Orissa High Court
Amar Kumar Panigrahi vs State Of Odisha And Others on 31 October, 2017
Author: S.N.Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
O.J.C. No.9308 of 1995
In the matter of applications under Article 226 and 227 of the Constitution
of India.
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Amar Kumar Panigrahi ...... Petitioner
- Versus-
State of Odisha and Others ...... Opposite Parties
Counsel for Petitioner : M/s. Manoj Kumar Mohanty, N. R. Rout, B. P.
Routray, M/s. K. P. Mishra, J. P. Khandayat, S.
Mohapatra and S. Mallick.
Counsel for Opp.Parties : Mr. Nirod Kumar Sahoo, M/s. D. P. Dash, D. K.
Swain and Standing Counsel for School and Mass
Education Department.
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment: 31.10.2017
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S. N. Prasad, J.This writ petition is under Article 226 and 227 of the Constitution of India for quashing Annexure 13 and 14 dtd.25.01.1990 and dtd.04.03.1990 respectively whereby and where under the opposite party no.6 has been appointed as Science teacher as also Annexure 15 dtd.20.11.1995 passed by the Director, Secondary Education, Orissa whereby and where under the appeal preferred by the petitioner has been found to be without merit and accordingly quashed.
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2. The brief fact of the case is that the petitioner had been appointed vide order dtd.25.06.1987 as Science Teacher, accordingly he joined in service with effect from 02.07.1987. The petitioner was an untrained teacher and as per the yardstick dtd.08.07.1981 he should be a trained teacher, he made representation to the Secretary of the School on 24.07.1987 seeking permission for making application to the Director of Correspondence Courses, Utkal University for undergoing B.Ed. training, for making application, experience certificate was required to be attached with the application form, hence the Secretary had issued an experience certificate on 24.07.1989 which has been forwarded by the Headmaster of the School vide his letter dtd.24.07.1989 to the Inspector of Schools for his countersignature and on 26.07.1989 the Inspector of Schools countersigned the experience certificate issued by the Secretary of the School. The petitioner, on this pretext had made application to the Director of Correspondence Courses, Utkal University for undergoing B.Ed. training and after duly been selected, he made a representation before the Secretary on 09.11.1989 to permit him to take admission in B.Ed. correspondence course for the session 1989-90, accordingly permission was granted, the petitioner has also made application for getting experience certificate to be produced at the time of admission which has been issued by the competent authority, but the petitioner, in the meanwhile, has been terminated from service, that too without any show cause notice on 25.01.1990. Accordingly he preferred an appeal before the Director, Secondary Education, Odisha on 16.02.1990 and when the appeal was pending, opposite party no.6 was appointed against the post which was 3 occupied by him. The Director has heard the appeal at length and passed the order, however, rejected the same by approving the order of termination.
3. The petitioner, in this writ petition, has assailed the order of termination as also the engagement of opposite party no.6 and the order passed by the appellate authority on the ground that before terminating his services no show cause notice has been issued. The managing committee has taken a stand before the appellate authority that the show cause notices have been issued repeatedly by way of certificate of posting, but according to the petitioner, issuing notice under certificate of posting is not the accepted method of service of notice rather it should have been personally served or sent through registered post but only in order to make out a case and create a document the certificate of posting has been fabricated by one of the members of the managing committee who happens to be the post peon of the area, as such the principle of natural justice has not been followed.
Further ground has been taken that there is no unauthorized absence by the petitioner rather, he, for shortly, was absent but on the ground of medical illness and if an opportunity would have been provided to him, he would have convinced the authority regarding his unauthorized absent but the opportunity have not been provided to him, as such the order of termination is absolutely illegal and not sustainable in the eye of law.
4. Learned counsel for the petitioner, while arguing the case, has vehemently submitted that the documents suggest that the petitioner has got 4 permission to get B.Ed. training and absence has got no nexus with the period of training. He submits that there is no unauthorized absence by the petitioner and only in order to make out a room for opposite party no.6, he has been terminated from service vide letter dtd.25.01.1990 by referring therein that in spite of opportunity having been granted to him, he has not responded to the same, hence terminated from service, while the fact is otherwise that he has not been given any opportunity to defend himself, hence the order of termination is in violation of the principle of natural justice, as such not sustainable in the eye of law.
5. Per contra, learned counsel appearing for opposite party - State as well as opposite party no.6 have vehemently opposed the argument advanced on behalf of the petitioner by submitting that the petitioner was unauthorizedly absent for the period from 18.12.1989 to 18.01.1990 and to that effect three show cause notices have been issued to him but he has not responded to the same, accordingly the petitioner has been terminated from service for the larger issue and in the public interest so that new appointment may be made to impart teaching to the students studying in the school in question. It has been contended by referring to the Attendance Register that he has been shown to be absent for the said period, as such the Attendance Register cannot be disputed by the petitioner since there is signature of the petitioner when he has attended the office.
It has been submitted that the petitioner has taken a ground of medical ailment by submitting a certificate from the Doctor from 27.07.1989 to 5 18.09.1989 and due to advice of the Doctor he was on complete bed rest since he was suffering from Typhoid fever.
It has further been submitted that the plea taken by the petitioner that the show cause notice since been sent through certificate of posting is fabricated one, is not true since the certificate of posting is also an acceptable method of service of notice upon the party and accordingly the notice has been served to be effected upon the petitioner, simultaneously by issuing three show cause notices, but he has failed to respond to the same, as such the Managing Committee, having no option but to terminate the petitioner from service.
It has been submitted that the petitioner was already got his admission for getting B.Ed. training, as would be evident from the Course Leaving Certificate issued by the Director of Correspondence Courses, Utkal University and from its perusal it is evident that he has taken admission on 16.8.1989 and it is admission on the part of the petitioner that he made an application for getting sanction of the leave by making a representation on 9.11.1989 while the fact is that he has already taken admission on 16.8.1989 itself which also shows the conduct of the petitioner that after getting admission he is making application for sanction of study leave.
It has further been contended that the medical certificate submitted by him is nothing but an afterthought to make out his defence to substantiate the absent actually he was not ill during the relevant time as because he has shown to suffering from Typhoid fever from 27.7.1989 to 6 18.9.1989 but during that period he was also undergoing his correspondence course in the Utkal University as would be evident from the Course Leaving Certificate dtd.9.10.1994 annexed as annexure-B/5 to the counter affidavit filed by the opposite party nos.4 and 5.
Learned counsel, on the strength of these submissions, has submitted that the petitioner has failed to make out a case of making interference with the order of the Director by seeking direction from this court to issue a writ of certiorari because the director has taken into consideration each and every aspect of the matter and after going into the same as also the subsequent enquiry conducted by the Deputy Inspector of Schools who has conducted the enquiry in order to get the matter enquired into so that the veracity of the fact can be ascertained and the enquiry committee has found the allegations leveled against the petitioner as true, the same has been taken into consideration by the Director, Secondary Education while hearing the appeal, hence there is no perversity in the finding, as such this court, sitting under Article 226 and 227 of the Constitution of India may not exercise the power as an appellate court in order to reverse the fact finding.
6. Learned counsel appearing for the petitioner, in response, has submitted that the Attendance Register which has been annexed in the counter affidavit is fabricated one and the same has been fabricated only for the purpose of creating defence by the management.
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He has further submitted that even the enquiry committee has conducted the enquiry prior to the order of termination, as such the same has got no value in the eye of law.
7. Heard the learned counsels for the parties and perused the documents available on record.
This court, after appreciating the rival submission of the parties, has come across with the factual aspect of the case. The admitted position in the instant case is that the petitioner was appointed as Science Teacher in the School in question vide order dtd.25.06.1987 and accordingly joined the service w.e.f. 02.07.1987. The petitioner was not a trained candidate at the time of getting his engagement and as per the yardstick dtd.8.7.1981 the requirement for being a teacher was of having training certificate or B.Ed., hence he made representation to the Secretary of the School seeking permission to get B.Ed. training by way of correspondence course. The petitioner has also made application for getting experience certificate which was required for getting admission to get training under the correspondence courses which has also been granted by the competent authority and accordingly he has taken admission under the Directorate of Correspondence Courses from 16.8.1989 to 31.5.1990. The petitioner, while working, has been terminated from service w.e.f. 25.1.1990. The petitioner has assailed the order of termination mainly on the ground of not following the principle of natural justice since no show cause notice has ever been served upon him. 8
This court after appreciation of the factual aspects on the basis of the material available on record, has found that the show cause notice has been issued to the petitioner on 03.01.1990 thereafter one reminder was issued on 11.01.1990 and then a fresh show cause notice was issued on 19.01.1990 asking the petitioner to give reply of continuous absence from service for the period from 08.12.1989 to 18.01.1990. The management has taken the plea that in spite of repeated show cause notices having been issued upon the petitioner, he has not chosen to reply, hence terminated, while the plea of the petitioner is that he has not received show cause notice since it has been sent under certificate of posting which is not an acceptable method for service of notice.
It is not in dispute that while terminating the service of an employee the principle of natural justice is to be followed by the employer since it leads to civil consequence. It is evident from the pleading made in the counter affidavit supported by documents that show cause notices have been issued, however not under registered post, rather under certificate of posting. The question of service of notice is under dispute.
This court, in this situation, has considered the factual aspect as to whether even if the petitioner would have given reply, is there any chance of change in situation since the opposite parties have annexed the copy of the Attendance Register showing the fact that the petitioner was absent for the said period.
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The considered view of this court is that the petitioner has been shown to be absent, even accepting the dispute raised by the petitioner regarding service of notice, but the petitioner cannot improve his case even if he would have been provided an opportunity of being heard by filing reply to the show cause since the fact which is apparent on the face of Attendance Register cannot be improved by the petitioner and if on the ground of not following the principle of natural justice the order of termination would be quashed by remitting the matter for following the principle of natural justice, that will lead to empty formality and futile exercise, since the plea of unauthorized absence cannot be improved by the petitioner.
This reasoning is being given by this court also on taking into consideration the fact that a committee was constituted consisting of seven functionaries and whatever allegation has been leveled by the managing committee regarding unauthorized absence which has been found to be true by giving finding therein that the petitioner was irregular in his duty and could not prove his ability, the finding of the said enquiry report has been taken into consideration by the appellate authority while exercising the jurisdiction conferred to it under the statute and the appellate authority has found that the petitioner was irregular in discharging his duty, hence declined to interfere with the order of termination.
8. The learned counsel for the opposite parties have taken another ground that the writ petition is after delay of three years in challenging the order of termination since the order of termination is dtd.25.1.1990 but the 10 appeal has been preferred before the Director, Secondary Education in the year 1993 while the circular provides to file an appeal within 30 days as per letter No.13585 dtd.27.3.1983 and when the appeal has not been filed within the stipulated period as provided under the circular dtd.27.3.1983, opposite party no.6 has been appointed on 5.3.1990, hence the petitioner cannot have any grievance that during pendency of the appeal the opposite party no.6 has been appointed.
Learned counsel for the petitioner has vehemently opposed the submission by submitting that this point has never been raised before the appellate authority and it is being taken for the first time, as such this may not be taken into consideration.
This court, after appreciating the rival submission of the parties as aforesaid, is of the considered view that although this point has not been raised before the appellate authority, since the appointment of o.p.6 is under challenge, hence it is necessary to look into this aspect of the matter otherwise also it is a question of law, as such it can be taken at any stage. The opposite party no.6 since been appointed after lapse of period of limitation for filing an appeal and not only that after three years from the date of termination this writ petition is being filed, hence on this ground also the case of the petitioner is not fit to be entertained.
9. This court is conscious of the jurisdiction in issuing the writ of certiorari sitting under Article 226 of the Constitution of India which is very 11 limited and the same can only be exercised if there is any perversity in the finding or error apparent on the face of record, but according to the considered view of this court there is no error on the face of the order or perversity in the finding given by the Director, Secondary Education rather it is based upon the evidence and finding given by the enquiry committee, as such this court sitting under Article 226 of the constitution of India is not supposed to reverse the fact finding by assuming the power of appellate court.
In view thereof this court refrains itself from exercising the jurisdiction conferred to it under Article 226 of the constitution of India accordingly refrains itself from entertaining the relief sought of by the petitioner.
In the result the writ petition fails and it is dismissed.
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S.N.Prasad, J.
Orissa High Court, Cuttack, Dated the 31st October, 2017 / Manas.