Governing Body Of Ananda Sahu vs State Of Odisha And Others
2021 Latest Caselaw 10945 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

         W.A. No.379 of 2019 and W.A. No.665 of 2019

In W.A. No.379 of 2019
Governing Body of Ananda Sahu
Women's College, Nayagarh                      ...               Appellant
                                    Mr. K.K. Swain, P.N. Mohanty, B. Jena,
                                    K. Swain and J.R. Khuntia, Advocates.
                       Versus
State of Odisha and Others                     ...           Respondents
                             Mr. M.S. Sahoo, A.G.A (for Respondents-1 & 2)
                                 Mr. Budhadeb Routray, Senior Advocate and
           Mr. R.P. Dalai, K. Mohanty, S.K. Samal, S.D. Routray & J. Biswal
                                               (Advocates for Respondent-3)
          Dr. J.K. Lenka, P.K. Behera & P. Das (Advocates for Respondent-4)



In W.A. No.665 of 2019
Puspalata Sahoo                               ...                Appellant
                                               Dr. J.K. Lenka, P.K. Behera,
                                               and P. Das, Advocates
                       Versus
State of Odisha and Others                    ...            Respondents
                             Mr. M.S. Sahoo, A.G.A (for Respondents-1 & 2)
                                Mr. Budhadeb Routray, Senior Advocate and
            Mr. R.P. Dlai, K. Mohanty, S.K. Samal, S.D. Routray & J. Biswal
                                               (Advocates for Respondent-3)
                           Mr. K.K. Swain, P.N. Mohanty, B. Jena, K. Swain
                              and J.R. Khuntia (Advocates for Respondent-4)

CORAM :
            THE CHIEF JUSTICE
            JUSTICE B.P. ROUTRAY
                            JUDGMENT

26.10.2021

Dr. S. Muralidhar, CJ.

1. These two writ appeals arise out of the same set of facts and accordingly they are disposed of by this common judgment.

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2. Writ Appeal No.379 of 2019 has been filed by the Governing Body of Ananda Sahu Women's College, at Kurala in the district of Nayagarh (hereinafter referred to as "the College in question") against the order dated 25th April, 2019 passed by the learned Single Judge of this Court allowing Writ Petition (Civil) No.2144 of 2010 filed by Sri Prabhat Kumar Bidhar (Respondent No.3) and setting aside the order dated 30th May, 2000 of the Governing Body of the College in terminating the services of Respondent No.3 as Lecturer in Odia as well as the order dated 28th December, 2009 passed by the Director, Higher Education, Orissa, Bhubaneswar (Respondent No.2) dismissing the Appeal filed by Respondent No.3.

3. The connected writ appeal, W.A. No.665 of 2019 is by Ms. Puspalata Sahoo, who is at present the Lecturer in Odia in place of Respondent No.3 in the college in question. Her appeal is also against the same impugned judgment of the learned Single Judge. She is arrayed as Respondent No.4 in W.A. No. 379 of 2019 filed by the college.

4. The background facts are that, the college in question was established at Kurala (now shifted to Komanda) in Nayagarh district in 1990 and received recognition from the prescribed authority from the academic session 1990-91. On 22nd February, 1995 Respondent No.3 was appointed as a Lecturer in Odia by the Governing Body of the College. He joined the said post on 25th February, 1995.

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5. The case of the college is that the very appointment of Respondent No.3 was ab initio void, since he did not possess 54% marks in the M.A. Examination as mandated by Regulation 90 (6) of the Orissa Higher Secondary Education Regulations 1982 ('Regulations'). In terms of Regulations 90 (6) of the Regulations, to be appointed as a teacher in a junior college/higher secondary school, the candidate should have secured at least a second-class Master's Degree in the subject concern ed with a minimum of 54% of marks. It is pointed out that, so far as Respondent No.3 is concerned, the percentage of marks in his M.A. examination was 49.75%.

6. On 16th April, 2000 a show-cause notice (SCN) was issued by the Governing Body of the College to Respondent No.3 for remaining unauthorizedly absent for a long period. Since Respondent No.3 belongs to the same village where the College is situated, the SCN was directed to be served upon him through the peon of the College. But Respondent No.3 refused to receive the said SCN from the peon Purna Candra Tripathy, and abused the peon in a filthy language. Thereafter, the said peon in presence of two villagers of village Kurala, namely Uchhaba Patra and Sridhara Mishra, affixed the SCN on the wall of the house of Respondent No.3 and submitted a report to the Secretary of the Governing Body of the College to that effect.

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7. A second SCN was issued on 27th April, 2000 by the Secretary of the Governing Body to Respondent No.3 in the same manner through the college peon. This time again Respondent No.3 refused to accept the SCN and therefore the notice was affixed on the wall of the house of Respondent No.3 in the presence of two villagers.

8. An SCN for the third time was issued by the Governing Body of the college on 18th May, 2000, which was again refused to be accepted by Respondent No.3 and therefore it was again affixed on the wall of his house in the presence of two villagers and a report to that effect was sent to the Secretary of the Governing Body of the college.

9. After Respondent No.3 declined to receive the SCNs thrice, the Governing Body of the college terminated his services by a Resolution dated 30th May, 2000. This was communicated to Respondent No.3 by Office Order No.33 of the same date by the Secretary of the Governing Body of the College.

10. It is stated that, one Sri Purna Chandra Nayak was appointed as Lecturer in Odia in place of Respondent No.3 with effect from 1st May, 2000. The said Sri Nayak continued in that post till 17th May, 2004 when he resigned. On 2nd June, 2004 Ms. Puspalata Sahoo (Respondent No.4) was appointed as Lecturer in Odia. She is stated to be presently continuing in service in the college. As noted earlier Puspalata Sahoo has filed a

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separate Writ Appeal No.665 of 2019 challenging the very same impugned order of the learned Single Judge.

11. It is stated that, on 15th September, 2008, more than eight years after the termination of his services, Respondent No.3 filed W.P.(C) No.12644 of 2008 in this Court praying for a direction to Respondent No.2 to dispose of his appeal which was stated to have been preferred on 5th January 2002. The said writ petition was disposed of by an order dated 15th September, 2008 of this Court with a direction to Respondent No.3 to approach Respondent No.2 with an application for early disposal of the appeal.

12. After hearing the parties, Respondent No.2 by an order dated 28th December, 2009 dismissed the appeal filed by Respondent No.3 holding that the Management of the College had followed the due procedure by giving sufficient opportunities to Respondent No.3 before terminating his services.

13. On 16th March, 2012 the college in question was notified as an aided educational institution in terms of Section 3 (b) of the Odisha Education Act, 1969 read with the Grant-in-Aid Order, 2008. Therefore, from that date, the college in question acquired the status of an aided educational institution.

14. This Court has heard the submissions of Mr. K.K. Swain, learned counsel appearing for the College, Mr. Budhadeb Routray, learned Senior Counsel appearing for Respondent

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No.3 and Dr. J.K. Lenka, learned counsel appearing for Respondent No.4 (who is also appellant in W.A. No.665 of 2019). Submissions of Mr. M.S. Sahoo, learned Addl. Govt. Advocate for the State have also been heard by this Court.

15. It is seen that the learned Single Judge has sought to interfere with the impugned order of termination on the ground that it is unsustainable. According to the learned Single Judge, all the three SCNs merely asked for an explanation of the Petitioner and with a clear indication that in the event of dissatisfaction with his response, the Governing Body may go in for disciplinary action against Respondent No.3. It was accordingly held by the learned Single Judge that the Governing Body was obliged to follow the procedure set out in Rule 22 of the Odisha Education (R.C.S.T.M.S.A.E.I.) Rules, 1974. (1974 Rules) by holding a disciplinary enquiry before terminating his services.

16. At the outset it is required to be noticed that, at the relevant time when the termination order was issued on 30th May,2000, the college in question was an un-aided educational institution. It received the Block-Grant only with effect from. from 16th March, 2021. It was only from that date it acquired the status of an aided educational institution.

17. A perusal of the 1974 Rules makes it abundantly clear that they do not apply to unaided educational institutions. Therefore, a fundamental error was committed by the learned Single Judge in so far as it was held that Rule 22 of the 1974 Rules was

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required to be complied with by the management of the college and its failure to do so vitiated the order of termination.

18. Interestingly, a letter dated 27th March, 1983 of the Odisha Education Department clarifies the position in the context of the right of appeal of employees of unaided recognized private educational institutions. The said clarification reads as under:

"I am directed to say that it has been brought to the notice of Government that in some private unaided educational institutions the services 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 Odisha Education Act, 1969 and Rules made thereunder. The teachers of aided Educational Institutions only have the right of appeal before State Educational Tribunal under Sub-Section (3) of Section 10-A of the Odisha 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 institution should be stopped. It has therefore been decided by Govt. that if an employee of any unaided recognized private educational institution feels that his services have been terminated arbitrarily, he may file an appeal before the Director of Public Instruction,(HE) Odisha in the case of employees of unaided recognized Private Colleges, Director of Public Instruction(s), Odisha in case of unaided recognized private high schools and concerned

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Circle Inspector of Schools in case of unaided recognized private M.E. Schools within a period of one month from the date of termination, who will dispose of it finally."

19. It is therefore clear that, as far as the present case is concerned, 1974 Rules had no applicability to the college in question at the time the impugned order of termination of the services of respondent No.3 was passed.

20. It was sought to be contended by Mr. Budhadev Routray, learned Senior Counsel appearing for Respondent No.3, that in from the Attendance Register of the college during the relevant period, copies of which have sought to be placed for the first time in this appeal, it is evident that Respondent No.3 had discharged his duties till 22nd December, 2001. Thereafter, there were winter vacations from 23rd December, 2001 till 1st January, 2002. According to respondent No.3, on the very next day when Respondent No.3 went to the college, he was prohibited by the Secretary of the College from entering the college premises.

21. It was further contended by Mr. Routray that, in the above background if Respondent No.3 had got an opportunity in a disciplinary proceeding, he could have established his case by adducing evidence to show that he had continuously discharged his duties as indicated hereinbefore.

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22. A pointed question was posed by the Court to Mr. Routray, whether there was any such plea taken by the Petitioner in his writ petition that he continued to attend office after the date of the first SCN? No clear answer was forthcoming. The Court then perused the writ petition filed by the Petitioner. The relevant averments in para-14 read thus:

"That, while the matter stood thus and the present petitioner was discharging his duty uninterruptedly, the then Secretary suddenly prohibited the present petitioner to enter into the college premises and to discharge his normal duty on 2.1.2002, i.e. after reopening of the college after winter vacation and on enquiry the present petitioner came to know that only to accommodate someone in his place, the present petitioner was prohibited to discharge his normal duty, which amounts to termination."

23. Clearly, therefore, there was no specific plea that even after the first SCN i.e. after 1st April, 2000, Respondent No.3 was attending the college. Also, nowhere in the petition or in the rejoinder affidavits is there any mention of the attendance register. How it suddenly emerged as enclosure to the written submissions filed in the appeal is a mystery. There is no opportunity to the college to even verify its authenticity. Be that as it may, if indeed, as claimed by him, Respondent No.3 continued to discharge his duties till 2nd January, 2002, then he should have been receiving his salary/pay till then from 1st April, 2000 onwards. That would show whether in fact he was working in the college during the aforementioned period. There is no such material placed on record before the learned Single

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Judge or this Court. Mr. Routray was silent on this aspect and was clearly not in a position to point out whether in fact Respondent No.3 received any pay for this period. It is unlikely that Respondent No.3 would have continued to work without receiving pay or not have complained if he failed to receive his pay for the period. There is no pleading to that effect anywhere in the writ petition or in the rejoinder affidavits filed by him before the learned Single Judge. Therefore, it is plain that a new case is sought to be built up by him before this Court in this appeal, and that cannot be permitted.

24. Respondent No.3 has no satisfactory explanation to the fact that despite three SCNs issued to him, he did not respond. The reports of service of the SCNs on him by affixing them on the door of his house, which have been placed on record, have also not been able to be convincingly disputed by Respondent No.3.

25. Mr. Routray, learned Senior Counsel for Respondent No.3, has also not been able to point out how Rule 22 of the 1974 Rules had any applicability to the college in question at the relevant time of termination of the services of Respondent No.3 when it was an unaided educational institution.

26. Mr. Swain, learned counsel for the college, is right in his submission that with the Respondent No.3 remaining continuously absent from service for a long period of time, this was a case of abandonment of service. In Orissa Bridge and

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Construction Corporation Ltd. v. Surendra Chandra Das 2009 (Supp.-II) OLR - 797, this Court observed as under:

"7. It is settled law that as a Government servant cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his 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 voluntarily 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."

27. 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 an 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.

28. In S.L. Kapoor v. Jagmohan (1980) 4 SCC 379, the Supreme Court explained that "In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will come from a

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person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs."

29. In Aligarh Muslim University v. Mansoor Ali Khan 2000 SCC (L&S) 965, the Supreme Court explained the 'useless formality' theory which was an exception to the requirement of compliance with the rules of natural justice. The Supreme Court explained the doctrine with the following illustration:

"Let us then take two situations. An employee who is permitted to be abroad for two years on a job seeks extension for 3 years but is granted extension only for 1 year and is also told in advance that no further extension will be given and if does not join after the 1-year extended period, he will be deemed to have vacated office. Let us assume that he does not join as advised and, in a given case, notice is given calling for his explanation. He replies stating that he had entered into a further commitment for 2 years and wants one more year of extension. The University refuses extension treating the explanation unsatisfactory and under Rule 5 (8)(i) deems that he has vacated his job. No fault can be found in the procedure. Let us take another situation where the officer does not join in identical circumstances but is not given notice under Rule 5 (8)(i). He has no other explanation - from what is revealed in his writ petition filed later - other than his further commitment abroad for 2 more years. In the latter case, it is, in our opinion clear that even if no notice is given, the position would not have been different because what particular explanation

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would not be treated as satisfactory had already been intimated to him in advance. Therefore, the absence of a notice in the latter situation must be treated as having made no difference."

30. The Court has also perused the impugned order of the Respondent No.2 dismissing the appeal. There is a categorical finding that the termination of the services of Respondent No.3 was lawful. Interestingly the documents sought to be produced by Respondent No.3 before the appellate authority to show that he was working beyond 1st April, 2000 were found to be of doubtful authenticity. Be that as it may, this Court is satisfied that in the present case no illegality has been committed by the college in passing the order terminating the services of Respondent No.3.

31. The impugned order dated 25th April, 2019 of the learned Single Judge is therefore set aside and both the writ appeals are allowed. However, in the circumstances, there shall be no order as to costs.

32. An urgent certified copy of this judgment be issued as per the rules.

( S. Muralidhar) Chief Justice

(B.P. Routray) Judge S.K. Parida