absent from his duties for a long period i.e. from 03.7.2013 to W.P.(C) No. 32241 of 2023 Page 5 of 14 2.3.2024. Accordingly, he was asked to show cause vide letter 07.10.2015 by the District Project Coordinator. He his reply on 17.11.2015 and simultaneously filed W.P.(C) No.17212/2016. Pursuant to direction of this Court, the Collector considered and rejected the representation and thereafter, he was disengaged from service vide order dated 10.3.2021. The petitioner again approached this Court in W.P.(C) No.22124/2021 and pursuant to directions issued therein the representation was again considered and rejected by the Collector. It is further stated that the engagement of the Petitioner was contractual/temporary and he violated the terms and conditions of the agreement signed by him. Prior to disengagement, he was called upon to show cause which he responded by submitting his reply on 17.11.2015. The Petitioner’s engagement was on annual contract basis renewable in subsequent years depending on the performance. It is mentioned that the annual contract should not be renewed if the Teacher W.P.(C) No. 32241 of 2023 Page 6 of 14 has not attended the School and not performed his assigned duties satisfactorily. 4. The Petitioner has filed a rejoinder admitting that pursuant to direction of the Collector, he appeared before the Collector for hearing on 19.1.2021 and submitted several documents in his defence such as his joining report, out-door patient ticket, letters addressed to the BEO, letter of the members of SMC and Village Education Committee etc. However, the Collector did not give any finding whatsoever with regard to the said documents. It is further stated that even though the Collector framed two issues for determination i.e., regarding unauthorized absence and entitlement for salary, he made out a third case by holding that the Petitioner is liable for disengagement. It is further stated that from the letter dtd.13.7.2016 of the Headmaster, it is evident that he had sent medical certificate along with leave application through post but the Collector held otherwise without any basis. It is also stated that even though the contract of the W.P.(C) No. 32241 of 2023 Page 7 of 14 Petitioner expired on 31.1.2013 he was admittedly allowed to work after expiry of the contract period, but he was illegally disengaged from service retrospectively w.e.f. 03.7.2013 which is not permissible in law. 5. Heard Mr. S.K.Samal, learned counsel for the Petitioner and Mr. S.N.Patnaik, learned Addl. Government Advocate for the State. 6. Shri Samal would argue that the Headmaster of the School clearly admitted that the Petitioner had submitted his leave application along with medical certificate which negatives the contention that he had remained unauthorizedly absent. Since the Petitioner was advised bed rest by the Doctor, he could not have attended to his duties. Mr.Samal further submits that even otherwise, as per the resolution of the Government dtd.19.11.2009, the Petitioner is entitled to be served with a show cause notice granting him 30 days time to file reply before taking action against him but, in the instant case, the said procedure was never followed. Mr.Samal further argues that the Petitioner’s W.P.(C) No. 32241 of 2023 Page 8 of 14 services could not have been retrospectively disengaged as the same is not permissible in law. The Collector was required to decide whether the Petitioner could be allowed to resume his duty and whether he is entitled to be paid wages but he made out a third case by holding the Petitioner as liable to be disengaged. 7. Mr.S.N.Patnaik, learned Addl. Government Advocate would argue that admittedly, the Petitioner’s engagement was on contractual basis on certain terms and conditions. It is provided that if a Teacher does not perform his assigned duties, he can be disengaged by granting him opportunity of hearing. In the instant case, there is absolutely no proof that the Petitioner had sought for or was granted leave on medical ground, rather he appears to have submitted the medical certificate afterwards. The so-called attendance register on which the Petitioner signed cannot be taken into consideration as there was no official order permitting such a course. Mr. Patnaik further argues that the Petitioner was called upon to W.P.(C) No. 32241 of 2023 Page 9 of 14 show cause vide order dted.7.10.2015 to which he replied on 17.11.2015, which was considered and found not satisfactory. According to Mr. Patnaik therefore, the impugned order warrants no interference. 8. The facts of the case as laid are not disputed inasmuch as the Petitioner remained absent from duties w.e.f. 03.7.2013 to 02.3.2014. He claims to have fallen ill and of having been under treatment during the aforesaid period. A medical certificate has been enclosed to the Writ Petition, issued by the Asst. Surgeon, D.H. Hospital, Bhadrak on 1.3.2014 and a out-door ticket also issued by the said Asst. Surgeon on 3.7.2013. In both the documents, there is advise for bed-rest of one month. The Petitioner has also enclosed copies of some letters under Annexure-3 series but the same are after expiry the period of leave. There is absolutely no evidence that any leave application along with medical certificate was submitted by the Petitioner before his immediate authority prior to W.P.(C) No. 32241 of 2023 Page 10 of 14 availing leave. From the impugned order, it appears that the Collector has mentioned that the Headmaster admitted that the Petitioner had sent medical certificate along with leave application through post but appeared before him after a long gap of one year. The Petitioner himself stated that he submitted his leave application through his friends and relatives. In view of this discrepancy in statements and particularly in the absence of any evidence, it is difficult to hold that the Petitioner had submitted any leave application along with medical certificate requiring him to be on medical leave prior to remaining absent. 9. It has been stated that the Petitioner was allowed to join by the Headmaster, but was not allowed to sign in the attendance register for which another attendance register was prepared in which he signed with an endorsement by the Village Education Committee. This Court is unable to comprehend as to under what authority a separate attendance register could be maintained. Moreover, the so-called W.P.(C) No. 32241 of 2023 Page 11 of 14 endorsement by the members of the Village Education Committee also appears to be quite incongruous in the absence of any authority being shown by the Petitioner for opening of a new attendance register. 10. Another important aspect that strikes to the mind is the conduct of the Petitioner in suppressing
Decision
material the facts in the Writ Petition that is, regarding the show cause notice issued to him on 7.10.2015, to which he replied on 17.11.2015. The entire Writ Petition is silent in this regard though the facts subsequent thereto have been pleaded in extenso. It is only when such fact was mentioned in the counter affidavit that the Petitioner admitted such fact of receipt of the show cause notice and submission of his reply thereto in his rejoinder. This is not an acceptable conduct, for which this Court is constrained to hold that the Petitioner has not come to the Court with clean hands. It is trite law that a litigant is not entitled to any relief if he does not come to the Court with clean hands or is found to have suppressed material facts. W.P.(C) No. 32241 of 2023 Page 12 of 14 Even otherwise, this Court has already held that there is no proof that the Petitioner had sought for medical leave prior to availing the same for which the entire period of absence from duty becomes unauthorized. Further, the principles of natural justice appear to have been duly followed inasmuch as the Petitioner was asked to show cause and he also submitted his reply thereto. The explanation so submitted was not accepted by the concerned authority considering the relevant facts. It has not been demonstrated as to how the finding of the authority on such score is wrong. In the impugned order dtd.19.7.2023, the Collector appears to have taken note of all the relevant facts and held that the Petitioner had violated the terms and conditions of the agreement signed by him for which he is liable for disengagement. The Petitioner was also given due opportunity of hearing before passing of such order. 11. From what has been stated hereinbefore, this Court finds no infirmity much less any illegality in the W.P.(C) No. 32241 of 2023 Page 13 of 14 impugned order so as to be persuaded to interfere therewith. 12. For the foregoing reasons therefore, this Court finds that the Petitioner has not made out any case for interference with the impugned order. 13. Resultantly, the Writ Petition being devoid of merit, is dismissed. There shall be no order as to costs. …………….……………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Nov-2024 18:18:53 W.P.(C) No. 32241 of 2023 Page 14 of 14