Kedarnath Swain vs State Of Odisha & Others ... Opposite ... on 22 February, 2023

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Orissa High Court

Kedarnath Swain vs State Of Odisha & Others ... Opposite ... on 22 February, 2023

Sashikanta Mishra,J. Both the Writ Petitions are directed against the same order i.e. order dated 22nd January, 2015 passed by the Director, Secondary Education, Odisha, Bhubaneswar (Opposite Party No.2). As such, both the Writ Petitions were heard together and are being disposed of by this common judgment. W.P.(C) Nos. 3231 & 5612 of 2015 Page 2 of 24

2. The facts of the case lie in a narrow compass. One Nirumapa Mishra (Opposite Party No.6 in W.P.(C) No.3231/2015 and Opposite Party No.5 in W.P.(C) No.5612/2015) was appointed as Hindi Teacher in Lavan Satyagrahi Swamiji Purnananda Bidyapitha, Kuhudi in the district of Puri in the year 1996 having the requisite qualification i.e. B.A. with Kovid (Hindi). It is alleged that she remained unauthorizedly absent from her duties on many dates during her tenure and finally from 2nd April, 2004 onwards she did not report to duty. Accordingly, the Managing Committee issued several show cause notices to her regarding her unauthorized absence, but she did not respond to the same. As such, by order dated 22nd November, 2008, the Managing Committee terminated her service. In the vacancy so caused, one Kedarnath Swain (Petitioner In W.P.(C) No.3231/2015 and Opposite Party No.4 in W.P.(C) No.5612/2015) was appointed as Hindi Teacher as he too possessed the required qualification. The name of Kedarnath Swain was forwarded along with other Teaching and Non-Teaching staff of the W.P.(C) Nos.3231 & 5612 of 2015 Page 3 of 24 School to the Board of Secondary Education for grant of recognition every year from 2009 onwards. Be it noted that the School became eligible to receive grant- in-aid from the State Government in the year 2009. Long thereafter, Nirupama Mishra filed an appeal on 1st November, 2013 before Opposite Party No.2 alleging that her name had not been reflected in the application form submitted by the School for renewal of recognition and she was prevented to sign the attendance register. After hearing the appellant and the representative of the Managing Committee, the Opposite Party No.2, vide order dated 22nd January, 2015 held that the Managing Committee had neither followed due procedure nor given reasonable opportunity to Nirupama Mishra before terminating her service only to appoint another candidate and thereby intentionally terminated her service. As such, the Opposite Party No.2 directed the Managing Committee to take back Smt. Mishra in her former post immediately and to recommend her name in the W.P.(C) Nos. 3231 & 5612 of 2015 Page 4 of 24 renewal recognition form as well as to the higher authority for all purposes.

3. Heard Mr. A.K.Mohanty-A, learned counsel for the Petitioner in W.P.(C) No.3231/2015, Mr. K.K.Swain, learned counsel for the Petitioner (Managing Committee of the School) in W.P.(C) No.5612/2015, Mr. R.N.Mishra, learned Addl. Government Advocate for the State and Ms.Mamata Mishra, learned counsel for Smt. Nirupama Mishra.

4. Mr. A.K.Mohanty has assailed the impugned order on the ground that the same was passed without issuing any notice to his client, Kedarnath Swain. Since the impugned order has the effect of adversely affecting his livelihood, he ought to have been given opportunity of hearing by the Opposite Party No.2. Mr. Mohanty further contends that even otherwise, Smt. Nirupama Mishra was rightly terminated from service by the Management because of her long absence from duties, due to which the education of the students was affected.

W.P.(C) Nos.3231 & 5612 of 2015 Page 5 of 24

5. Mr.K.K.Swain has argued that the Opposite Party No.2 has no jurisdiction to hear the appeal in view of the Government Order dated 15th December, 2000 whereby the Regional Director (School Education) has been nominated as the appellate authority superseding all previous orders issued in this regard. Mr. Swain further contends that the appeal having been preferred nearly five years after the cause of action arose, is grossly barred by limitation as per Government Circular dated 27th March, 1983 read with Order dated 15th December, 2000 and hence, should not have been entertained. Moreover, it is the settled position of law that a quasi-judicial authority has no power to condone the delay. Mr. Swain further contends that the Management was not given due opportunity of hearing as by letter dated 18th December 2014, the Opposite Party No.2 was requested to adjourn the matter on the ground of illness of the Secretary, but the same was not considered. On merits of the case, it is argued by Mr. Swain that Smt. Mishra remained unauthorizedly absent from 2nd April, 2007 onwards W.P.(C) Nos. 3231 & 5612 of 2015 Page 6 of 24 and did not respond to the several show cause notices issued to her and therefore, her conduct was rightly construed by the management as an act of voluntary abandonment of service and therefore, her service was terminated.

6. Mr. R.N.Mishra, learned Addl. Government Advocate, has supported the impugned order by submitting that as per the settled position of law a substituted employee in place of the terminated employee is not a necessary party. Secondly, the Opposite Party No.2 rightly observed that the principles of natural justice had not been followed by Management before terminating her service. It is also contended by Mr. Mishra that the Managing Committee that had preferred the Writ Petition having been superseded and the new Managing Committee not having come forward to pursue the Writ Petition, the same is no longer maintainable.

7. Ms.Mamata Mishra, learned counsel appearing for the terminated employee, submits that once the W.P.(C) Nos.3231 & 5612 of 2015 Page 7 of 24 Institution comes under the GIA fold, the Managing Committee becomes defunct and therefore, it has no locus standi to challenge the impugned order. She further submits that there is no stipulation regarding limitation for filing appeal in the Government Circular dated 15th December, 2000 and therefore, the contention raised in this regard is erroneous. She further submits that the order of termination was never communicated to her and therefore, it cannot be said to have taken effect or having any legal force. Ms. Mishra has in the mean time been reinstated since 2015 and is receiving her salary.

8. From the rival contentions noted above, it is evident that certain issue having been raised relating to the locus standi of Kedarnath Swain to challenge the impugned order, it would be imperative to decide the same at the outset. It has been argued that a substituted employee has no right to be impleaded as a party in any proceeding initiated by the terminated employee against order of his/her termination. W.P.(C) Nos. 3231 & 5612 of 2015 Page 8 of 24 Reference has been made to the decision of the Supreme Court in the case of Poonam v. State of Uttar Pradesh and others; reported in (2016) 2 SCC

779. Referring to the above decision, Ms. Mamata Mishra has argued that it is not necessary to implead the substituted employee when the order of termination issued against the terminated employee is under challenge. A reading of the cited judgment shows that the Apex Court after going through several previous decisions, ultimately held as follows;

"50. The decisions which we have referred to hereinbefore directly pertain to the concept of necessary party. The case of Kailash Chand Mahajan [State of H.P. v. Kailash Chand Mahajan, 1992 Supp (2) SCC 351 : 1992 SCC (L&S) 874 : (1992) 21 ATC 528] makes it absolutely clear. We have explained the authority in J.S. Yadav [J.S. Yadav v. State of U.P., (2011) 6 SCC 570: (2011) 2 SCC (L&S) 140] and opined that it has to rest on its own facts keeping in view the declaratory relief made therein, and further what has been stated therein cannot be regarded as a binding precedent for the proposition that in a case of removal or dismissal or termination, a subsequently appointed employee is a necessary party. The said principle shall apply on all fours to a fair price shop owner whose licence is W.P.(C) Nos.3231 & 5612 of 2015 Page 9 of 24 cancelled. We may hasten to add, this concept will stand in contradistinction to a case where the land after having vested under any statute in the State has been distributed and possession handed over to different landless persons. It is because of such allotment and delivery of possession in their favour, that is required under the statute, rights are created in favour of such allottees and, therefore, they are necessary parties as has been held in Ram Swarup v. S.N. Maira [Ram Swarup v. S.N. Maira, (1999) 1 SCC 738]. The subtle distinction has to be understood. It does not relate to a post or position which one holds in a fortuitous circumstance. It has nothing to do with a vacancy. The land of which possession is given and the landless persons who have received the pattas and have remained in possession, they have a right to retain their possession. It will be an anarchical situation, if they are not impleaded as parties, whereas in a case which relates to a post or position or a vacancy, if he or she who holds the post because of the vacancy having arisen is allowed to be treated as a necessary party or allowed to assail the order, whereby the earlier post holder or allottee succeeds, it will only usher in the reverse situation -- an anarchy in law.

53. We have referred to the said decision in Ramesh Hirachand case [Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay, (1992) 2 SCC 524] in extenso as there is emphasis on curtailment of legal right. The question to be posed is whether there is curtailment W.P.(C) Nos. 3231 & 5612 of 2015 Page 10 of 24 or extinction of a legal right of the appellant. The writ petitioner before the High Court was trying to establish her right in an independent manner, that is, she has an independent legal right. It is extremely difficult to hold that she has an independent legal right. It was the first allottee who could have continued in law, if his licence would not have been cancelled. He was entitled in law to prosecute his cause of action and restore his legal right. Restoration of the legal right is pivotal and the prime mover. The eclipse being over, he has to come back to the same position. His right gets revived and that revival of the right cannot be dented by the third party."

Thus, what has essentially been laid down by the Apex Court is that the question of a person being a necessary party has to be decided on the facts and circumstances of the case. The answer to this question in the instant case would depend on the correctness of the finding rendered with regard to the order of termination issued against the terminated employee (Smt. Nirupama Mishra). Further, it must be kept in mind that the order of termination was challenged five years after issuance of the same. By such time Sri Kedarnath Swain had already been appointed and his name found place in the application submitted by the W.P.(C) Nos.3231 & 5612 of 2015 Page 11 of 24 Management of renewal of recognition every year. Of course if the order of termination itself is held to be invalid, Kedarnath Swain would not be said to have acquired any vested right despite passage of time but if the reverse were to be held, certainly he would be held to have acquired a vested right over the post. To such extent therefore, this Court is of the considered view that Kedarnath Swain being materially affected by the impugned order has the locus standi to challenge the same. Having held so, this Court deems it proper to refrain from answering the same question raised in respect of the Petitioner in other Writ Petition namely, the Managing Committee. This is for the reason that the impugned order being under challenge at the instance of Kedarnath Swain, the entire lis can be adjudicated within the four corners of the Writ Petition filed by him and therefore, under such circumstances the question whether the Petitioner in the other Writ Petition has locus standi or not becomes rather academic.

W.P.(C) Nos. 3231 & 5612 of 2015 Page 12 of 24

9. Coming to the impugned order, it has been argued that the Opposite Party No.2 had no jurisdiction to entertain the appeal in view of the Government Circular dated 15th December, 2000, which superseded the previous Circular dated 27th March, 1983. For better appreciation of the contentions raised, it would be apposite to refer to the two circulars mentioned above, which are extracted herein below;

"27.3.1983-I am directed to say that it has been brought to the notice of Government that in some private unaided educational institutions the service of the employees are being terminated arbitrarily without assigning sufficient reasons and following the principles of natural justice. Such employees are not entitled to get protection under the Orissa Educational Act, 1969 and Rules made there under. The teacher of aided Educational Institutions only have the right of appeal before State Educational Tribunal under Sub-Section (3) of Section 10-A of the Orissa Education Act, 1969. Though the employees of unaided recognized private educational institutions do not have any statutory right of appeal before any authority. Government feel that illegal termination of service in unaided recognized private educational institutions should be stopped.

It has, therefore been decided by Govt. that if an employee of any unaided W.P.(C) Nos.3231 & 5612 of 2015 Page 13 of 24 recognized private educational institution feels that this services have been terminated arbitrarily, he may file an appeal before the Director of Public Instruction, (HE) Orissa in the case of employees of unaided recognized Private Colleges, Director of Public Institution (s), Orissa in case of unaided recognized private high schools and concerned Circle Inspector of Schools in case unaided recognized private M.E. Schools within a period of one month from the date of termination who will dispose of it finally.

This matter may be brought to the notice of all concerned."

"GOVERNMENT OF ORISSA DEPARTMENT OF SCHOOL AND MASS EDUCATION.

                 ORDER
        Bhubaneswar,   Dated            the     15th
       December,2000.

No-XIV.SME Cases 86/2000, 33916/SME Government have established three composite Regional Directorates at Bhubaneswar, Berhampur, Sambalpur vide resolution No.5256/HE. Dt. 29.1.97 to look after the matters relating to both Higher Education Department and School and mass Education Department for streamlining the administration and expeditious disposal of various matters in the field education. In the said Directorate, an officer of the school branch has been posted in the rank of joint Director to look after the administration of the school Education in Orissa.

W.P.(C) Nos. 3231 & 5612 of 2015 Page 14 of 24

2.In order to decentralize the power of Director of Secondary Education it has been decided that the Regional Joint Director (school Education) shall be the appellate authority against the order of termination/removal of employees of the private unaided High Schools and Upper Primary Schools passed by the concerned Managing Committee. The concerned Regional Joint Director shall after giving a reasonable opportunity of being heard to the appellate and the concerned Management pass orders and the said order of appellate authority shall be final.

3.The Director, Secondary shall transfer all appeals expect as stated below pending, before him to all concerned Regional Joint Directors, but, he shall dispose of the appeals in respect of which Hon'ble court has passed orders directing him to dispose of notwithstanding this order.

4.This supersedes all previous G.O. on the subject.

BY ORDER OF THE GOVERNOR A.K.Tripathy, COMMISSIONER-CUM-SECRETARY TO GOVERNMENT.

10. Evidently as per Circular dated 27th March, 1983, the Director, Public Instructions, Odisha, in the case of Unaided Recognized Private High Schools was vested with the authority of hearing appeals with the further stipulation that such appeal shall have to be preferred W.P.(C) Nos.3231 & 5612 of 2015 Page 15 of 24 within one month from the date of termination. By Order dated 15th December, 2000, the Government decided to decentralize the power of Director of Secondary Education and accordingly, the Regional Joint Director, School Education was vested with the power of appellate authority against the order of termination/removal of employees of Private Unaided Recognized High Schools. Such order was in supersession of all previous Government orders on the subject. It is therefore crystal clear that after 15th December, 2000, the Regional Joint Director (School Education) only was competent to hear appeals against the orders of termination. The Director, Secondary Education ceased to have jurisdiction in this regard as would be evident from Clause-3 of the order dated 15th December, 2000 to the effect that he shall transfer all appeals to the concerned Regional Joint Director excepting those in which the High Court had directed him to dispose of. The position is therefore, very clear that the Director, Secondary Education lacked W.P.(C) Nos. 3231 & 5612 of 2015 Page 16 of 24 jurisdiction to entertain the appeal filed by Smt. Nirupama Mishra on 1st November, 2013.

Law is well settled that finding of a Court or Tribunal becomes irrelevant and unenforceable/ unexecutable once the forum is found to have no jurisdiction. Reference may be had in this regard to the decision of the Apex Court in the case of Sushil Kumar Mehta vs. Gobind Ram Bohra; reported in (1990)1 SCC 193. Though the case law relates to Courts yet the principle contained therein shall equally apply to quasi-judicial authorities like appellate forum created by administrative orders also. In short, the Director could not have exercised jurisdiction not vested on him either by statute or by executive instructions and hence, the impugned order is a nullity.

11. Both Mr. A.K.Mohanty and Mr. K.K. Swain have also harped upon the delay involved in preferring the appeal. According to them, the appeal should have been preferred within one month from the date of W.P.(C) Nos.3231 & 5612 of 2015 Page 17 of 24 termination but was preferred more than five years after. Ms. Mamata Mishra, on the other hand, submits that the stipulation of time to prefer appeal available in the Government Order dated 27.3.1983 is no longer available in the Order dated 15th December, 2000 and therefore, the Director did not commit any illegality in entertaining the same.

12. After going through the Government orders quoted above, this Court finds substance in the contention raised by Ms. Mishra for the reason that the Order dated 15th December, 2000 was issued in supersession of all previous Government Orders, which obviously includes the Order dated 27th March, 1983. Further, there is no time stipulation contained in the subsequent Government Order. However, this does not mean that an appeal can be entertained long after the cause of action arose or as and when the appellant decides to challenge the impugned order. It is the settled position of law that stale claims are not to be entertained by any authority unless sufficient cause is W.P.(C) Nos. 3231 & 5612 of 2015 Page 18 of 24 shown by the Appellant/Petitioner for not acting with promptitude earlier. In the instant case, not a whisper has been made to explain as to what prevented Mrs. Mishra from preferring appeal after her alleged termination till lapse of nearly five years. In the absence of any explanation, this Court is also of the view that the so-called appeal preferred by her should not have been entertained.

13. Notwithstanding the finding of this Court regarding lack of jurisdiction of the Director to hear the appeal in question as adumbrated in the preceding paragraphs, this Court feels it proper to also consider the merits of the case. It is alleged that Mrs. Nirupama Mishra remained unauthorizedly absent from her duties from 2nd April, 2007 onwards. Copies of the relevant extracts from the Teachers' Attendance Register have been enclosed to the Writ Petition in W.P.(C) No.3231/2015. It is claimed that show cause notices were issued to Ms. Mishra by the Management on 5th June, 2008, 10th July, 2008 and 29th July, 2008. Of course, there is no W.P.(C) Nos.3231 & 5612 of 2015 Page 19 of 24 evidence to show that the said notices were served upon her. Be that as it may, Smt Mishra herself remained silent till 1st November, 2013 when she preferred appeal against the action of the Management in allegedly not permitting her to sign on the Attendance Register. In the mean time, Kedarnath Swain having been appointed, his name was included in the list of Staff by the Management in the application form submitted to the Board for renewal of recognition. Further, the impugned order itself reveals that the District Education Officer, Puri reported that Ms. Mishra remained absent unauthorizedly w.e.f. 2nd April, 2007. In the counter affidavit filed by Smt. Mishra, such allegations have simply been denied but in view of the fact that she never approached any authority in this regard for as long as five years only goes to fortify the allegation that she had remained absent from her duties. Whether this would amount to a case of voluntary abandonment of service on her part. Reference may be had in this regard to the decision of the Apex Court in the case of G.T.Lad v. Chemical & W.P.(C) Nos. 3231 & 5612 of 2015 Page 20 of 24 Fibres of India Ltd.; reported in 1979(1) SCC 590 wherein the following was observed;

"In the Act, we do not find any definition of the expression 'abandonment of service'. In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English Language. In the unabridged edition of the Random House Dictionary, the word 'abandon' has been explained as meaning 'to leave completely and finally; forsake utterly; to relinquish, renounce to give up all concern in something. According to the Dictionary of English Law by Earl Jowitt (1959 edition) 'abandonment' means 'relinquishment of an interest or claim'. According to Black's Law Dictionary 'abandonment' when used in relation to an office means voluntary relinquishment. It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute an 'abandonment of office'.

From the quotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham and Venkatiah, it was observed by this Court that under W.P.(C) Nos.3231 & 5612 of 2015 Page 21 of 24 common law an inference that an employee has abandoned or relinquished service is not easily drawn unless form the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstance of each case."

14. This Court in the case of Orissa Bridge and Construction Corporation Ltd. v. Surendra Chandra Das; reported in 2009 (Supp.-II) OLR-797 observed as under;

"It is settled law that as a Government servant cannot be terms as a slave, he has a right to abandon the service any time voluntarily by submitting has resignation and alternatively, non-joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct, but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer."

W.P.(C) Nos. 3231 & 5612 of 2015 Page 22 of 24

15. Referring to the above decision, a Division Bench of this Court in a judgment pronounced on 26th October, 2021 in W.A. Nos.379/2019 and 665/2019 held as follows;

" In that event there was no obligation on the college in question to have, in fact, complied with any rules of natural justice. In the present case the college has been able to convincingly demonstrate that Respondent No.3 remained unauthorizedly absent after 1st April, 2000. He has not been able to place any material to the contrary on record. Therefore, holding and enquiry would indeed be a futile exercise. In any event with three SCNs having been issued to Respondent No.3, to which he chose not to respond, he cannot complain of any violation of the principles of natural justice."

16. The present case stands on the same footing. It is reiterated that the conduct of the Petitioner in remaining silent for more than five years after the cause of action arose strongly suggest that she had voluntarily abandoned her service at the relevant time and subsequently woke up from her deep slumber apparently to get the benefit of grant-in-aid. W.P.(C) Nos.3231 & 5612 of 2015 Page 23 of 24

17. Thus, from a conspectus of the analysis and discussion made and the reasons indicated herein before, this Court has no hesitation in holding that the impugned order cannot be sustained in the eye of law, for which the same is quashed.

18. Both the Writ Petitions are disposed of accordingly.

.................................. Sashikanta Mishra, Judge Ashok Kumar Behera W.P.(C) Nos. 3231 & 5612 of 2015 Page 24 of 24 W.P.(C) Nos.3231 & 5612 of 2015 Page 25 of 24 W.P.(C) Nos. 3231 & 5612 of 2015 Page 26 of 24 W.P.(C) Nos.3231 & 5612 of 2015 Page 27 of 24

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