The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C ) No.15246 of 2009 with W.P.(C ) No.31115 of 2022 In the matter of an application under Article 226 & 227 of the Constitution of India. Bikram Kumar Pattnaik …. Petitioner -versus- State of Orissa & Others …. Opposite Parties For Petitioner :M/s. Sadashiv Patra, Advocate For Opp. Parties :M/s. B. Dash, Advocate (for Opp. Party Nos.4 & 5) Mr. A.K.Swain, Advocate (for the Petitioner in W.P.(C ) No.31115 of 2022) Mr. S.K. Samal, Addl.Govt.Advocate (for State-Opp. Parties) PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing: 09.05.2023 and Date of Order: 27.06.2023 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. Since the issue involves the Writ Petitions relates to appointment and continuance of Lecturer in English in Garh // 2 // Banikilo College, both the matters were heard analogously and disposed of by the present common order. 2. While W.P.(C ) No.15246 of 2009 has been filed by the Petitioner Bikram Kumar Pattanaik challenging the order of termination terminating the Petitioner from his service w.e.f 09.10.2009 vide office order dt.09.10.2009 issued by the Opp. Party No.4 under Annexure-4, W.P.(C ) No.31115 of 2022 was filed by Shri Rajanikanta Sethi challenging the order passed by the self-same Opp. Party No.4 on 28.10.2022, wherein the Petitioner in W.P.(C ) No.15246 of 2009 was allowed to join in his previous post i.e. Lecturer in English in the College in question. 3.
Decision
The factual matrix giving rise to filing of the Writ Petition in W.P.(C) No.15246 of 2009 is that the Petitioner on being duly selected was appointed as a Lecturer in English in Garh Banikilo College vide Officer order dt.11.09.1996 so issued under Annexure-1. Pursuant to the order issued under Annexure-1, the Petitioner joined as a Lecturer in English on the very same date. While so continuing vide letter dt.29.09.2009 under Annexure-2, Opp. Party No.3 directed the President of the Governing body of the College to terminate the services of the Petitioner and basing on the said direction, the Petitioner was terminated vide the impugned office order dt.09.10.2009 under Annexure-4. Page 2 of 17 // 3 // 4. Learned counsel appearing for the Petitioner in W.P.(C ) 15246 of 2009 contended that the Petitioner was earlier continuing as a Lecturer in English in S.L.A. College, Godipada w.e.f 11.03.1996. But on being selected for his appointment as a Lecturer in English in Garh Banikilo College, the Petitioner submitted his resignation from S.L.A College on 09.09.1996 vide Annexure-6. The Petitioner after submitting his resignation vide Annexure-6 joined in the College on 11.09.1996 in terms of the Office order issued under Annexure-1. 4.1. It is contended that while continuing as such w.e.f 11.09.1996 when one student committed suicide, initially UD Case No.03 of 2007 was registered. But subsequently, when on 04.12.2007, an FIR was lodged by implicating the Petitioner with regard to the said crime, Nayagarh P.S. Case No.391 of 2007 was registered against the Petitioner for the offences under Sections 302/306/380 & 404 of the Indian Penal Code. But in the said matter, charge-sheet was submitted for the offences under Sections 306/380/404 of the I.P.C and the Petitioner faced the trial before the learned Adhoc Additional District and Sessions Judge, Nayagarh in S.T. Case No.16/132 of 2009/08. 4.2. It is contended that because of his implication in Nayagarh P.S. Case No.391 of 2007 basing on the F.I.R lodged on 04.12.2007, the Petitioner when remained on leave, the Petitioner Page 3 of 17 // 4 // vide Office order dt.12.02.2008 was placed under suspension. After being placed under suspension, an enquiry was conducted with regard to the continuance of the Petitioner on unauthorized leave w.e.f 07.11.2007 and one Dr. N.C.Patra, Principal, Women’s College, Khurda conducted the enquiry and submitted the enquiry report on 04.09.2008. But on the face of such enquiry report submitted on 04.09.2008, the Governing body of the College in its proceeding dt.08.03.2009 resolved to re-instate the Petitioner by withdrawing the order of suspension. In terms of such decision of the Governing body, the Petitioner vide letter dt.13.03.2009 under Annexure-5 was allowed to join in his work. In terms of the letter issued under Annexure-5, the Petitioner though submitted his joining report on 14.03.2009 before Opp. Party No.5, but the same was not accepted and accordingly the Petitioner submitted the said joining before the Secretary of the Governing body with due acceptance. 4.3. It is also contended that subsequently vide letter dt.18.03.2009, the Governing body of the College while submitting the proposal of the employees of the College for the purpose of release of Block Grant, also submitted the name of the Petitioner as against the post of Lecturer in English by showing his date of joining as 11.09.1996. Page 4 of 17 // 5 // 4.4. It is submitted that while the matter stood thus, Opp. Party No.3 vide letter dt.29.09.2009 under Annexure-2 when on the one hand directed the President of the Governing body to terminate the services of the Petitioner, but on the other hand, vide another letter issued on 29.09.2009 under Annexure-3 appointed Sub-Collector, Nayagarh as the Special Officer of the College in terms of the provision contained under Section 7-A (3) of the Orissa Education Act, 1969. On being so appointed to discharge the function of the Governing body and taking into account, the direction contained in Annexure-2, the Petitioner was terminated from his service vide Office Order dt.09.10.2009 under Annexure-4. The Petitioner challenging the direction contained in Annexure-2 and the order of termination issued under Annexure-4 approached this Court in W.P(C) No.15246 of 2009. 4.5. Learned counsel for the Petitioner contended that since the Petitioner was duly appointed as a Lecturer in English where he joined on 11.10.1996, the Petitioner should not have been terminated vide order under Annexure-4 without following the principle of natural justice and without giving reasonable opportunity of hearing to the Petitioner. Since the same was not followed and the Petitioner was straightaway terminated from his service basing on the direction issued under Annexure-2 by the Page 5 of 17 // 6 // Opp. Party No.3, the order of termination so issued under Annexure-4 is not sustainable in the eye of law. 5. On being noticed, while Opp. Party No.3 filed his counter affidavit supporting the action with regard to issuance of Annuexres-2 to 4. Opp. Party Nos.4 & 5 filed a joint counter affidavit inter alia stating therein that the Petitioner was rightly terminated from his service basing on the enquiry conducted by Opp. Party No.3 to the complaint made by the villagers under Annexure-A/3 to the counter so filed by Opp. Party No.3. 6. Learned Additional Government Advocate while supporting the action of the Opp. Party No.3 made his submission basing on the stand taken in the counter affidavit so filed by the Opp. Party No.3. 6.1. It is contended that basing on a public petition received by Opp. Party No.3 on 01.08.2009 vide Annexures-A/3, Opp. Party No.3 conducted an enquiry and in the said enquiry it was found that the appointment of the Petitioner is not legal as on the date of his appointment on 11.09.1996, he was serving as a Lecturer in English in S.L.A College, Godipada as reflected vide Annexure- B/3. 6.2. It is also contended that since the Governing body of the College neglected to perform his duty, Opp. Party No.3 in view of the provision contained under Section 7A(3) of the Act appointed Page 6 of 17 // 7 // the Sub-Collector as the Special Officer to discharge the duty of the Governing body vide Annexure-3 and vide Annexure-2 since a direction was already issued to the Governing body to terminate the services of the Petitioner, the Special Officer-Opp. Party No.4 basing on the said direction terminated the Petitioner from his service vide Office Order dt.09.10.2009 under Annexure-4. 6.3. It is also contended that not only by the time the Petitioner was appointed in Garh Banikilo College on 11.09.1996, he was serving as a lecturer in English in S.L.A College, Godipada with the date of joining as 11.03.1996 and he continued in the said College till 01.07.2004 as reflected in Annexure-B/3, but also the Petitioner had not the required percentage of mark in M.A. Since during enquiry conducted by the Opp. Party No.3, all these things came to light, Opp. Party No.3 vide Annexure-2 directed for termination of the services of the Petitioner. It is also contended that the continuance of the Petitioner in S.L.A College, Godipada beyond 11.09.1996 is also reflected vide different communications issued under Annexure-B/3 series. 6.4. It is also contended that since the Secretary of the Governing Body of the College did not comply the direction issued by the Opp. Party No.3 in his letter dt.21.08.2009 as reflected in Annexure-C/3, Opp. Party No.3 in view of the provisions contained under Seciton-7A(3) of the Act while superseding the Page 7 of 17 // 8 // Governing body, appointed the Sub-Collector-Opp. Party No.4 as the Special Officer to discharge the powers and functions of the Governing body. It is accordingly, contended that since the very appointment of the Petitioner on 11.09.1996 is not just and proper and the Petitioner was not having the required percentage of mark which was found by the Opp. Party No.3 while causing the enquiry on Annexure-A/3, the direction issued under Annexure-2 is not liable for interference and so also the order of termination issued under Annexure-4. 7. Mr. B. Dash, learned counsel appearing for Opp. Party Nos.4 & 5 on the other hand made his submission basing on the stand taken in the counter. 7.1. It is contended that by the time, the Petitioner was appointed as a Lecturer in English in Garh Banikilo College on 11.09.1996 under Annexure-1, the Petitioner was continuing as such in SLA College, Godipada w.e.f 11.03.1996 till 01.07.2004. Therefore, the very appointment of the Petitioner in Garh Banikilo College on 11.09.1996 is not a valid appointment as the Petitioner by then was in service in S.L.A College, Godipada. 7.2. Mr. Dash further contended that since the Governing body of the College did not follow the direction of the Opp. Party No.3 to comply with the direction issued under Annexure-2, the said Opp. Party No.3 in view of the specific provision contained under Page 8 of 17 // 9 // Section 7A(3) of the Act superseded the Governing body by appointing Opp. Party No.4 as the Special Officer to discharge the powers and functions of the Governing body vide Annexure-3. 7.3. On assuming such charge of the Governing body, Opp. Party No.4 in view of the direction issued to the Governing Body under Annexure-2 rightly terminated the Petitioner vide order under Annexure-4. It is also contended that the order of termination so passed under Annexure-4 being an appealable one, the Petitioner should not have approached this Court in the Writ Petition instead of availing the alternative remedy of appeal. 7.4. Mr. Dash, further contended that the student of the College also made a complaint before the Principal on 25.01.2008 under Annexure-B/4 seeking the termination of the Petitioner from his service. It is also contended that prior to submission of Annexure-B/4, since the Petitioner remained on unauthorized leave w.e.f 07.11.2007, one Dr. Nrusingh Charan Patra, Principal Women’s College, Khurda was directed to cause an enquiry on the affairs of the Petitioner. The said Nrusingha Charan Patra after conducting due enquiry, submitted his report on 04.09.2008 under Annexure-C/4. In the said report, he found that the Petitioner has not secured the required percentage of mark in his M.A and he also is not attending the college. Mr. Dash, accordingly contended that taking into account the Page 9 of 17 // 10 // complaint made by the students of the College under Annexure- B/4 and the report submitted under Annexure-C/4, Opp. Party No.3 rightly directed the Governing body to terminate the Petitioner from his service and it requires no interference. 8. Mr. Ashok Kumar Swain, learned counsel appearing for the Petitioner in W.P.(C ) No.31115 of 2022 on the other hand contended that the Petitioner in W.P.(C ) No.15246 of 2009 after being terminated from his service vide order under Annexure-4, the Petitioner in W.P.(C ) No.31115 of 2022 was duly selected and appointed as a Lecturer in English vide order of appointment issued by the Principal of the College on 07.05.2010 under Annexure-6 series. The Petitioner in terms of the said order joined in the College on 07.05.2010. It is also contended that while continuing as such w.e.f 07.05.2010, when the Petitioner came across the order dt.28.10.2022 so passed by the Sub- Collector-cum-Special Officer under Annexure-9 permitting the petitioner in W.P.(C ) No.15246 of 2009 to join in his post, the Petitioner being aggrieved by such order is before this Court challenging the same. 8.1. Mr. A.K. Swain, learned counsel appearing for the Petitioner contended that since the Petitioner in W.P.(C ) No.15246 of 2009 was continuing as a Lecturer in English in S.L.A College, Godipada by the time he was appointed vide order under Page 10 of 17 // 11 // Annexure-1, the said order is not legal and justified. In support of the continuance of the Petitioner in other college in S.L.A College, Godipada, the Petitioner has submitted various documents under Annexure-1 series as well as the letter issued by the Principal, S.L.A College, Godipada wherein the date of termination has been shown as 1.07.2004 with date of appointment as 11.03.1996. It is also contended that on being so terminated, the Petitioner after facing due recruitment process since was appointed vide order dt.07.05.2010 and is continuing as such till date, the Petitioner will be seriously prejudiced, if the Petitioner in the other case in terms of the impugned order under Annexure-9 is allowed to join in the College as Lecturer in English. Mr. Swain also contended that the order under Annexure-9 has been passed by Opp. Party No.4 on being influenced by the Petitioner in the other case. It is accordingly contended that in view of such continuance of the Petitioner w.e.f 07.05.2010, the Petitioner in the other case is not required to be allowed to join in terms of the order under Annexure-9 and the said order is not sustainable in the eye of law. 9. I have heard Mr. Sadashiv Patra, learned counsel appearing for the Petitioner in W.P.(C ) No.15246 of 2009, Mr. B. Dash, learned counsel appearing for Opp. Party Nos.4 & 5, Mr. Ashok Kumar Swain, learned counsel appearing for the Petitioner in Page 11 of 17 // 12 // W.P.(C ) No.31115 of 2022 and Mr. S.K. Samal, learned Additional Government Advocate appearing for the State-Opp. Party. On the consent of the learned counsel appearing for the parties, the matter was finally heard at the stage of admission and disposed of by the present order. 10. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that the Petitioner in W.P.(C ) No.15246 of 2009 was appointed as a Lecturer in English in Garh Banikilo College vide Order dt.11.09.1996 under Annexure-1. Pursuant to the said order, the Petitioner in the said case was not only allowed to join as a Lecturer in English, but also he was allowed to continue as such. The dispute arose only when the Petitioner in the said case was implicated in Nayagarh P.S. Case No.391 of 2007 basing on the FIR lodged against the Petitioner on 04.12.2007. The complaint made by the students under Annexure-B/4 to the counter as well as by the villagers under Annexure-A/3 to the counter are all made after the Petitioner was implicated in the aforesaid police case. 10.1. This Court further finds that basing on the compliant made under Annexure-A/3, the Opp. Party No.3 though conducted the enquiry and accordingly issued the direction Page 12 of 17 // 13 // directing for termination of the Petitioner on various grounds, vide letter dt.29.10.2009 under Annexure-2 but no document is filed either by Opp. Party No.3 or by Opp. Party Nos.4 & 5 showing that the Petitioner in W.P.(C ) No.15246 of 2009 was show-caused and was given an opportunity of hearing in the enquiry so conducted by Opp. Party No.3 basing on Annexure- A/3. Since the Petitioner in W.P.(C ) No.15246 of 2009 was never afforded an opportunity of hearing by the Opp. Party No.3, on the ground of non-compliance of the principle of natural justice, the finding of the said enquiry and consequential direction issued by the Opp. Party No.3 on 29.09.2009 under Annexure-2, as per the considered view of this Court, is not sustainable in the eye of law. 10.2. This Court further finds that while directing the Governing body of the College to terminate the Petitioner vide letter dt.29.09.2009 under Annexure-2, Opp. Party No.3 on the self same date dissolved the Governing body of the College by appointing the Sub-Collector as the Special Officer to discharge the function of the Governing Body vide letter dt.29.09.2009 under Annexure-3. Such action of the Opp. Party No.3 in issuing Annexure-3, as per considered view of this Court is not a judicious one as both Annexure-2 and Annexure-3 were issued on a particular day. The Governing Body of the College should Page 13 of 17 // 14 // have been given reasonable time to comply with Annexure-2, prior to taking action under Section 7-A(3) with issuance of Annexure-3. Since the same was not followed by Opp. Party NO.3, the action of the Opp. Party No.3 in issuing Annexure-3 on the very same day Annexure-2 was issued, is not legal and justified. 10.3. It is also found from the record that since the Petitioner was terminated basing on the direction issued by the Opp. Party No.3 under Annexure-2 and as per the provisions contained under the Act, the appeal also lies to the said Opp. Party No.3, no fruitful purpose will be served by directing the Petitioner to prefer an appeal against the order of termination before the authority who had directed for such termination of the Petitioner. Not only that, in view of the long pendency of the Writ Petition before this Court, for the last 14 years, this Court is of the opinion that after keeping the matter pending for so many years, it is not just and proper to relegate the Petitioner to the appellate authority at this point of time. 10.4. It is also found from the record that after being placed under suspension vide order dt.12.02.2008, the Governing Body of the College in its proceeding dt.08.03.2009 though resolved to allow the Petitioner to join in his duty and accordingly the Page 14 of 17 // 15 // Secretary of the College vide Annexure-5 permitted the Petitioner to join, but the Petitioner was not allowed to join by the Principal of the College even though he submitted his joining on 14.03.2009. Not only that, the order passed by the Opp. Party No.4 on 28.10.2022 was also not acted upon by the Principal of the College by allowing the Petitioner to join in his duty. Even though the Petitioner in W.P.(C )No.31115 of 2022 has challenged the order dt.28.10.2022 so issued by the Sub-Collector, but this Court finds that the Writ Petition in W.P.(C ) No.31115 of 2022 was never admitted with issuance of notice and no interim order is also there. 10.5. It is also found from the record that the Petitioner in W.P.(C ) No.31115 of 2022 though contends that basing on letter dt.25.03.2010 so issued by Opp. Party No.3, under Annexure-5, the Petitioner was appointed vide order dt.07.05.2010 but from the documents filed by the said Petitioner pursuant to the order passed by this Court on 06.04.2023, it is found that much prior to issuance of Annexure-5 in W.P.(C ) No.31115 of 2022, the Principal of the College issued an advertisement on 11.11.2009 and the Petitioner in terms of the said advertisement appeared the interview for the post of Lecturer in English and was appointed vide order dt.07.05.2010. Therefore, it is the view of this Court that prior to receipt of Annexure-5, since the Principal Page 15 of 17 // 16 // of the College suo motu issued the advertisement and conducted the interview, the said selection process is not sustainable in the eye of law. No document has also been filed by the Petitioner in W.P.(C ) No. 31115 of 2022 showing the permission accorded to the Principal by the Governing body of the college permitting him to issue such an advertisement on 11.11.2009. Since the Petitioner in W.P.(C ) No.31115 of 2022 has been appointed without facing due selection process, the appointment of the Petitioner as per the considered view of this Court is also not legal and justified. Basing on such an order of appointment, the Petitioner in W.P(C ) No.31115 of 2022 is not entitled to get any relief. 10.6. Since the Petitioner in W.P.(C ) No.15246 of 2009, in complete violation of the Principle of natural justice was terminated from his service vide order under Annexure-4 basing on the direction issued under Annexure-2, this Court is inclined to quash the order under Annexures-2 & 4 and quash the same accordingly. This Court while allowing the allowing the prayer made in W.P.(C ) No.15246 of 2009, dismiss the Writ Petition in W.P.(C ) No.31115 of 2022. It is needless to mention that in view of the order passed by the Sub-Collector-cum-Special Officer on 28.10.2022, the Principal of the College is directed to allow the Petitioner in Page 16 of 17 // 17 // W.P.(C ) No.15246 of 2009 to join in his work within a period of fifteen(15) days from the date of receipt of this order. Both the Writ Petitions are accordingly disposed of. The photocopy of this order be placed in the connected case i.e. W.P.(C ) No.3115 of 2022. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 27th June, 2023/sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: AUTHENTICATION OF ORDER Location: hIGH cOURT OF ORISSA, CUTTACK Date: 03-Jul-2023 18:23:27 Page 17 of 17