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Orissa High Court · body

2018 DIGILAW 74 (ORI)

State of Odisha v. Prabhat Kumar Patnaik

2018-01-12

K.R.MOHAPATRA, S.PANDA

body2018
JUDGMENT S. PANDA, J. - The order dated 25.08.2016 passed by learned Orissa Administrative Tribunal in O.A. No.85 of 2014/O.A. No.1146 (C) of 1998 is assailed by the State authorities in this writ petition, wherein the Tribunal directed to treat the applicant to be in the employment of the college as on 01.04.1990 and a Government employee and to extend all service and financial benefits, as due and admissible. The Tribunal has further directed that the applicant will not be entitled to back wages for the period he was out of employment, but shall only be entitled to such benefit notionally. 2. Learned Standing Counsel for School & Mass Education Department submits that no document was there before the Tribunal to come to a conclusion that the applicant was an employee of the College as on 01.04.1990.The authenticity of the documents which were produced by the applicant before the Tribunal was not proved. Therefore, the Tribunal should not have relied on such documents and issued the direction as indicated above. 3. Learned Counsel for the opposite party No.1 on the other hand supported the impugned order and submitted that in spite of several adjournments given by the Tribunal, the State Authorities did not chose to file any counter rebutting the genuineness of the documents filed before the Tribunal. Therefore, the State Authorities are stopped to raise such an objection for the first time in this writ petition. He further submitted that relying on such documents, i.e the Attendance Register and Acquittance Roll, other similarly situated persons have been extended with all service and financial benefits as Government employee. Therefore objection so far as genuineness of such documents in case of the applicant is uncalled for. The Tribunal after going through all such facts has passed a reasoned order, which should not have been interfered with. 4. The present opposite party No.1 being the applicant has approached the Tribunal in O.A. No.85/2014 (O.A. No.1146 (C) of 1998) with the following facts : He was appointed as Library Attendant in Nalini Devi Women’s College of Education, Bhubaneswar pursuant to the order dated 29.12.1988 on 89 days basis and thereafter was absorbed on permanent basis on a consolidated salary of Rs.800/- per month as per the order dated 01.05.1989.Since there were mismanagement and disturbance in the College, it was taken over by the Government by an ordinance dated 27.06.1991. The said ordinance was thereafter converted to an Act, namely Nalini Devi Women’s College of Education (Taking Over Management) Orissa Act 24 of 1991. Accordingly an Administrator was appointed to run the administration of the institution. Pursuant to the provision under Section 7 of the Act, the teaching and non-teaching staff who were there in the employment of the College as on 01.04.1990 shall be deemed to have been absorbed in Government service. Accordingly names of the employees who were placed in the audit report as well as notice dated 11.07.1991 of the administrator were treated as Government servant. Since the name of the applicant and some others did not find place in the audit report they were not treated as the employees of the College. Therefore, the applicant preferred O.A. No.1761 of 1991. Likewise, other similarly situated employees preferred several other Original Applications. All such Original Application were taken up and disposed of by a common order dated 20.02. 1997 directing the State authorities to constitute a High Level Committee to enquire into the matter and take follow up action on the basis of the report of the Committee. Accordingly a Committee was constituted and the applicant submitted the documents in support of his claim that he was an employee of the College before 01.04.1990.The Committee submitted its report on 07.01.1997 stating that there was no credible materials on record to show that the applicant was in the employment of the College as on 01.04.1990. After the report was submitted, the Government rejected the claim of the applicant. Hence, the applicant approached the Tribunal in O. A. No.85 of 2014. 5. The stand of the applicant before the Tribunal was that the documents produced by the applicant before the Committee were not taken into consideration by the Committee. According to him, basing on the self same documents other employees, such as Bimbadhar Senapati,Ajodhya Narayan Mohanty and Pabani Behera, was approached the Tribunal ;have been extended with the benefit of the employment in the College. His further stand was that the State authorities preferred W.P. (C) No.18187 of 2015 against the order passed by the Tribunal in the case of Pabani Behera, i.e. O.A. No.3283 (C) of 1998 and the same was dismissed by this Court. The applicant placed reliance on the acquittance roll showing that the applicant has received salary during the relevant period. 6. The applicant placed reliance on the acquittance roll showing that the applicant has received salary during the relevant period. 6. No counter was filed by the State respondents before the Tribunal objecting the documents filed by the applicant before the Tribunal. 7. The Tribunal has taken into consideration the fact that the documents relied upon by the applicant were also relied upon by one Pabani Behera in O.A. No.3283 of 1998 and basing on such document, the Tribunal held that Pabani Behera was in the employment of the College as on 01.04.1990.The Tribunal also observed that if the acquittance roll was not genuine, respondents could have produced the genuine documents to dispel the claim of the applicant. Since the Tribunal had already observed in case of other similarly employees to be in employment of the College as on 01.04.1990, there is no reason to discard those documents in respect of the applicant. The respondents in the Original Application have not filed their counter nor they have produced any material before the Tribunal for which adverse inference was drawn by the Tribunal and accordingly, the Tribunal passed the impugned order allowing the Original Application accepting the said acquittance roll produced by the applicant. 8. Learned Standing Counsel for School & Mass Education Department submitted that the applicant was appointed on ad hoc basis vide order No.NDWCE/S/P/21 dated 29.12.1988. Peculiarly the call letter for the interview bears number 23 dated 17.12.1988, where as the subsequent letter of appointment dated 29.12.1988 bears the letter No.21. He further submitted that the Tribunal committed error relying upon a photo copy of the said acquittance roll. The inventory made reveals that no such acquittance roll was available in the College. Therefore, the observation made by the Tribunal that there is no reason to discard those documents and take a different view, needs interference by this Court. He further relies upon the principle of negative equality and submitted that once a wrong has been committed in respect of one person, the same cannot be repeated for other persons. 9. As the charges of Nalini Devi Women’s College was not handed over, pursuant to the order of the Court, inventory was made in presence of the Magistrate. In the list of inventory, no acquittance roll was seized. A copy of such inventory was also produced before this Court, which has not been disputed by the opposite party applicant. 9. As the charges of Nalini Devi Women’s College was not handed over, pursuant to the order of the Court, inventory was made in presence of the Magistrate. In the list of inventory, no acquittance roll was seized. A copy of such inventory was also produced before this Court, which has not been disputed by the opposite party applicant. Therefore, the genuineness of acquittance roll, which was produced before the Tribunal and accepted in case of Pabani Behera, in absence of any counter filed by the respondents, cannot be accepted on its face value, as a doubt arises regarding the genuineness of those documents. In view of the inventory made in the institution to take charge of it and no acquittance roll was found in such inventory, which has not been considered by the Tribunal while passing the impugned order and as the genuineness of such acquittance roll which was produced by the applicant is in question, this Court sets aside the impugned order and remits the matter back to the Tribunal for reconsideration of the Original Application filed by the applicant giving liberty of hearing to the parties. It is open to the petitioners to file those materials before the Tribunal, which shall be considered in accordance with law, at the time of hearing of the Original Application. The writ petition is accordingly disposed of. K. R. MOHAPATRA, J. I agree. Petition disposed of.