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2014 DIGILAW 333 (ORI)

Gautam Rana v. State of Orissa

2014-05-15

B.R.SARANGI

body2014
JUDGMENT:- B.R. SARANGI, J. The Petitioner has filed this application challenging the Judgment dated 08.05.1992 passed by the Presiding Officer, State Education Tribunal, Bhubaneswar dismissing the appeal filed under Section 10-A of the Orissa Education Act, 1969 read with Rule 22 of the Orissa Education (Recruitment & Conditions of Service of Teachers & Members of the Staff of Aided Educational Institutions) Rules, 1974 (in short the "Rules, 1974") on the ground that the same is barred by limitation as well as hit by principles of constructive res judicata. 2. The short fact of the case is that Laramba High School, Laramba located in the district of Sambalpur is an Aided Educational Institution within the meaning of Section 3(b) of the Orissa Education Act. Following due procedure of selection, the Petitioner was selected for the post of Junior Clerk & issued with an appointment order pursuant to which he joined in the said post on 20.01.1976. In course of time, his appointment was approved by the Inspector of Schools & he was receiving the salary under the grant-in-aid scheme. But while he was continuing, there was some misunderstanding between himself & the Secretary regarding certain allegation against him to the extent of misappropriation of School funds in consequence thereof the Managing Committee forced him to resign & compelled him to submit the resignation on 26.07.1983. Before expiry of 30 days of the submission of resignation, the Managing Committee accepted the resignation submitted by the Petitioner on 26.7.1983. But ii is stated that acceptance of such resignation has also been duly acknowledged by the Petitioner by registered post. It is stated that he has submitted an application on 01.08.1983 for withdrawal of his resignation but in spite of that the Secretary has illegally accepted the same in contravention of Rule 18 of the Rules, 1974 & he has also not been permitted to discharge his duty in the School though at no point of time the order of acceptance of resignation was communicated to him. 3. 3. Learned State Education Tribunal while adjudicating Appeal No.1 of 1990 in its Judgment dated 18.5.1992 in para 9 has categorically held that acceptance of resignation & relieving the Appellant (Petitioner herein) before the statutory period of one month is contrary to Rule 18, of the Rules, & prior approval of the Inspector of Schools as contemplated under Section 10-A of the Orissa Education Act, in short, "the Act" being illegal, the Appellant (Petitioner herein) is deemed to be continuing as Junior Clerk of the said school. While reaching at such a finding, on merits Learned Tribunal rejected the appeal on the ground that it is barred by limitation under Section 10- A(3) of the Act & in paragraph 9 of the Judgment stated that the management accepted the resignation submitted by the Appellant (Petitioner herein) on 4.8.1983 & the same was communicated to him in writing, which he received on 9.8.1983. Therefore, the period of limitation would run from 9.8.1983 when the order of the so-called termination was received by the Appellant (petitioner herein) & not from 2.9.1989, the date when he received the communication from the Inspector of Schools about the appointment & approval of Opp. Party No.4. Therefore, the appeal is barred by time & on this score, it is liable to be dismissed in limine. Apart from the same considering the other aspect, the appeal is hit by the principle of constructive res judicata. It is stated that being aggrieved by the order of termination, the Appellant (petitioner herein) preferred Appeal No.25 of 1983, but the same was dismissed. In the circumstances, the appeal on the very same fact, on the very same cause of action between the same parties is hit by the principles or constructive res judicata. Therefore, both on the ground of limitation as well as on the ground of constructive res judicata, Learned Tribunal dismissed the appeal. Hence, this writ application. 4. Mr. J.K. Rath, Learned Senior Counsel appearing for the State vehemently argued that the letter of resignation which was submitted by the Petitioner on 26.07.1983 is only a desire to relinquish the post as the same is to take effect only after expiry of 30 days from the date of letter of resignation as contemplated under Rule 18 of the Rules, 1974. If such resignation letter has been withdrawn' before expiry of the 30 days period, the acceptance of resignation within that 30 days would amount to termination. Before the service of the Petitioner was terminated, no prior approval in writing from the Inspector of Schools as required under Section 10-A of the Act was obtained nor was there any proceeding initiated against him as required under Rule 22 of the Rules, 1974 since termination of service amounts to punishment as provided under the said Rules. Therefore, the action taken by the Management has to be set aside. Since no order of approval of the termination has been communicated, & the post of clerk was filled up six years after the resignation on 16.01.1989, the Petitioner filed writ application bearing OJC No. 3010 of 1989 praying, inter alia, for a declaration that Petitioner is continuing in service. It was further stated that since the Petitioner has not given voluntary resignation & the resignation has been accepted within 30 days even after such resignation was sought to be withdrawn, the Petitioner prayed for quashing of the appointment of Opp. Party NO.4. On 15.11.1989, this Court directed that in case the Inspector of Schools approved the appointment of Opp. Party No.4, he shall communicate the copy of the order to the Petitioner. Since the approval has not been made, the writ application was not entertained. The approval of appointment of the Opp. Party NO.4 was communicated to the Petitioner on 19.12.1989. Since there was no approved post of clerk In the institution & the appointment of the Opp. Party NO.4 was approved by the Inspector of Schools & thereby the services' of the Petitioner were terminated, the Petitioner approached the Learned State Education Tribunal under Section 10-A of the Act read with Rule-22 of the Rules, 1974. To substantiate his contention, he has relied upon the Judgments of this Court in Managing Committee, Orissa Police High School v. Rasbehari Patnaik & ors; 47 (1979) CLT 517; Sri Kumuda Ranjan Pattnaik v. State of Orissa & ors, OJC No. 822 of 1986 decided on 17.09.1991; Dhaneswar Nayak v. State of Orissa, 62 (1986) CLT 60; Naba Kishore Behera v. State of Orissa & ors, OJC No. 2311 of 1988 decided on 23.01.1992 & in Smt. Namita Dhal v. State of Orissa & ors, 1994 (II) OLR 550. 5.The Managing Committee, Opp. 5.The Managing Committee, Opp. Party No.3 has also filed counter affidavit reiterating the fact that the Petitioner has picked up cause of action from the date of approval of appointment of Opp. Party NO.4 against the post, which was lying vacant since 1983 after acceptance of resignation after waiting for a period of six years. The Petitioner preferred Appeal NO.25 of 1983, which was also withdrawn by him for the self-same cause of action between the self- same parties. The admission of the Petitioner & paying back the entire misappropriated amount without protest proves his guilt beyond all reasonable doubt & preponderance of all probabilities. It is further stated that the resignation submitted by the Petitioner having been accepted by Opp. Party No.3 on 1.8.1983, the same was challenged before the Learned Tribunal in Appeal NO.25 of 1983, which was dismissed on the basis of the petition filed by the Petitioner not to proceed with the case. For the self-same cause of action again he agitated before the Learned Tribunal in Appeal No.1 of 1990 seven years later & therefore, the Learned Tribunal has rightly dismissed the appeal both on the ground of limitation & on the plea of constructive res judicata. The order of the Learned Tribunal dated 18.5.1992 is under challenge in this Writ Petition, which was filed in December, 1993, almost after 10 years from the date of cause of action, which is the subject matter of the earlier Appeal No.25 of 1983,. OJC No. 3010 of 1989 & Appeal No. 1 of 1990. Therefore, the Learned Tribunal has not committed any illegalities or irregularities in dismissing the appeal & this Court, therefore, should not interfere with the same. 6. Mr. S.K. Purohit, Learned Counsel for the Opp. Party NO.4 also reiterated the same facts stating that the Petitioner has resigned from his job as Clerk on 26.7.1983, which has been accepted by the Managing Committee, Opp. Party No.3 on 4.8.1983, which the Petitioner challenged before the Learned State Education Tribunal in Appeal No.25 of 1983. But on 17.2.1984 he filed a petition stating that he does not want to proceed with the appeal & accordingly, the Appeal No.25 of 1983 was dismissed as withdrawn. Thereafter, the Petitioner never joined in the School & the post remained vacant till 11.1.1989, i.e. for about five & half years after acceptance of resignation by Opp. But on 17.2.1984 he filed a petition stating that he does not want to proceed with the appeal & accordingly, the Appeal No.25 of 1983 was dismissed as withdrawn. Thereafter, the Petitioner never joined in the School & the post remained vacant till 11.1.1989, i.e. for about five & half years after acceptance of resignation by Opp. Party No.3 & five years after the appeal challenging the acceptance of resignation was dismissed as withdrawn by the Learned 'State Education Tribunal. Therefore, on the basis of the approval of appointment of Opp. Party No.4, the Petitioner cannot approach the Learned State Education Tribunal by preferring Appeal NO.1 of 1990. In view of that since the Petitioner preferred appeal at a belated stage, the Learned Tribunal has rightly rejected Appeal No.1 of 1990 on the ground of limitation. At the same time, if for the self- same cause of action, the appeal having been preferred, the entire proceeding is barred by constructive res judicata, thereby the impugned order has been passed in conformity with the provisions of law & the same should not be interfered with. In addition to that, it is stated that the Opp. Party No.4 was duly selected following an interview dated 2.9.1986 wherein he stood first & the said list was forwarded to the Inspector of Schools, who directed to give appointment, pursuant to which the Opp. Party No.3 issued appointment order in favour of the Opp. Party No.4 on 9.1.1989, which was confirmed vide resolution No.2 dated 16.1.1989 by the Managing Committee & the appointment of Opp. Party No.4 was thus approved by the Inspector of Schools vide Memo No.2468 dated 17.3.1989 under Annexure-2. The appointment of Opp. Party No.4 being regular & an approved one, the Petitioner should not be allowed to unsettle the settled position by initiating litigation against Opp. Party No.4. It is further urged that there is no cause of action available for the Petitioner to move Appeal No.1 of 1990 before the Learned Tribunal & in consequence thereof, the present writ application is also not maintainable. Party No.4. It is further urged that there is no cause of action available for the Petitioner to move Appeal No.1 of 1990 before the Learned Tribunal & in consequence thereof, the present writ application is also not maintainable. Since the Petitioner had withdrawn Appeal No.25 of 1983 challenging his termination, which was ultimately dismissed by the Learned Tribunal & subsequently, when the Petitioner filed a writ application bearing OJC No. 3010 of 1989, which was also dismissed, he has no cause pf action to approach this Court against the Judgment passed by the Learned Tribunal in Appeal No.1 of 1990. Apart from the same, the termination order, which had been challenged 'in Appeal No.25 of 1983, which was dismissed because of the petition filed by the Petitioner not to press the same, by way of principle of waiver, he has waived his right to continue in service. Therefore, the subsequent challenge made to the appointment/approval of Opp. Party No.4 is absolutely misconceived one. Therefore, the Learned Tribunal has rightly rejected Appeal No.1 of 1990 on the ground of limitation & constructive res judicata. To substantiate his contention he has relied upon the Judgment of this Court in Sri Durga Prasad Sahoo v. S.D.O. & Election Officer, Kamakhyanagar & ors, 60 (1985) CLT 114; Smt. Dipti Swain V. State of Orissa & Ors, 83 (1997) CLT 592 & Krishna Bahadur v. Purna Theatre & others, (2004) 8 SCC 229 . 7. Mr. A.K. Pandey, Learned Standing Counsel for School & Mass Education Department supports• the Judgment passed by Learned Education Tribunal & states that the same should not be interfered with at this stage, as the same is passed in due exercise of power by the authorities concerned. 8. From the above factual contentions raised by the parties, the admitted fact is that the Petitioner who was continuing as Junior Clerk in an aided educational institution submitted his resignation on 26.07.1983, which was accepted by the Managing committed on 01.08.1983 & the acceptance of the resignation was also duly communicated by the Managing committee by registered post with A.D. on 03.08.1983 which was delivered to him on 04.08.1983. The resignation having been accepted & acted upon whether the same can be permitted to be withdrawn at the instance of the Petitioner before expiry of the 30 days period as contemplated under Rule 18 of the Rules, 1974 & more so, the Petitioner had earlier approached the Tribunal by filing an appeal bearing No.25 of 1983, which was dismissed as withdrawn on 17.02.1984 & subsequently he approached this Court by filing O.J.C. No. 3010 of 1989 after six years of the cause of action & while rejecting the prayer of the Writ Petition to declare the acceptance of resignation as illegal, this Court made an observation directing the Inspector of Schools to supply the copy of the approval of the appointment given by Inspector in favour of new incumbent in the Petitioner's post. It is admitted fact that after 4.9.1983 the Petitioner had never joined in the school. Therefore, the post remained vacant till 11.1.1989, i.e. for about 5V2 years after acceptance of resignation by Opp. Party No.3 & 5 years after the appeal challenging acceptance of resignation was dismissed as withdrawn by the Learned State Education Tribunal. The Opp. Party No.4 was selected in the interview dated 2.9.1986 wherein, he stood first & the select list was forwarded to the Inspector of Schools, who directed to appoint the Opp. Party No.4, basing upon which the Opp. Party NO.3 appointed the Opp. Party No.4. on 9.1.1989, which was confirmed by the Managing Committee vide resolution No.2 dated 16.1.1989. The appointment given was duly approved by the Inspector of Schools, Sambalpur vide his memo No. 2468 dated 17.3.1989 vide Annexure-2. The Opp. Party No.4 having been appointed against a vacancy available, no cause of action survives for the Petitioner to assail the same as his resignation has been duly accepted & the same has been acted upon by the authorities. However, in the Writ Petition filed by the Petitioner in OJC No. 3010 of 1989, which was preferred six years after the order of termination, no notice was issued to the Opp. Party No.4 & the said writ application was dismissed by this Court with the observation to provide a copy of the approval order. Thereafter, the Petitioner preferred Appeal No.1 of 1990 before the Learned Tribunal, which was dismissed on the ground of limitation as well as constructive res judicata. 9. Party No.4 & the said writ application was dismissed by this Court with the observation to provide a copy of the approval order. Thereafter, the Petitioner preferred Appeal No.1 of 1990 before the Learned Tribunal, which was dismissed on the ground of limitation as well as constructive res judicata. 9. With the above back ground of the case, now it is to be considered whether the appeal preferred by the Petitioner bearing Appeal No.1 of 1990 is barred by limitation or hit by the principle of constructive res judicata. 10. The sole contention that the termination of the Petitioner is in violation of Section 10-A of the Act, which states that the services of a teacher & other members of the staff of aided educational institution shail not be terminated without obtaining prior approval in writing of the Circle Inspector of Schools having jurisdiction in case of a teacher & other members of the staff of the school. More so, it is stated that it also contravenes Rule 18 of the Rules, 1974. Therefore, the termination of the Petitioner is bad in law in view of the Judgments referred in Managing Committee, Orissa Police High School (supra), Sri Kumuda Ranjan Pattnaik (supra), Dhaneswar Nayak (supra), Nabakishore Behera (supra) & Namita Dhal (supra). if the termination itself is illegal having not been in conformity with the provisions of Section 10-A read with Rule 18, then in that case, appeal lies to the Tribunal within a period of one month from the date of constitution of the Tribunal as per the provisions contained in Section 10-A(3) of the Act. If the Petitioner's contention is accepted that his termination is bad due to noncompliance of the provisions contained under Section 10-A read with Rule 18 of the Rules, 1974, then remedy lies with him to prefer an appeal before the Learned Education Tribunal under Section 10-A (3) of the Act & as such, the Petitioner has preferred appeal before the Learned Education Tribunal bearing Appeal No.25 of 1983. Since Petitioner filed an application on 17.2.1984 intending to withdraw the appeal, the said appeal was dismissed as withdrawn. Since Petitioner filed an application on 17.2.1984 intending to withdraw the appeal, the said appeal was dismissed as withdrawn. Once the Petitioner has expressed his desire not to proceed with Appeal No.25 of 1983, in which he has assailed his order of termination, he waives his right to challenge the subsequent action of the authorities with regard to filling up of the post & approval of "the new" incumbent against such post & as such, at a belated stage, the Petitioner cannot be permitted to take any steps, which is barred by limitation. In the present case, when Appeal No.25 of 1983 has been dismissed after waiting for a period of more than 51/2 years, the post lying vacant was filled up by following due procedure of selection on 9.1.1989, which was confirmed by the resolution of the Managing Committee on 16.1.1989 & was approved by the Inspector of Schools on 17.3.1989, the Petitioner cannot be permitted to challenge such appointment of Opp. Party No.4 at belated stage by preferring Appeal No.1 of 1990 before the Learned Tribunal. Therefore, the Learned Education Tribunal has rightly dismissed the appeal on the ground of limitation because the Petitioner has no cause of action to move the Learned Tribunal once he has waived his right by virtue of dismissal of Appeal No.25 of 1983 by the Education Tribunal. For the self same cause of action preferring the Appeal No.1 of 1990 before the Education Tribunal after long lapse of more than 51/2 years, the same has been rejected on the ground of limitation. In that view of the matter, the Learned Tribunal has not committed any illegality or irregularity in dismissing the claim of the Petitioner. 11. Mr. J.K. Rath, Learned Senior Counsel has placed reliance upon the Judgment of the Apex Court in Srikantha S.M. v. Bharath Earth Movers Ltd., (2005) 8 SCC 314 . In that case, the question of resignation was under consideration & the Apex Court in paras 12 & 13 has held as follows: "12. "Now, let us consider the controversy on merits. The term "resignation" has not been defined in the Service Rules. According to the dictionary meaning, however, "resignation" means spontaneous relinquishment of one's own right. It is conveyed by the Latin maxim Resignatio est juris propii spontanea refutation. (Resignation is a spontaneous relinquishment of one's own right). "Now, let us consider the controversy on merits. The term "resignation" has not been defined in the Service Rules. According to the dictionary meaning, however, "resignation" means spontaneous relinquishment of one's own right. It is conveyed by the Latin maxim Resignatio est juris propii spontanea refutation. (Resignation is a spontaneous relinquishment of one's own right). In relation to an office, resignation connotes the act of giving up or relinquishing the office" or "to leave the job" or "to leave the position". "To cease to hold office" or "to lose hold of the office" implies to "detach", "unfasten", "undo" or "untie" "the binding knot or link" which holds one to the office & the obligations & privileges that go with it. 13. ln Union of India v. Gopal Chandra Mishra, (1978) 2 SCC 301 , this Court held that a complete & effective act of resigning an office is one which severs the link of the resignor with his office & terminates its tenure." 12. The aforesaid Judgment is squarely applicable to the case of Opp. Party No.4 .instead of the Petitioner. Once the Petitioner has submitted his resignation that itself amounts to spontaneous relinquishment of one's own right. Resignation connotes the act of giving up or relinquishing the office. Therefore, once the Petitioner relinquished the office, in that case acceptance of resignation is merely a follow up action, which has been done in his case. 13. Thus, Rule 18 of the Rules, 1974 can only be applicable at a stage where the resignation has not been accepted or acted upon. But once resignation has been submitted, the same has been acted upon & consequentially there is no need of waiting for 30 days period to act on the same because on his own volition, the Petitioner has relinquished his job & accordingly, he has ceased to hold the office. Therefore, the Judgment of the Apex Court in Srikantha S.M. (supra) supports the case of Opp. Party No.4 in stead of the Petitioner. 14. Now the question that comes for consideration is whether any cause of action survives for the Petitioner to approach the learned Education Tribunal by preferring Appeal NO.1 of 1990. 15. In A.V.M. Sales Corporation v. Anuradha Chemicals Private Limited, (2012) 2 SCC 315 , considering Section 20(c) of the CPC the Apex. Party No.4 in stead of the Petitioner. 14. Now the question that comes for consideration is whether any cause of action survives for the Petitioner to approach the learned Education Tribunal by preferring Appeal NO.1 of 1990. 15. In A.V.M. Sales Corporation v. Anuradha Chemicals Private Limited, (2012) 2 SCC 315 , considering Section 20(c) of the CPC the Apex. Court held that cause of action comprises bundle of facts which are relevant for determination of the lis between the parties. In Kandhimalla Raghavaiah & Company v. National Insurance Company & Anr, (2009) 7 SCC 768 , the Apex Court held as follows: "The term" cause of action" is neither defined in the Act nor in CPC, but is of wide import. It has different meaning in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as "bundle of facts", which if proved or admitted entitle the Plaintiff to the relief prayed for. "Cause of action" is cause of action which gives occasion for & forms the foundation of the suit, for which the suit is brought." In Rajiv Modi v. Sanjay Jain, (2009) 13 SCC 241 , the Apex Court held as follows: "Cause of action is a fundamental element to confer jurisdiction upon" any Court & which has to be proved by Plaintiff to support his right to a Judgment of the Court. To constitute territorial jurisdictional whole or a part of "cause of action" must have arisen within territorial jurisdiction of the Court & same must be decided on basis of averments made in complaint without embarking upon enquiry as to correctness or otherwise of the said facts." 16. While considering Article 226(1) & (2) vis-a-vis Section 20(C) of the CPG, 1908, the Apex Court in Eastern Coalfields Ltd. V. Kalyan Banerjee, (2008) 3 SCC 456 held as follows: "Cause of Action", for the purpose of Article 226(2) of the Constitution of India, for all intent & purport, must be assigned the same meaning as envisaged under Section 20(C) CPC. It means a bundle of facts which are required to be proved. The entire bundle of facts pleaded, however, need not constitute a cause of action as what is necessary to be proved is material facts whereupon a Writ Petition can be allowed." 17. It means a bundle of facts which are required to be proved. The entire bundle of facts pleaded, however, need not constitute a cause of action as what is necessary to be proved is material facts whereupon a Writ Petition can be allowed." 17. If the case of the Petitioner is considered in the backdrop of the admitted facts in that case the entire act of the Petitioner is barred by constructive res judicata because for the self-same cause of action, the Petitioner had earlier approached the Learned Tribunal by filing Appeal No.25 of 1983, Which had been withdrawn as not pressed & accordingly, the same was dismissed & for the self-same cause of action, if the Petitioner preferred Appeal No.1 of 1990 when approval had been made in favour of Opp. Party No.4, who has been appointed as Junior Clerk as against the vacant post in that case Appeal No.1 of 1990 is also barred by constructive res judicata. As such, by withdrawal of Appeal No.25 of 1983, the Petitioner has waived his right, which cannot be permitted to be restored by preferring subsequent Appeal No.1 of 1990, as there is no cause of action available for him. 18. In A.P.S.R.T.C. v. S. Jayaram, (2004) 13 SCC 792 , the Apex Court held that to constitute waiver there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right or conduct such as warrants an inference of the relinquishment of a known right or privilege. In Associated Hotels of India Ltd. v. S.B. Sundar Ranjit Singh, AIR 1968 SC 933 , the Apex Court held that a waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights & of facts enabling him to take effectual action for the enforcement of such rights. Applying such principle in the present context, it appears that the Petitioner knowing fully well that he has assailed his order of termination in Appeal No.25 of 1983 waived his known right by filing a petition not to press the same, which is an intentional relinquishment of a known right, he cannot subsequently turn around & challenge the same by filing subsequent Appeal No.1 of 1990 before the Learned Education Tribunal. 19. 19. In that view of the matter, this Court is of the considered opinion that the Learned Tribunal has not committed any illegality or irregularity in dismissing the appeal on the ground of limitation & constructive res judicata. Accordingly, the writ application fails & the same is dismissed.