Orissa High Court
Jayanta Kumar Goswami vs Governing Body Of Akhandalamani ... on 4 July, 2014
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
WRIT PETITION (CIVIL) No.22319 of 2011
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
----------
Jayanta Kumar Goswami ......... Petitioner
-versus-
Governing Body of Akhandalamani
College (+2), Betaligaon and others ......... Opposite Parties
For petitioner : M/s.S.Patra, A.Panda, P.K.Mohapatra,
S.J.Mohanty-2 and D.D.Sahu
For opp. parties : M/s.A.K.Panigrahi & B.S.Das
(for O.Ps. 1 to 4)
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 24.06.2014 | Date of judgment : 04.07.2014
Dr. B.R.Sarangi, J.The petitioner, who was appointed as Lecturer in Oriya in Akhandalamani College, has filed this petition assailing the resolution dated 25.5.2001 passed by the Governing Body of the College terminating his services under Annexure-19 and approval thereof made by the Director, Higher Education vide order dated 7.5.2005 under Annexure-25, which was affirmed by the State 2 Education Tribunal by order dated 11.4.2011 in Appeal No. 16 of 2006 under Annexurer-26.
2. The factual matrix of the case at hand is that Akhandalamani College (+2) at Palasahi in the district of Bhadrak, was established in the year 1982 with Intermediate Arts and Commerce stream. The Government granted concurrence in the year 1987 and the Council of Higher Secondary Education granted affiliation in the year 1998. The +3 Arts and +3 Science streams were opened in the year 1990 and the college received special permission for +3 Arts stream in the year 1992. The petitioner was appointed as Lecturer in Oriya against the 1st post in the college by following due procedure of selection pursuant to which he joined on 16.8.1982. The college became eligible and was notified on 15.3.1997 to be an aided educational institution with effect from 1.6.1994, therefore the Institution in question is an aided Institution within the meaning of Section 3(b) of the Orissa Education Act. The appointment of the petitioner was duly approved, consequence thereof he received grant- in-aid with effect from 1.6.1996 pursuant to the order dated 1.5.1997 under Annexure-1. On 15.5.1997 under Annexure-2 the petitioner was made the Principal-in-charge-cum-Secretary of the Governing Body with effect from 11.4.1997 and continued till 31.7.1998 pursuant to the order of the Director, Higher Education. Thereafter, Mr.P.K.Hota was made as the Principal-in-charge-cum-Secretary. The 3 petitioner was placed under suspension on 11.11.1998 by the order of the President of the Governing Body and such order of suspension was approved by the Director, Higher Education vide his order dated 17.12.1998. The petitioner assailed the order of suspension before this Court in OJC No. 5201 of 1999 vide Annexure-3, which was pending. Draft charges were framed against the President on 24.2.1999 under Annexure-4 for the alleged misconduct, dereliction in duty, unauthorised absence and misappropriation of college funds. The petitioner vide Annexure-5 dated 6.3.1999 sought for supply of the records, but the same were not supplied to him. But the Director vide order dated 25.1.2000 under Annexure-6 directed the President of the Governing Body for speedy disposal of the enquiry. Pending such disciplinary proceeding, the petitioner was reinstated in service vide Annexure-7 dated 15.9.2000, pursuant to which he joined on 16.9.2000. But the said order was revoked by the Director, Higher Education on 18.9.2000 under Annexure-9. Challenging such order, the petitioner filed OJC No.9497 of 2000 before this Court. Both OJC No. 5201 of 1999, which was filed challenging the order of suspension and OJC No.9497 of 2000, which was filed challenging revocation of the order of reinstatement, were disposed of by this Court by order dated 4.4.2001 vide Annexure-10. In OJC No. 5201 of 1999 this Court directed that the authorities would disburse the subsistence allowance within a period of one month and in OJC No.9497 of 2000, 4 this Court directed to conclude the disciplinary proceeding which has been initiated against the petitioner within a period of two months from the date of communication of the order. It was also made clear that if the proceeding is not concluded within the time stipulated, the order of suspension shall be revoked and the petitioner shall be reinstated in his post. The certified copy of the order dated 4.4.2001 was served on the authorities on 6.4.2001. In the meantime, on 23.9.2000 vide Annexure-11 another final draft charge was served by the Principal-in-charge declaring himself as the disciplinary authority. But the said final draft charge though was addressed to the opposite party no.3, no communication was made to the petitioner. On 11.4.2001 under Annexure-12, the Principal-in-charge directed the petitioner to deposit the misappropriated money of Rs.4,21,900.70 within fifteen days, which was received by the petitioner on 18.4.2001 basing upon which the petitioner filed his reply on 20.4.2001 under Annexure-13 stating specifically that unless his guilt is proved in a properly constituted disciplinary proceeding, he is not liable to refund anything. It is also further stated that audit was not conducted in accordance with the Orissa Aided Educational Institution Accounting Procedure Rules, 1985, in which it was stated that the audit by the auditor appointed by the Orissa Local Fund Audit Act, 1948 has to be done. The Director vide letter dated 27.4.2001 directed the opposite party no.4 to conclude the proceeding after 5 convening the meeting of the Governing Body in accordance with the judgment of this Court in OJC No.9497 of 2000 disposed of on 4.4.2001. On that basis the petitioner was directed to appear before the Collector on 11.5.2001 vide Annexure-16 and thereafter on 21.5.2001 under Annexure-17 and in consequence thereof, on the basis of the materials available on record and the charges, the Governing Body on 25.5.2001 under Annexure-19 unanimously came to a conclusion to terminate the services of the petitioner and thereafter the resolution was sent to the Director, Higher Education along with the letter of the Collector dated 30.5.2001 under Annexure-20 for grant of necessary approval. But in the meantime the petitioner had filed a contempt application bearing Original Crl.Misc. Case No. 402 of 2002 due to the non-compliance of the order dated 4.4.2001 passed by this Court in OJC No.9497 of 2000. The petitioner submitted his joining report in compliance to the order dated 4.4.2001 on the condition that the proceeding having been concluded, his joining report should be accepted, but the Governing Body having passed a resolution on 25.5.2001 vide Annexure-19, the joining report of the petitioner was not accepted. Thereafter, the Governing Body filed a writ Petition bearing W.P.(C) No.3026 of 2002, which has been disposed of on 10.12.2002 directing the Director to consider the request of the college for approval of the termination of the services of the petitioner within a period of two months. The 6 Director, Higher Education on consideration of the facts and materials and upon hearing the petitioner and Governing Body, passed an order on 7.5.2005 in Annexure-25 approving the termination order of the petitioner, against which the petitioner preferred Appeal No.16 of 2006 before the learned Education Tribunal. Learned Tribunal after affording opportunity of hearing did not interfere with the order of termination passed by the Director and dismissed the appeal vide order dated 11.4.2011 in Annexure-26, against which this writ petition has been filed.
3. On being noticed, opposite party nos.1 to 4 filed their counter affidavit stating that the petitioner was afforded all the opportunities to put-forth his grievance and after that the Governing Body has taken a decision to terminate the services of the petitioner on the basis of the materials available on record by passing a resolution, which has been duly approved by the Director, Higher Education under Section 10-A(1) of the Orissa Education Act. In appeal, the learned Education Tribunal on consideration of the materials available on record did not interfere with the order of termination passed by the Director as the Director has passed the order in conformity with the provisions of law.
4. The petitioner filed rejoinder specifically urging the fact that the order of suspension dated 11.11.1998 is bad in law in view of the fact that the President without any authority has passed the same 7 as no resolution was passed by the Governing Body to initiate the disciplinary proceeding against the petitioner. Apart from the same, after expiry of 30 days, without the approval of the Director, the order of suspension becomes invalid. The order of suspension was passed on 11.11.1998 and the same was approved by the Director on 17.12.1998, which was beyond the 30 days period, thereby such approval of the order of suspension cannot be sustained. It is further stated that the audit on the basis of which the proceeding was initiated is dehors the Rules. The audit related to the period from 21.7.1987 to 9.7.1998, out of which during the period from 21.7.1987 to 14.3.1997 the college was not aided and for the rest period, i.e. from 15.3.1997 to 9.7.1998 the audit should have been conducted by the local fund audit and not by the departmental auditor. The for the aided period having been conducted by the departmental auditor, the same is contrary to the provisions of law and therefore, the disciplinary proceeding basing upon such audit report also cannot sustain.
5. On the basis of the above factual matrix, Mr.S.Patra, learned counsel for the petitioner specifically urged that the draft charge under Annexure-4 dated 24.2.1999 on the basis of which the departmental proceeding has been initiated is not a definite one and as such, the charge-sheet itself does not incorporate the materials on the basis of which the same has been framed and the petitioner 8 though asked for such documents, the same has not been supplied to him, thereby it contravened the provisions of Rule 22(2)(3) of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (hereinafter to be referred to "1974 Rules"). Therefore, there is gross non-compliance of the principles of natural justice. Hence, the initiation of the departmental proceeding is vitiated. It is further urged that the termination of the petitioner is also violative of Rule 29(e) of the Orissa Education (Establishment, Recognition and Management of Private High Schools) Rules, 1991 (hereinafter to be referred to as "Rules, 1991"). It is stated that the Governing Body- opposite party no.1 is the disciplinary authority as per Rule 21 of the 1974 Rules. Since the draft charges have not been issued by the Governing Body under Annexures-4 and 11, the very initiation of the proceeding is contrary to the provisions of law and the draft charges which have been served vide Annexures-4 & 11 have neither been finalized nor any materials on the basis of which such charges have been framed, have been supplied to the petitioner, thereby the same is in gross violation of the principles of natural justice. The basic foundation of initiation of disciplinary proceeding with regard to the misappropriation of college funds, it is stated that much reliance has been placed on the audit report. The same has not been done in conformity with the provisions contained in Orissa Local Fund Audit 9 Act, 1948 read with the Orissa Aided Educational Institution Accounting Procedure Rules, 1985. Therefore, the termination of the services of the petitioner without getting prior approval of the Director is also contrary to the provisions contained in Section 10-A of the Orissa Education Act. To substantiate his contention, he has relied upon the judgments of the apex Court in Committee of Management v. Sambhu Saran Pandey and others, JT 1995 (1) SC 270, State of Punjab v. V.K.Khanna, AiR 2001 SC 343, Kumaon Mandal Vikash Nigam Ltd. v. Girija Sankar Pant and others, AIR 2001 SC 24, Rajesh Kmar v. DCIT and others, 2006 AIR SCW 5685, and Vinod Kumar v. State of Haryana and others, 2013 AIR SCW 6134.
6. Mr.B.S.Das, learned counsel for the opposite parties 1 to 4 states that the impugned order having been passed well within the jurisdiction of opposite party no.3, the same should not be interfered with and as such, the order of approval of termination and consequential revocation of the order of reinstatement in appeal by the learned Education Tribunal is wholly and fully justified and such orders have been passed on due consideration of the materials available on record.
7. With reference to the aforesaid factual and legal contentions, the following points emerge for consideration. 10
(i) Whether consequent upon initiation of the disciplinary proceeding, the termination of the petitioner is in violation of the provisions of law and principles of natural justice?
(ii) Whether the order passed by the Director approving the termination of the petitioner is legal and valid?
(iii) Whether the order of termination passed on the basis of the audit report regarding misappropriation of college funds can sustain or not?
(iv) Whether the learned Education Tribunal has passed the impugned order with due application of mind or not?
8. As it appears, the draft charge-sheets under Annexures-4 and 11 have been issued without any resolution being passed by the Governing Body. Thereby there is no authority of law to issue such draft charge by the authority, who is not competent under law. As such, no complete charge has been issued against the delinquent officer. Sub-rule (2) of Rule 22 of 1974 Rules prescribes that definite charges have to be supplied to the delinquent like that of the petitioner. The materials on the basis of which the draft charges have been framed have not been supplied to the petitioner. So far as draft charges framed on the allegation of financial misconduct is concerned, the same cannot be taken into consideration on the ground that the draft charge was framed vide Annexure-4 on 24.2.1999, whereas audit was done on 5.3.1999 after submission of draft charge to the petitioner and more so, such audit has been 11 carried out by the authority, who has no competence to do. Such audit was to be done as per the provisions contained in the Orissa Local Fund Audit Act, 1948 read with Rule 29(e) of the Orissa Aided Educational Institution Accounting Procedure Rules, 1985. Annexure- 11, the subsequent draft charge dated 23.9.2000 was issued by the Principal-in-charge declaring him as the disciplinary authority without any resolution of the Governing Body. Therefore, such draft charge has been submitted by a person, who is not competent as per 1974 Rules. Hence, any action taken pursuant to such draft is vitiated. More so, such draft charge under Annexure-11 has never been served on the petitioner, rather it has been addressed to opposite party no.3, the Director, Higher Education. The said Annexure-11 was issued by the then Principal-in-charge, who resigned from the post on 4.6.1999. In view of the aforesaid reasons, it appears that the very initiation of the proceeding by issuing draft charge without having any definite charge and non-supply of the materials basing upon which charge has been framed being violative of the statutory provisions, and contrary to 1974 Rules read with 1985 Rules, the impugned order of termination cannot be sustained. It is stated that after the draft charge was submitted vide Annexure-4 on 24.2.1999, the petitioner prayed for supply of records as per Rule 22(3) of 1974 Rules vide Annexure-5, but the said documents were not supplied to him. Therefore, there is gross violation of the principle of natural justice. 12
9. The phrase "natural justice" means a fair crack of the whip, per Lord Russel of Killowen, in Fairmount Investment Ltd. v. Secy. of State for Environment, 1976(1) WLR 1255, as cited in Canara Bank v. Debasis Das, AIR 2003 SC 2041. The phrase "natural justice" means universal justice. Drew v. Drew and Lebura (Macq. at p.8 per Lord Granworth, as cited in Canara Bank v. Debasis Das (supra).
10. The words "Natural Justice" manifest justice according to one‟s own conscience. It is derived from the Roman concept „jus- naturale‟ and „Lex naturale‟ which means principle of natural law, natural justice, eternal law, natural equity or good conscience. Lord Evershed, in Vionet v. Barrett (reported in 1885(55) LJRD 39) remarked, "Natural Justice is the natural sense of what is right and wrong." It has been used to mean that reasons must be given for decisions: that a body deciding an issue must only act on evidence sentenced, especially where decision affecting liberty or property is to be made fair opportunity of hearing must be provided. In Lennox Arthur Patrick O' Reilly and others v. Oyril Outhbert Gittens, AIR 1949 PC 313, it has been held that the principles of natural justice constitute the basic elements of fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men.
13
11. "Natural Justice" has been used in a way "which implies the existence of moral principles of self-evidence and unarguable truth". In course of time, judges nurtured in the traditions of British jurisprudence, often involved it in conjunction with a reference to "equity and good conscience". Legal experts of earlier generations did not draw any distinction between "natural justice"
and "natural law". "Natural justice" was considered as "that part of natural law which relates to the administration of justice". Rules of natural justice are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules. During the last two decades, the concept of natural justice has made great strides in the realm of administrative law. Before the epoch-making decision of the House of Lords in Ridge v. Baldwin, 1964 AC 40(196): (1963) 2 All ER 66 (HL), it was generally thought that the rules of natural justice apply only to judicial or quasi-judicial proceedings; and for that purpose, whenever a breach of the rule of natural justice was alleged, courts in England used to ascertain whether the impugned action was taken by the statutory authority or tribunal in the exercise of its administrative or quasi-judicial power. In India also, this was the position before the decision dated February 7, 1967 of the apex Court in State of Orissa v. Dr.(Miss)Bina Pani Devi, AIR 1967 SC 1269) wherein it was held that even an administrative or decision in matters involving civil 14 consequences, has to be made consistently with the rules of natural justice. This supposed distinction between quasi-judicial and administrative decisions, which was perceptibly mitigated in Dr.Bina Pani Dei case, was further rubbed out to a vanishing point in A.K.Kraipak v.Union of India, (1969) 2 SCC 262, thus: If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. An unjust decision in an administrative enquiry may have more far-reaching effect than a decision in a quasi- judicial enquiry.
12. In the language of V.R.Krishna Iyer, J. in Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851, it has been held as follows:
"........subject to certain necessary limitations natural justice is now a brooding omnipresence although varying in its play..... Its essence is good conscience in a given situation; nothing more- but nothing less".
In A.K.Kraipak (supra), it has been held that the rules of natural justice can operate only in areas not covered by any law validly made. They can supplement the law but cannot supplant.
13. Due to non-supply of materials, basing upon which charge has been framed, the rudiment of non-compliance of principle of natural justice has not been followed, thereby the very initiation of 15 the proceeding is vitiated. While initiating a proceeding, it appears that the authorities are biased against the petitioner because without framing definite charge as per 1974 Rules, relying upon the draft charges the proceeding has been initiated hastily. In view of the judgment of the apex Court in State of Punjab v. V.K.Khanna (supra), there must be at least substantial possibility of bias in order to render the administrative action invalid. As it appears that when the draft charge-sheet was submitted without any materials and the petitioner sought for supply of documents and the same were not provided and subsequently vide Annexure-11 draft charge was prepared and was supplied to the Director without giving a copy to the petitioner, that itself indicates that the person, who has initiated the proceeding has bias against the petitioner. Therefore, any proceeding, which has been initiated with bias mind cannot be sustained.
14. In Kumaon Mandal Vikash Nigam Ltd. (supra), the apex Court held as follows:
"The word „Bias‟ in popular English parlance stands included within the attributes and broader purview of the word „malice‟, which in common acceptation mean and imply „spite‟ or „ill-will‟ (stroud‟s Judicial Dictionary (5th Ed.) Volume 3) and it is now well settled that mere general statements will not be sufficient for the purposes of indication of ill-will. There must be cogent evidence available on record to come to the conclusion as to whether in fact there was existing a bias which resulted in the miscarriage of justice."16
15. The authority who has issued such draft charges had no authority to do so because of lack of resolution passed by the Governing Body. That itself indicates that the authority is biased against the petitioner and proceeded without any authority of law. Therefore, the order of termination has been passed contrary to the provisions of law governing the field.
16. The allegation of misappropriation of funds has been based on the audit report. The same has not been done in conformity with the provisions of law. On perusal of the audit report, it appears that no where it has been indicated that the petitioner had misappropriated the money. The audit having been done for the period from 21.7.1987 till 31.7.1998, which is inclusive of unaided and aided period and out of which during the period from 11.4.1997 to 31.7.1998 the college was aided and the petitioner as Principal-in- charge operated the account. But for the period from 21.7.1987 to 10.4.1997, which was unaided period, the account was not operated by the petitioner, rather one Bansidhar Khatua being the Secretary of the Governing Body operated the same and signed the resolution by maintaining the accounts as per law, thereby the entire process of proceeding was continuing with mala fide and biased manner and without application of any mind. As it appears, while causing such enquiry, the provisions of law has neither been taken into consideration nor principle of natural justice has been complied with, 17 rather, the authorities have proceeded in a biased manner with mala fide intention, which is not permissible in the eye of law, consequence thereof, without any application of mind, the Director has approved the termination order under Annexure-25, which is nothing but an arbitrary and unreasonable exercise of power by the Director. The learned Education Tribunal in Appeal did not incline to interfere with the approval of the termination order. That itself also cannot sustain though the order itself indicates that the termination order was passed on 30.5.2005, but in effect, the same was passed on 30.5.2001 without prior approval of opposite party no.3, since the termination order has been approved by the Director contrary to the provisions contained in Section 10-A of the Orissa Education Act. Section 10-A (1)(a) of the Act reads as follows :
"10-A.Service of teachers of aided institutions not to be terminated without approval- (1) The services of a teacher and other members of the staff of an aided Educational Institution shall not be terminated without obtaining the prior approval in writing of the
(a) Director in case of a teacher and other members of the staff of a college;
(b) Xx xx xx "
17. On perusal of the above mentioned provisions, it appears that the services of a teacher of aided educational institution shall not be terminated without obtaining prior approval in writing of the Director in case of a teacher of a college. In the present case, the termination order having been passed on 30.5.2001 and decision was 18 taken by the Governing Body regarding termination of his services pursuant to the resolution dated 28.5.2001, which has been approved by the Director vide letter dated 7.5.2005 under Annexure-25, it cannot be construed that there is prior approval with regard to the termination of the services of the petitioner and such order of termination has been passed due to non-compliance of the principle of natural justice.
18. The learned Education Tribunal committed gross error apparent on the face of the record by declining to interfere with the approval of the order of termination by the Director under Annexure-
25. The learned Tribunal has committed gross error stating that final charges with imputations were served on the petitioner on 21.2.1999 along with relevant documents, basing upon which charges were framed and such statement has been made on the basis of the contentions raised by opposite party no.5. The opposite party no.5 has never filed any affidavit before the learned Tribunal to that extent, which amounts to non-application of mind by the learned Tribunal. The contention raised that the petitioner was supplied with the final charges with imputations with relevant documents on 21.2.1999 are backed by documents or materials available on record. But fact remains, on the basis of the draft charge under Annexure-4, prepared on 24.2.1999 since the documents were not supplied to him as per Rule 22(3) of 1974 Rules, the petitioner called for all the 19 documents pursuant to Annexure-25, but no such documents were supplied to him and on the basis of such draft charges, the proceeding continued. Therefore, without appreciating the facts in proper perspective, the learned Tribunal has passed the impugned order.
19. In view of the foregoing analysis, this Court is of the opinion that the impugned resolution of the Governing Body terminating the services of the petitioner under Annexure-19, the subsequent approval made by the Director, Higher Education under Annexure-25 and the order passed by the learned Education Tribunal under Annexure-26 are contrary to the provisions of law and as the same have been passed without compliance of the principles of natural justice, the same are hereby set aside.
20. In the result, the writ petition is allowed. The petitioner be reinstated in his service and he be granted all the consequential service benefits as due and admissible to him in accordance with law forthwith.
.......................................
Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 4th July, 2014/PKSahoo