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2015 DIGILAW 106 (ORI)

Surendra Kumar Lenka v. State of Orissa

2015-02-19

B.R.SARANGI

body2015
JUDGMENT : B.R. Sarangi, J. The petitioners, who were appointed as Library Assistants and Store Keeper Nilasaila Mahavidyalaya, Jhirpani have filed these applications seeking for a direction to the Governing Body to comply the order dated 26.04.1990 passed by the Director Higher Education, Orissa in Annexure-3 and for extending all consequential service benefits as due admissible in accordance with law. Since all these three writ applications have common cause of action with similar order dated 26.04.1990, the same have been heard together and are disposed of by this common judgment. 2. The short fact of the case in hand is that Nilasaila Mahavidyalaya, Jhirpani in the district of Sundargarh is an aided Educational Institution within the meaning of Section 3 (b) of the Orissa Education Act, 1969 and service conditions of employees of such institution is regulated under the said Act and Rules framed thereunder. The petitioner in OJC No. 14122 of 1996 and OJC No. 690 of 1997, were appointed as Library Assistant in the department of Physics and Chemistry respectively and petitioner in OJC No. 14182 of 1996 was appointed as Store Keeper. Pursuant to the appointed orders issued by the Governing Body, they joined in the said college and discharged their duty. All on a sudden, without assigning reasons, their services have been terminated by the Principal In-charge-cum-Secretary of the Governing Body. It is stated that the said orders have been passed in violation of Section 10(A) of the Orissa Education Act, as before terminating the services of the petitioners prior approval of the Director under Section 10 (A) of Act has not been obtained. Therefore, the action of the authority is illegal and as such procedure envisaged under Rule-22 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 Rules has not been followed. Against the said order of termination, petitioners preferred appeal before the Director Higher Education, Orissa and after due adjudication, the Director vide impugned order dated 26.4.1990 in Annexure-3 held that the order of termination is in gross violation of the statutory provisions. Therefore, directed the Principal of the College to reinstate the petitioners in their former posts. Against the said order of termination, petitioners preferred appeal before the Director Higher Education, Orissa and after due adjudication, the Director vide impugned order dated 26.4.1990 in Annexure-3 held that the order of termination is in gross violation of the statutory provisions. Therefore, directed the Principal of the College to reinstate the petitioners in their former posts. In spite of the said order being passed on 26.04.1990, the petitioners have not yet been reinstated in service nor the order passed by the Director has been challenged by the Principal In-charge-cum-Secretary before any forum. Though the petitioners filed their representation to allow them to continue in their former posts in compliance to the order passed by the Director, the same has not been considered. Subsequently on 17.8.1991, the Governing Body of the College passed a resolution to consider the case of the petitioners and other similarly placed employees for their reinstatement in college. The said committee took a decision to reinstate five employees including the petitioners and accordingly the Sub-Collector, Panposh was directed to act on behalf of the Collector vide letter dated 25.3.1992. But there was a mistake in the said order which was rectified vide letter dated 27.4.1992 by substituting the name of the petitioner in OJC No. 14122 of 1996 in place of R.K. Das. But in spite of this, no action has yet been taken, hence these writ applications. 3. Mr. K.K. Swain, learned counsel for the petitioner strenuously urged that the termination order having been passed in gross violation of Section 10(A) of the Orissa Education Act read with Rule-22 and on consideration of the same, since the Director in appeal declared the order of termination as bad and directed for reinstatement in service, the Principal In-charge-cum-Secretary could not have sit tight over the matter. It is open to the Principal In-charge-cum-Secretary of the Governing Body to assail the order so passed by the Director before the appropriate forum and the order having not been challenged, it has reached its finality. Therefore the Principal In-charge-cum-Secretary of the Governing Body is duty bound to carry out the orders passed by the Director in letter and spirit. Unless and until the same is set aside by the appropriate forum, the orders remain in force and there is no justifiable reasons not to implement the same. Therefore the Principal In-charge-cum-Secretary of the Governing Body is duty bound to carry out the orders passed by the Director in letter and spirit. Unless and until the same is set aside by the appropriate forum, the orders remain in force and there is no justifiable reasons not to implement the same. Since the order impugned has reached its finality, the Principal In-charge-cum-Secretary of the Governing Body should comply the same. Due to non-compliance of the same, the petitioners have approached this Court by filing the present writ applications. To substantiate his contention he relied upon the judgment of this Court in Managing Committee, Orissa Police High School v. Rasbehari Pattnaik, 47 (1979) CLT 517, 4. Mr. S. Das, learned Addl. Standing Counsel supported the stand taken by the petitioners and stated that since the order of the Director Higher Education has not been challenged by opposite party no.3 in any forum, it has to be implemented by opposite party no.3 and all the benefits admissible to the petitioners has to be extended in accordance with law. 5. Mr. S. Jena on behalf of Mr. B. Routray, learned Senior Counsel appearing for the opposite party no.3 urged that the College being an aided educational institution from the academic session 1989, the Director Higher Education has no jurisdiction to entertain the appeal of any terminated employee and issue any direction to reinstate them. It is further urged that the petitioners have not been appointed by the Governing Body, therefore they are terminated on the ground that their appointment were totally irregular without following due procedure inasmuch as the Principal had never been authorized by the Governing Body to issue such order of appointment. Since the order of appointment has not been ratified by the Governing Body, the action taken by opposite party no.3 is wholly and fully justified and as such the order being without jurisdiction the same has not been implemented. More so, while considering the so called representation/appeal filed by the petitioners, no opportunity of being heard has been given to the Governing Body-opposite party no.3 and as such the order dated 26.04.1990 has never been communicated to the college authority. Therefore question of challenging the said order before the appropriate forum does not arise. Since the order impugned is absolutely without jurisdiction and illegal, the same has not been implemented by opposite party no.3. Therefore question of challenging the said order before the appropriate forum does not arise. Since the order impugned is absolutely without jurisdiction and illegal, the same has not been implemented by opposite party no.3. It is further urged that the order of termination has been passed under Section 10 (A) (1) read with Rule-22 and against the said order appeal lies under Section 10(A) (3) before the Tribunal within a period of one month from the date of receipt of the order. Instead of preferring appeal, the petitioners could not have approached this Court by filing the present writ applications. It is further urged that the ratio decided in Managing Committee, Orissa Police High School (supra) relied upon by the petitioners is not applicable to the present context. Therefore, seeks for dismissal of the writ applications. 6. In view of the aforesaid facts pleaded, it is to be considered whether opportunity of hearing to the parties has been given by the Director while passing the impugned order in Annexure-3. It is admitted fact that the petitioners were appointed and their services have been terminated in violation of provisions contained under Section 10 (A) (1) read with Rule-22 of the 1974 Rules. Against the said order, the petitioners have approached the Director, Higher Education for consideration of their grievance. The Director while passing the order in Annexure-3 has not given opportunity of hearing to opposite party no.3 by issuing notice. The impugned order in Annexure-3 having been passed without affording opportunity of hearing to opposite party no.3, there is violation of the principles of natural justice. The petitioners have relied upon the judgment in Managing Committee, Orissa Police High School (supra), wherein it is held that the Tribunal has jurisdiction to entertain the appeal preferred by opposite party no.1 in the said writ petition. It is held that the opposite party no.1, the employee of the school was thrown out of his employment in school only in consequence of order passed by the Managing Committee of school and thus being aggrieved by said order he has preferred appeal before the Tribunal, which is maintainable. But the ratio decided in the said case is not applicable to the present context. Therefore, the said judgment is distinguishable. But the ratio decided in the said case is not applicable to the present context. Therefore, the said judgment is distinguishable. But the factual backdrop of the case in hand is that the petitioners filed representation/appeal before the Director and while considering the said representation/appeal, the minimum requirement of compliance of principles of natural justice has not been complied with irrespective of whether the Director has jurisdiction to entertain such representation/appeal preferred by the petitioners. In the event, the Director has no jurisdiction then he could have also dealt with the same by affording opportunity to the Governing Body. 7. In view of the aforesaid facts and circumstances of the case, without delving into the merits of the case and without considering whether the Director has jurisdiction or not to entertain such representation/appeal, since no opportunity has given to opposite party no.3 and the impugned order has been passed, due to non-compliance of the principles of natural justice, this Court thinks it proper to set aside the order passed by the Director and remit the matter back to him to reconsider the same. 8. Accordingly, the order dated 26.04.1990 passed by the Director, Higher Education, Odisha vide Annexure-3 is hereby set aside and the matter is remitted back to the Director to reconsider the same by affording opportunity of hearing to the parties. All the parties are also at liberty to raise all such contentions as urged before this Court including the jurisdiction of the Director in accordance with law, if they are so advised. Needless to say, since it is an year old matter of the year 1990, this Court directs the Director, Higher Education, Odisha to dispose of the representation/appeal preferred by the petitioners on the basis of the materials available on record by affording opportunity of hearing to all the parties within a period of four months from the date of receipt of a certified copy of the judgment. 9. With the above observation and direction, the writ applications are disposed of.