Orissa High Court
Nagendra Panda vs The Writ Petition Involves The ... on 25 October, 2021
ORISSA HIGH COURT : C U T T A C K
WP(C) NO.7873 OF 2006
In the matter of an application under Articles 226 & 227 of the Constitution of
India
Nagendra Panda : Petitioner
-Versus-
State of Orissa & Others : Opp.Parties
For Petitioner : M/s.C.Mallick, J.Sahoo, S.Mishra
& B.M.Mohapatra
For O.Ps.1 & 2 : Mr.U.K.Sahoo, ASC
For O.P.3 : None
For O.P.4 : Mr.S.N.Sharma
CORAM :
JUSTICE BISWANATH RATH
Date of hearing & Judgment :: 25.10.2021
1. The Writ Petition involves the following prayer :-
"Under the circumstances the petitioner humbly prays
that this Hon'ble court may be graciously pleased to admit the
writ application and issue notice to the Opposite Parties to show
cause as to why this writ application shall not be allowed and be
pleased to direct the Opposite Party No.3 to reinstate the
petitioner with direction to the Opposite Party No.2 to approve
the petitioner in the non-teaching cadre and pay salary to him
and/or be pleased to set aside Annexure-9 and direct the
O.P.No.5 to entertain and hear the E.T. Appeal No.163/2005
and/or be pleased to call upon the O.P. No.2 submit his report
(if any) done pursuant to Annexure-4 and in the meantime
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direct the O.P. No.2 not to approve any other person in the
vacancy of the petitioner and for which act of kindness the
petitioner shall as in duty bound every pray."
2. Background
involving the case is that the Establishment involved
claimed to be an Aided Educational Institution. The Petitioner was
appointed as a Junior Clerk on 25.11.89, vide Annexure-1. In 1993 a
grievance petition was made alleging in spite of appointment of the
Petitioner and distribution of Duty Chart to the Petitioner, he was not paid
his salary. Finding no respite from the Competent Authority, it appears,
the Petitioner filed OJC No.1835 of 1993. This Writ Application was
finally disposed of by this Court, vide Annexure-4 directing to sanction
and pay the salary of the Petitioner in the event he was in fact discharging
his duty. It is based on such direction in disposal of the Writ Application,
the Director considered the issue but however based on an objection by
the Institution that the Petitioner was never appointed and/or engaged, the
Director declined to entertain the claim of the Petitioner on salary. Being
aggrieved by the order of the Director and for the dispute involving
undisclosed termination of the Petitioner taking place, the Petitioner again
approached this Court in W.P.(C) No.4099 of 2003 for appropriate relief.
For a remedy under Section 10-A of the Orissa Education Act being
available, this Court in disposal of W.P.(C) No.4099 of 2003 permitted
the Petitioner to undertake the exercise of Appeal. The Petitioner thus
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preferred an Appeal bearing E.T.Appeal No.163 of 2005. This Appeal
being heard and disposed of on contest, the State Education Tribunal by
order dated 23.2.2006, vide Dnnexure-9 herein dismissed the Appeal on
the ground of maintainability under the observation that there has been no
order of termination involved therein required to be considered in
exercise of power under Section 10-A of the Education Act. Being
aggrieved by such order of the Tribunal, the Petitioner preferred the
present Writ Petition with the prayer involved and as quoted herein
above.
3. Assailing the impugned order of the Tribunal, the Petitioner in
reference to the document at Annexure-1 claimed to have been appointed
as Junior Clerk in-charge of Accounts by the Institution involved herein
dated 25.11.1989. The Petitioner has also made his claim on the basis of a
Duty Chart claiming to have been served on him, vide Page-25 of the
Brief. It is in the above direction and taking to the background involving
the factual aspect in Paragraph-1 of the Memorandum of Appeal,
Mr.J.Sahu, learned counsel for the Petitioner submitted that in spite of the
Petitioner claiming involvement of an unwritten and undisclosed
termination order, the Tribunal misconstrued to observe that it cannot
exercise power under Section 10-A of the Act in absence of an order of
termination or disengagement. It is in the above premises, referring to the
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provision at Section 10-A of the Act, learned counsel for the Petitioner
claimed, there has been wrong and erroneous dismissal of the Appeal and
requested this Court for interfering with the appellate order and passing
appropriate order.
4. Sri U.K.Sahoo, learned Additional Standing Counsel in reference
to the objection of the Authority involved herein to the claim of the
Petitioner contended that in fact, there has been no appointment of the
Petitioner by the Institution at any point of time. Further in the objection
in the Appeal clearly objecting the claim of the Petitioner on the question
of engagement of the Petitioner, Mr.Sahoo, learned Additional Standing
Counsel contended that there is no wrong on the part of the Education
Tribunal in dismissing the Appeal on the ground of having no
jurisdiction. Mr. Sahoo also referred to the grounds taken in the counter
affidavit by O.P.2 available on record.
5. In spite of notice and appearance of a set of Counsel for the O.P.4,
nobody is present in Court. This Court finds from the order-sheet, the
State Authority has received notice on behalf of O.P.3. This Court here
records the statement of Mr.U.K.Sahoo, learned Additional Standing
Counsel defending the findings of the Tribunal also on behalf of O.P.3
and taking support of the plea of the State, as referred to herein above, in
justification of the impugned order.
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6. Considering the rival contentions of the Parties, this Court finds,
the Petitioner all through has brought to the notice of all the forums even
including the High Court regarding the order of appointment being issued
by the Principal, Olaver College on 25.11.1989, vide Annexure-1. This
Court here finds, the Petitioner remained consistent in such plea in all the
proceedings involved herein. This Court at this time finds, the contesting
Opposite Parties also all through have raised a dispute on the claim of the
Petitioner on the appointment order being issued in his favour. It is based
on such appointment order, the Petitioner also claiming that even though
the Petitioner has been engaged for some time but has never been paid
and ultimately on the premises of no payment and not allowing to work to
the Petitioner, the Petitioner pleaded that there is unwritten termination
and thus made the claim before all the forums involved herein. It is
keeping this in view, this Court finds, in disposal of W.P.(C) No.4099 of
2003, vide Annexure-7, this Court passed the following :-
"Heard.
Learned counsel for the petitioner wants to withdraw this
writ petition with liberty to file an appeal before the appellate
authority under Section 10(A) of the Orissa Education Act.
The writ petition is accordingly dismissed as withdrawn.
If the petitioner files the appeal along with an application
for condonation of delay, delay shall be condoned and the
appeal shall be decided as per law."
7. Keeping in view the direction of the Division Bench of this Court,
this Court observes, once the High Court directed the Appellate Authority
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to exercise it power under Section 10-A of the Act keeping in view the
particular pleading involved therein and until and unless such order is
challenged in higher forum and set aside, it is not open to the Appellate
Authority to get into the question of entertainability of application under
Section 10-A of the Act and once Section 10-A Application is entertained
depending on the order of the Division Bench of this Court, the Tribunal
has the only duty to get into the question raised with regard to demand
raised involving the appellate order and the objection being raised by the
Institution involved disputing such appointment order and has its finding
on such issue. There is mechanical exercise of power in disposal of
Appeal, which unless is set aside, there will be setting of bad precedence..
8. It is in this view of the matter, this Court finds, the order at
Annexure-9 is not sustainable in the eye of law. Accordingly, this Court
remits the matter to the Orissa Education Tribunal, Bhubaneswar for re-
consideration of the Appeal giving opportunity of contest to both parties
likely to be aggrieved and passing an independent order. This Court
makes it clear that it has not expressed any opinion on merit of either of
the Parties and independent view is required to be taken by the Tribunal.
The matter since disposed of hearing the Counsel for the Petitioner and
the learned State Counsel, the petitioner and the Department involved are
directed to appear before the Appellate Authority on 22nd November,
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2021 and bring the order to the notice of the Tribunal for its further
proceeding and re-adjudicating the matter. Since the Managing
Committee was not noticed and allowed to be represented through the
State, the Tribunal shall issue notice to the Managing Committee giving
opportunity to the Managing Committee and dispose of the matter but
however completing the entire exercise within a period of eight months
from the date of communication of this order.
9. With the above order, the Writ Petition stands disposed of.
...............................
(Biswanath Rath, J.)
Orissa High Court, Cuttack.
The 25th October, 2021/MKR, A.R.-cum-Sr.Secy.
