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2007 DIGILAW 132 (ORI)

Rusinath Parida v. Collector, Cuttack

2007-02-25

I.M.QUDDUSI, PRADIP MOHANTY

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JUDGMENT I. M. QUDDUSI, J. — This writ petition has been filed against the impugned order dated 28.10.2005 passed in R.P. Case No.26 of 2005 by the Chairman of the Orissa Administrative Tribunal, Bhubaneswar, dismissing the same which was filed for recalling the order of dismissal of O.A. No.562 of 1991 which was filed by the petitioner against his removal from service. 2. The main contention of the learned counsel for the petitioner is that the aforesaid O.A. was liable to be heard by the Division Bench of the Tribunal and not by the Single Member. Earlier the O.A. was listed for hearing on 05.11.1998 before the Division Bench of the Tribunal comprising of the Vice-Chairman and the Member (Judicial) and on that date the following order was passed by the Tribunal : “Order No.27 Dated 5.11.98 Learned Counsel for the applicant submitted that he has received the counter today filed by learned standing counsel for State and prays for time to go through the same. Prayer is allowed. List it after one week. Sd/- P.C. Patro Sd/- C. Narayanaswamy Member (Judl.) Vice-Chairman.” 3. Thereafter, the case was listed before the Vice-Chair¬man and Member (Judicial) on 24.11.1998 but since its turn could not reach, the same was adjourned. Thereafter, the same was listed on 11.03.1999 and 22.03.1999 but the same was adjourned. On 31.03.1999 when the case was listed no one appeared and hence the same was dismissed for default by order of the Chairman which is quoted as under : “Order No.31 Dated 31.3.99 None appears when called. Hence this case is dismissed for default. Send copies. Sd/-B.N. Patnaik Chairman.” 4. Thereafter restoration application was filed which was registered as Misc. Petition No.357 of 1999 but on 19.6.2000 again no one appeared on behalf of the applicant when the case was called. Hence, the same was dismissed for non appearance of the applicant by the Chairman. Thereafter the petitioner moved a review petition, which was numbered as R.P. No.26 of 2005. The same was dismissed vide order dated 28.10.2005. 5. Petition No.357 of 1999 but on 19.6.2000 again no one appeared on behalf of the applicant when the case was called. Hence, the same was dismissed for non appearance of the applicant by the Chairman. Thereafter the petitioner moved a review petition, which was numbered as R.P. No.26 of 2005. The same was dismissed vide order dated 28.10.2005. 5. From the nature of the case, i.e., removal from service and on perusal of the earlier order it appears that the case was being listed before the Division Bench of the Tribunal and there¬fore the contention of the learned counsel for the petitioner that the case was to be heard by the Division Bench and was not liable to be heard only by a Single Member cannot be ruled out, more so when the learned Chairman of the Tribunal vide impugned order dated 28.10.2005 has not decided the issue as to whether the case was to be heard by the Division Bench or by the Single Member and if it was to be decided by the Division Bench, it could not have been dismissed in default by the Single Member. 6. In view of the above mentioned facts, if the initial order dated 31.03.1999 dismissing the above mentioned O.A. for default was not liable to be passed by the Single Member but was liable to be passed by the Division Bench and the case was wrong¬ly listed before the Single Member, the order dismissing the O.A. in default was a non est order in the eye of law and therefore the O.A. was liable to be restored to its original number. 7. Since the above aspect of the matter has not been considered by the Tribunal, the impugned order is liable to be set aside and the matter is liable to be remanded for fresh con¬sideration. 8. In the result, the writ petition is allowed in part. The impugned order dated 28.10.2005 passed in R.P. No.26 of 2005 is quashed and the matter is remanded for fresh consideration. The Tribunal shall consider as to whether the matter regarding removal from service challenged in the O.A. was to be heard by the two Member Bench (Division Bench) of the Tribunal and if so, the order No.31, dated 31.03.1999 was a non est order and there¬fore, the Tribunal shall pass appropriate orders afresh accord¬ingly. PRADIP MOHANTY, J. : I agree. The Tribunal shall consider as to whether the matter regarding removal from service challenged in the O.A. was to be heard by the two Member Bench (Division Bench) of the Tribunal and if so, the order No.31, dated 31.03.1999 was a non est order and there¬fore, the Tribunal shall pass appropriate orders afresh accord¬ingly. PRADIP MOHANTY, J. : I agree. Petition allowed in part.