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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 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 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.

(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 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.

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 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.

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 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.