Shri Udaya Kumar Jena vs Director Of Secondary Education
2021 Latest Caselaw 640 Ori

Citation : 2021 Latest Caselaw 640 Ori
Judgement Date : 20 January, 2021

Orissa High Court

Shri Udaya Kumar Jena vs Director Of Secondary Education on 20 January, 2021

                   HIGH COURT OF ORISSA: CUTTACK

                       W.P.(C) No.2004 of 2002

       In the matter of an application under Articles 226 & 227 of
       the Constitution of India.
                                    -----------
       Shri Udaya Kumar Jena                      ....         Petitioner

                                             Versus

       Director of Secondary Education, Odisha
       and others                           ....            Opp. parties

               For Petitioner         ...   M/s. J.K. Rath, Mr. S.N. Rath,
                                          Mr. P.K.Rout, Mr. S. Mishra,
                                          Mr. C.K. Rajguru and
                                          Mr. D.N. Dash.

               For Opposite           ...   Mr. B. Sapathy,
               Party Nos.1 & 2            learned Standing Counsel for
                                          School and Mass Education
                                          Department.

               For Opposite           ...   None
               Party No.3
                          JUDGMENT

PRESENT:

THE HONOURABLE JUSTICE BISWANATH RATH

Date of Hearing and Judgment : 20.01.2021

Biswanath Rath, J. This writ petition involves a challenge to

the order of disengagement dated 04.12.2002 appearing at

Annexure-6 brought by way of amendment to the writ

petition.

2. Sri Rath, learned Senior Counsel for the

petitioner taking this Court to the reference of the

Resolution of the Managing Committee dated 15.10.1994

submitted that the Resolution was the reason of termination

of the petitioner on the earlier occasion. Taking this Court

through the pleadings and the developments through

Annexure-1, Sri Rath contended that the order of

termination of the Managing Committee was set aside by

the Appellate Authority and for the remittance of the matter

to the Managing Committee for fresh consideration of the

case involving the petitioner however, providing opportunity

of hearing to the petitioner, there was fresh submission of

charge-sheet on the petitioner through Annexure-4. It is

pursuant to submission of charge-sheet and asking for

explanation through the show-cause notice, vide Annexure-

4, it appears petitioner has already submitted his

explanation vide Annexure-5 of the brief.

3. It is in this situation of the matter and once the

termination order passed by the Managing Committee in

the year 1994 was set aside, Sri Rath, learned Senior

Counsel for the petitioner taking this Court to the reason

involving the impugned order at Annexure-6 submitted that

there is no question of again referring to the Resolution of

the Managing Committee, which was not in existence as per

law. Further Sri Rath also contended that there is also a

glaring defect in the impugned order, inasmuch as, when

the order of termination was passed on 04.12.2002, there

cannot be retrospective termination of an employee, which

is also contrary to law. It is in the circumstance, Sri Rath,

learned Senior Counsel for the petitioner submitted that this

Court interfering in the impugned order ought to set aside

the same and grant appropriate relief to the petitioner.

4. In spite of appearance of a set of counsels for

opposite party no.3-Management, nobody is attending in

the case. However, Sri Satpathy, learned Standing Counsel

for the School and Mass Education Department submitting

his objection to the claim of the petitioner submitted that

once there is an order of termination, the same is

appellable, but he however did not dispute to the

proposition advanced by Sri Rath, learned Senior counsel

for the petitioner that there is wrong application of non-

existing of the Managing Committee again there cannot be

also retrospective termination involving an employee. He,

however, submitted that for the development taken place in

the meantime that the vacancy caused for the termination

of the petitioner, there has been an appointment of a

person, who has been paid all through. Sri Satpathy

therefore contended that there may be further complication

in the event there is a positive direction in favour of the

petitioner herein, keeping in view the fact that no stay

order on the impugned order has been granted while

entertaining the writ petition.

5. Considering the rival contentions of the parties

and on perusal of the objection of Sri Satpathy that the

impugned order is appellable, this Court observes that the

writ petition was entertained in the year 2002 having the

cause of action and kept pending in this Court for no fault

of the petitioner for last 18 years. It is in this view of the

matter, this Court finds no worth directing the petitioner to

go for appeal instead this Court proceeding for deciding the

matter on merit.

6. Now coming to the other aspect involved in the

writ petition and looking to the contention raised by Sri

Rath, learned Senior Counsel for the petitioner that the

Resolution of the Managing Committee terminating the

petitioner dated 15.10.1994 since not being in existence for

the order involving Annexure-1 passed by the Appellate

Authority, this Court on perusal of the order involving

Appeal Case no.16 of 1999 through Annexure-1, finds the

concluding part of the Appellate Order appearing at Page-16

and 17 reads as follows :

"When admittedly the applicant was terminated from service, the Managing Committee has not produced any cogent evidence to have followed the principles of natural justice by rendering opportunities to submit any show cause to the appellant.

The termination of the appellant is, therefore, set aside. The Managing Committee should afford proper opportunity to the appellant on the charges against him and to take a decision within 2 months from receipt of this order.