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2021 DIGILAW 69 (ORI)

Bijayananda Naik v. Fakir Mohan University

2021-02-17

B.R.SARANGI

body2021
JUDGMENT Dr. B.R. Sarangi, J. - The petitioner, who was working as Professor and Head of Post Graduate Department of Environment Science, Fakir Mohan University, Balasore, has filed this writ petition seeking to quash the order dated 06.12.2008 in Annexure-9, so far as it relates to denial of financial claim for the period from 20.08.2007 to the date of his joining, i.e., 08.12.2008, and issue direction to the opposite parties to grant continuity in service and allow him arrear salary for the said period. 2. The factual matrix of the case, in hand, is that the petitioner, after completing his post graduation in the subject Zoology, did his Ph.D from Birla Institute of Technology Science at Pilani, and thereafter D.Sc. from Allahabad University. By following due procedure of selection, the petitioner was appointed as a Lecturer in Zoology and consequentially promoted to the post of Reader and continued as Head of the Department of Zoology in N.C. (Autonomous) College, Jajpur. 2.1 On 01.03.2005, an advertisement was issued by Fakir Mohan University for filling up of the post of Professor in Environmental Science. Pursuant thereto, the petitioner applied for and on being duly selected he was appointed as Professor in Environmental Science on 12.04.2005. Thereafter, he having relieved from the Government service on 09.05.2005, joined in the said post on 12.05.2005. The ViceChancellor of the University wrote letters to the petitioner as well as the Professors of other disciplines to send self appraisal forms for the purpose of confirmation in service. On 06.02.2007, the services of many Professors, Readers and Lecturers were conformed by the University, whereas the service of the petitioner was not confirmed. The reason for non-confirmation was that on 13.03.2007 the then ViceChancellor made serious allegations against the petitioner in the office file, which was not communicated to the petitioner. On the basis of such allegations, which were made behind the back of the petitioner, an enquiry committee was formed by the Syndicate. 2.2 On 17.03.2007, the enquiry committee, after formal discussion with the petitioner, but, however, without discussing or disclosing about the allegations so levelled against him, submitted report observing against the petitioner. On the basis of such allegations, which were made behind the back of the petitioner, an enquiry committee was formed by the Syndicate. 2.2 On 17.03.2007, the enquiry committee, after formal discussion with the petitioner, but, however, without discussing or disclosing about the allegations so levelled against him, submitted report observing against the petitioner. On consideration of such report of the enquiry committee, the Syndicate resolved that continuance of the petitioner is detrimental to the interest of the department and accordingly resolved to request the Government not to extend the lien of the petitioner and revert him back with effect from 10.05.2007. Being aggrieved by such communication from the Registrar, Fakir Mohan University discontinuing the petitioner's service and reverting him back to the Government Service, the petitioner approached this Court by filing W.P.(C) No.4784 of 2007. While entertaining the writ petition, this Court passed an interim order not to take any coercive action against the petitioner pursuant to said communication. The said interim order was extended from time to time and as such, the petitioner continued in service in Fakir Mohan University as the Professor and Head of the Department of Environmental Sciences. After the appearance of the counsel for Fakir Mohan University and the State, counter affidavit was filed in the said writ petition, from which the petitioner could able to know that due to some allegation by the then Vice-Chancellor, his service was not made confirmed, though similarly situated persons, who were appointed along with him, were confirmed in the meantime. More so, a committee was constituted to conduct an enquiry and on the basis of the report submitted by the said committee steps were taken by the Syndicate to revert him back to the Government Service. After due adjudication, W.P.(C) No. 4784 of 2007 was disposed of on 08.05.2007 directing the University to take a decision afresh in accordance with the provisions contained in the statute. 2.3 Thereafter, on 18.08.2007, a note was again submitted by the Vice-Chancellor reiterating serious allegations and indicating therein that continuance of the petitioner is detrimental to the interest of the University and recommended for termination of the services of the petitioner, which was accepted by the Syndicate on 20.08.2007 and on the very same day an order of termination was passed against the petitioner. Accordingly, after termination of his service, the petitioner approached this Court by filing W.P.(C) No.10905 of 2007 on 31.08.2007. But on 30.08.2007, an advertisement was issued to fill up the post. While entertaining the said writ petition, on 18.09.2007, this Court passed an interim order directing that the process of selection, as per the advertisement, shall be subject to the result of the writ petition and no appointment shall be made without leave of this Court. Consequentially, the post which fell vacant due to termination of the service of the petitioner could not be filled up. This Court, while disposing of W.P.(C) No.10905 of 2007, vide judgment dated 14.07.2008, in paragraphs 6 and 7 observed as follows: '6. On perusal of the allegations, it appears that the ViceChancellor has taken note of certain irregularities not only in official matters but also relating to proposal conduct of the petitioner. The Vice-Chancellor was of the view that because of these allegations, continuance of the petitioner in the post of Professor in Environmental Science is detrimental to the interest of the University. The allegations clearly put a stigma so far performance of the petitioner both official and personal are concerned. Law is well settled that when an order of termination is attached with a stigma, an opportunity of hearing is required to be given to the delinquent irrespective of the fact that such delinquent may be on probation. Admittedly, no opportunity of hearing has been given to the petitioner to meet the allegations. As a matter of fact, the petitioner was kept in dark about such allegations and the allegations were disclosed only in the counter affidavit filed by the University in the earlier writ application. Since admittedly the petitioner was not given an opportunity of hearing and his termination is attached with a stigma, we are of the view that such order of termination cannot be sustained in law. 7. We, accordingly, set aside the order in Annexure-24 terminating the services of the petitioner and direct the University to give reasonable opportunity of hearing to the petitioner to meet the allegations made against him and proceed in accordance with law.' In compliance of the aforementioned judgment dated 14.07.2008, the petitioner submitted his joining report on 28.07.2008. 7. We, accordingly, set aside the order in Annexure-24 terminating the services of the petitioner and direct the University to give reasonable opportunity of hearing to the petitioner to meet the allegations made against him and proceed in accordance with law.' In compliance of the aforementioned judgment dated 14.07.2008, the petitioner submitted his joining report on 28.07.2008. But as no action was taken thereon, finding no other alternative the petitioner filed CONTC No. 1136 of 2008 on 26.08.2008 for non-compliance of judgment dated 14.07.2008. 2.4 When the matter was subjudice before this Court in the shape of contempt, the petitioner pursued the authority to allow him to join, but instead of complying with the judgment passed by this Court, show cause notice was issued on 11.08.2008. In response to the same, the petitioner represented on 22.08.2008 to supply him the records, on the basis of which allegations were made in order to enable him to submit an effective reply to the show cause. As the petitioner was not supplied with the records, he submitted reply on 02.09.2008 only denying the allegations. But on 08.09.2008, the petitioner received the documents and accordingly on 20.09.2008 he gave his detailed reply denying all the allegations made against him. On 04.10.2008, personal hearing was held. 2.5 Holding of enquiry had nothing to do with allowing the petitioner to join in compliance of judgment passed by this Court on 14.07.2008. But belatedly by order dated 06.12.2008 he was allowed to join after exonerating him from all the charges/allegations levelled against him. Though he was allowed to join vide order dated 06.12.2008 under Annexure-9, but he was denied the financial claim from the University for the period from 20.08.2007 till 08.12.2008. Hence, this application. 3. Mr. S. Patra-1, learned counsel for the petitioner vehemently contended that if the petitioner has been exonerated from the allegations/charges levelled against him and in compliance of the judgment dated 14.07.2008 passed by this Court in W.P.(C) No. 10905 of 2007 by affording the opportunity of hearing he was allowed to join as Professor in Environmental Sciences and got his emolument from the date of his joining in the post, disentitling him the financial claim from the University for the period from 20.08.2007 to 08.12.2008 cannot sustain in the eye of law. It is further contended that if by illegal, arbitrary and unreasonable action of the authority the petitioner was deprived of discharging his duty, he is entitled to get his financial claim for the period he was deliberately and willfully kept out of duty to be discharged by him. To substantiate his contention, reliance was placed on Karunakar Khandapani vs. State of Odisha and others, 2015(II) OLR-26. 4. Mr. P.R.Patnaik, learned counsel for opposite party-University per contra contended that vide judgment dated 14.07.2008 passed in W.P.(C) No.10905 of 2007 the termination order was set aside by this Court and direction was given to the University to proceed in accordance with law by giving reasonable opportunity of hearing to the petitioner to meet the allegations made against him. In pursuance thereof, the Vice-Chancellor of the University gave personal hearing to the petitioner and submitted its recommendation to the Syndicate and on the basis of such recommendation the Syndicate on 02.12.2008 accepted the same and resolved that the petitioner shall be allowed to join the post and will get emolument from the date of his joining, but he will not be entitled to any financial claim from the University from 20.08.2007 till the date of his joining. Consequentially, on 06.12.2008, the impugned letter in Annexure-9 was issued enabling the petitioner to join in the post with the clear stipulation mentioned above. It is further contended that knowing fully well the condition stipulated in Annexure-9, the petitioner joined the post. Therefore, he cannot make any financial claim for the said period. Thereby, he seeks dismissal of the writ petition. 5. This Court heard Mr. S. Patra-1, learned counsel for the petitioner and Mr. P. R. Patnaik, learned counsel for opposite party-University through virtual mode, and perused the record. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. There is no dispute with regard to the facts delineated above. The only consideration to be made by this Court at this stage is whether the stipulation made in letter dated 06.12.2008 in Annexure-9 denying the financial claim to the petitioner for the period from 20.08.2007 to 08.12.2008 is justified or not. 7. 6. There is no dispute with regard to the facts delineated above. The only consideration to be made by this Court at this stage is whether the stipulation made in letter dated 06.12.2008 in Annexure-9 denying the financial claim to the petitioner for the period from 20.08.2007 to 08.12.2008 is justified or not. 7. Indubitably, the petitioner, pursuant to an advertisement issued by Fakir Mohan University for filling up of the post of Professor in Environmental Science, submitted his application and on being duly selected and appointed, he joined in the said post on 12.05.2005. But due to some allegations made by the then Vice Chancellor, he was not confirmed. Consequentially, he approached this Court by filing W.P.(C) No.4784 of 2007, which was disposed of on 07.08.2007 with the direction to the authority to take decision afresh in accordance with the statute. But the then ViceChancellor reiterated the selfsame allegation indicating that the continuance of the petitioner would be detrimental to the University and recommended for his termination from service, which was accepted by the University on 20.08.2007. Accordingly, termination order was passed and immediately thereafter an advertisement was issued to fill up the post, which was challenged before this Court by the petitioner in W.P.(C) No. 10905 of 2007 wherein an interim order was passed that the process of selection pursuant to such advertisement shall be subject to result of the writ petition and no appointment shall be made without leave of this Court. After due adjudication, this Court directed that the order of termination is attached with a stigma and therefore opportunity of hearing is required to be given to the delinquent irrespective of fact that such delinquent may be on probation. The petitioner having not given such opportunity, termination order was set aside. Consequentially, due to non-compliance of such order, the petitioner filed contempt application and in compliance of the principle of natural justice, the Syndicate considered the show cause reply filed by the petitioner and on the basis of the recommendation of the Vice-Chancellor, impugned order was issued on 06.12.2008 allowing the petitioner to continue in service by denying the financial claim for the period from 20.08.2007 to 08.12.2008. Such order under Annexure-9 depriving the petitioner from getting financial claim for the period in question is based upon no reasons. Such order under Annexure-9 depriving the petitioner from getting financial claim for the period in question is based upon no reasons. On perusal of the order impugned, it is made clear that why the petitioner will be deprived of such financial claim, that has not been indicated therein. Furthermore, for the illegality and irregularity committed by the authority, when the petitioner was terminated from service and the said order of termination has already been held to be not justified and sustainable in the touchstone of reasonableness, it is difficult to understand why the petitioner shall not be entitled to get the financial claim for the period he was deprived of discharging the duty, though he was willing to do the same. The petitioner had been deprived of discharging the duty not because of his own fault, but because of the fault of the employer. Thereby, he is entitled to get the consequentially benefits in accordance with law. Consequential benefits include the financial benefits and continuity in service as well as other benefits, which the petitioner has been illegally deprived of by virtue of arbitrary and unreasonable action of the employer. 8. The question of 'consequential benefits' came up for consideration before the apex Court in Union of India v. Madhusudan Prasad, AIR 2004 SC 977 wherein the apex Court held as follows: 'xxxxxx It may be noticed that the respondent was removed from service without any enquiry and he was not even given show cause notice prior to his dismissal from service. There was fault on the part of the employer in not following the principle of natural justice. These relevant facts were considered and the learned Single Judge and also the Division Bench ordered the payment of back wages. x x x ' 9. This Court in Jute Corporation of India Limited v. Judhistira Swain, reported in (2014) 11 ILR Cut. 165 while considering a dispute under the Industrial Disputes Act in paragraph 11 has held to the following effect: 'In view of the above, 'consequential benefit' to a person does not mean only back wages. It includes much more things beyond back wages, such as promotion, fixation of seniority and grant of financial benefits admissible to the post etc. 165 while considering a dispute under the Industrial Disputes Act in paragraph 11 has held to the following effect: 'In view of the above, 'consequential benefit' to a person does not mean only back wages. It includes much more things beyond back wages, such as promotion, fixation of seniority and grant of financial benefits admissible to the post etc. Therefore, if the termination of the opposite partyworkman in the guise superannuation has been declared as illegal and unjustified, then the opposite party-workman is entitled to get all the consequential service benefits admissible to the post. Back wages may be one facet of getting monetary benefits, but that is not the conclusive one. On the other hand, service benefit, which would have accrued to him had he continued in service cannot be denied by the petitionerManagement. Apart from the same, at best, the petitioner-Management may contend that since the opposite party-workmen has not rendered service for the period for which he was not in employment, he may not be entitled to get back wages. The said fallacy is not justified in view of the fact that it is the illegal and arbitrary action of the authorities for which the poor workman was out of employment on the plea of discrepancy in the date of birth. Had it been the out-come of a disciplinary proceeding and a punitive measure, then in that case consideration would have been different. But in the present case, because of the lapses on the part of the petitioner-Management, the opposite party-workman was out of employment and was deprived of discharging his duties. That ipso facto does not disentitle him to get the legitimate claim admissible to the post. Xxxx' 10. Relying upon the above mentioned judgment, this Court in Akhilanath Sahoo v. Joint General Manager, OSFC and others, 119 (2015) CLT 281 also held that the petitioner in the said case is entitled to get back wages. Similar view has also been taken by this Court in Karunakar Khandapani (supra). 11. Applying the above principles, as laid down by the apex Court as well as this Court, to the present context, there is not iota of doubt that the petitioner cannot be denied with the financial claim for the period from 20.08.2007 to 08.12.2008 with continuity in service. 11. Applying the above principles, as laid down by the apex Court as well as this Court, to the present context, there is not iota of doubt that the petitioner cannot be denied with the financial claim for the period from 20.08.2007 to 08.12.2008 with continuity in service. Accordingly, this Court directs the opposite parties to calculate and pay the financial claim to the petitioner for the period from 20.08.2007 to 08.12.2008 with continuity of his service. As the petitioner has already superannuated from service in the meantime on attaining the age of superannuation, such benefits shall be extended to him as expeditiously as possible, preferably within a period of three months from the date of communication of this judgment. 12. The writ petition is thus allowed. No order to costs.