Orissa High Court
Jayanti Kumar Mishra vs State Of Odisha And Others on 13 October, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OA) No. 1187 of 2011
Jayanti Kumar Mishra ..... Petitioner
Mr. S.R. Pati, Adv.
Vs.
State of Odisha and others ..... Opposite Parties
Mr. S. Jena, Standing Counsel S&ME
CORAM:
DR. JUSTICE B.R. SARANGI
ORDER
13.10.2022
Order No. This matter is taken up through hybrid mode.
01.
2. Heard Mr. S.R. Pati appearing on behalf of Mr. R. Achary,
learned counsel for the petitioner and Mr. S. Jena, learned
Standing Counsel for School and Mass Education Department.
3. The petitioner has filed this writ petition seeking direction
to the D.I. of Schools, Balasore-1 to allow her to work as primary
school teacher against an available vacancy under his control and
further issue direction to the said opposite party to pay her salary
components as due and admissible from the date of her posting in
Aghiria U.P. school by including her name in the gradation list for
her promotional avenue.
4. Learned counsel for the petitioner contended that the
petitioner was remained absent for some day and thereafter when
she wanted to join, she was prevented to work in the school.
Therefore, the petitioner could not render her service and as a
consequence thereof she has filed this writ petition seeking
aforesaid relief.
5. Mr. S. Jena, learned Standing Counsel for School and Mass
Education Department contended that the petitioner was remained
unauthorized absent from duty for years together and after lapse of
more than 20 years, she has filed this writ petition seeking
aforesaid relief which is not permissible. It is contended that the
petitioner is estopped from making any claim to work as primary
school teacher, as in her place opposite party no.4 had already
joined vide order dated 09.04.1992. It is contended that the
petitioner was posted on 16.07.1992 as Asst. Teacher in Aghiria
Primary School under Sadar Block Balasore with a direction to
join by 31.07.1992 positively. The petitioner joined at Aghiria
Primary School on 12.08.1992 and continued till 31.08.1992.
Thereafter, w.e.f. 01.09.1992 she remained absent from her duties
un-authorizedly, as has been reported by the BEO, Sadar Balasore,
vide letter dated 04.04.2014. It is contended that the petitioner was
remained un-authorized absent w.e.f. 01.09.1992 and thereby her
claim to allow her to continue in service does not arise. As such,
remaining unauthorized absence for a quite long time amounts to
abandonment of service, in view of the judgment of the apex
Court in the case of Vijay S. Sathaye v. Indian Airlines Ltd. (SLP
(C) No. 24220-24221 of 2007 disposed of on 06.09.2013), by
which the apex Court held that absence from duty in the beginning
may be a misconduct but when absence is for a 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. Thus it
is contended that the petitioner cannot claim the benefit, as has
been prayed in the writ petition.
6. Having heard learned counsel for the parties and after going
through the records, this Court finds that the petitioner was
remained un-authorized absent for a quite long time, which
amounts to abandonment of service. But a plea has been taken by
the petitioner that she was prevented from discharging her duty. In
that case, the same amounts to dismissal from service. As such,
the petitioner has to prefer appeal at that relevant point of time.
But now she cannot claim to get employment and, as such, due to
long absence from service, which amounts to abandonment of
service, continuance of service comes to an end automatically
without requiring any order of the employer. Consequentially, the
relief sought by the petitioner is not admissible.
7. Accordingly, the writ petition merits no consideration and
the same is hereby dismissed.
(DR. B.R. SARANGI)
JUDGE
Ashok
