Managing Committee Of vs Regional Director Of Education
2023 Latest Caselaw 3153 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK


                 W.P.(C) No.8930 OF 2011

(An application under Articles 226 and 227 of the Constitution
of India)

 Managing Committee of
 Kanak Durga High School,
 Nischinta, Balasore          ... Petitioner
                     -versus-

 Regional Director of Education,
 Bhubaneswar and others
                             ... Opposite Parties


 Advocates appeared in the case through hybrid mode:

    For Petitioner                    : Mr.A.K.Mohanty-A,
                                        Advocate
                                -versus-


    For Opposite Party
    Nos.1 and 2                         : Mr. B.P.Tripathy,A.G.A.

    For Opposite Party
    No.3                                : Mr. S.K.Das,
                                          Advocate

    For Opposite Party
    No.4                                 : Mr.S.C. Puspalaka,
                                            Advocate
    --------------------------------------------------------------------------
    CORAM:

                 JUSTICE SASHIKANTA MISHRA


                                                               Page 1 of 8
                                     JUDGMENT

11.4.2023.

Sashikanta Mishra,J. The Petitioner is the Managing Committee

of Kanak Durga High School at Nischinta in the district

of Balasore. The School was established in the year

1987 and got recognition in the year 1991. It received

grant-in-aid w.e.f. 1st April, 2008. One Sanjaya Kumar

Mishra (Opposite Party No.3) was appointed as a

Classical Teacher in the School on 26th August, 1990

and joined as such on 1st September, 1990. He

remained unauthorizedly absent from the School for

days together for which the Managing Committee

issued show cause notices to him by registered post

repeatedly to his permanent address, but all such

notices were returned un-served due to absence of the

addressee. The notice was therefore, published in the

local daily 8Ajikali9. Despite such notices, the Opposite

Party No.3 neither submitted any reply nor joined in

his duties. The Managing Committee therefore, in its

Resolutions dated 9th February, 2002 and 8th May,

2003 unanimously resolved to initiate disciplinary

action against him. At this stage, the Opposite Party

No.3 is said to have submitted resignation on 5th

September, 2004, which was accepted by the

Managing Committee in its resolution also passed on

the same date. The Managing Committee thereafter

appointed one Sarojini Pati as Classical Teacher, but it

came to light that she was already appointed in

another School and had also contested in the election

to the post of Sarpanch of Sindhia Grama Panchayat.

She therefore, resigned from her post, which was

accepted on 2nd January, 2007. The Managing

Committee thereafter appointed Opposite Party No.4 as

Classical Teacher after adopting due procedure of

selection. The Opposite Party No.3 approached this

Court in W.P.(C) No.19570/2008, which was permitted

to be withdrawn with liberty to approach the Regional

Director. He thereafter filed an appeal before the

Regional Director being Appeal Case No.135/2009. The

said appeal was allowed by the Regional Director by

order dated 11th March, 2011 (copy enclosed as

Annexure-4) whereby, the action of the Management in

preventing Opposite Party No.3 to perform duty was

held illegal and it was directed to reinstate him in his

post with immediate effect. The said order is impugned

in the present Writ Petition.

2. Heard Mr. A.K.Mohanty-A, learned counsel

appearing for the Petitioner, Mr. S.K.Das, learned

counsel appearing for Opposite Party No.3 and Mr.

S.C.Puspalaka, learned counsel appearing for the

Opposite party No.4. Also heard Mr. B.P.Tripathy,

learned Addl. Government Advocate for the State.

3. It is argued by Mr.A.K.Mohanty-A that the appeal

is grossly barred by limitation inasmuch as the

Petitioner claims to have been prevented from

discharging his duty w.e.f. 16th August, 2004, so he

should have preferred appeal within one month as per

the circular of the Government dated 27th March,

1983. The appeal was however, filed only in the year

2009, which is 5 years after the cause of action

allegedly arose. It is further argued that the appellate

authority has not taken into consideration the fact that

Opposite Party No.3 remained unauthorizedly absent

for days together and did not respond to the show

cause notices issued to him multiple times. The notice

was also published in newspaper. It was therefore,

wrong on the part of the appellate authority to hold

that the principles of natural justice were not followed.

It is however argued by Mr. Mohanty that in any case,

the Opposite Party No.3 had voluntarily tendered his

resignation, which was accepted on the same day by

the Managing Committee and therefore, he is estopped

to subsequently re-agitate the issue.

4. Per contra, Mr. S.K.Das, learned counsel appearing

for the answering Opposite Party No.3 has argued that

the appeal was filed before the Regional Joint Director

as per Government Notification dated 15th December,

2000, which was issued in supersession of the earlier

Notification dated 27th March, 1983. The said

Notification does not prescribe any period of limitation

for preferring appeal. On merits, it is contended by Mr.

Das that there is absolutely no proof of issuance of the

show cause notices much less service thereof on the

Opposite Party No.3. The postal receipts enclosed to

the Writ Petition do not relate to the purported notices.

In any case, the registered letters were returned to the

sender. It is not the same thing as refusal to receive

the letter which could have been treated as sufficient

service. Mr.Das further submits that the Resolution

dated 15th September, 2004 cannot be treated as valid

since several outsiders/non-Members of the Managing

Committee were present and had signed thereon. It is

also argued that signatures on plain papers were

obtained from all employees including the Headmaster

and were utilized to prepare resignation letters and

therefore, no reliance can be placed upon the same.

5. As regards the plea of limitation, it is to be noted

that the Government in the erstwhile Education and

Youth Services Department in its letter No.13585 (2)

EYS dated 27th March, 1983 while providing the

remedy of appeal against arbitrary termination of the

services of the employees of the Private Unaided

Recognized Educational Institutions to the Director,

Public Instructions (HE) laid down that such appeal

should be preferred within a period of one month from

the date of termination. By a subsequent Notification

dated 15th December, 2000, the State Government

empowered the Regional Joint Directors as the

appellate authorities in place of the Director of

Secondary Education. The said Notification superseded

the earlier Notification dated 27th March, 1983.

Further, the said Notification did not prescribe any

period for filing of appeal. This Court however, finds

from the uncontroverted pleadings particularly, the

counter affidavit filed by Opposite Party No.3 that

challenging the action of Headmaster in preventing

him to discharge his duties from 16th August, 2004,

the Petitioner had initially submitted a representation

addressed to the Secretary of the Institution on 18th

August, 2004 (copy enclosed as Annexure-A/3), which

was duly received by one Bhikari Charan Dalai

(Secretary of the Managing Committee). He further

preferred an appeal before the Director, Secondary

Education, but as no action was taken in the matter,

he filed W.P.(C) No.19570/2008. Subsequently, in view

of Government Notification dated 15th December, 2000

he withdrew his Writ Petition with liberty to file appeal

before the Regional Joint Director. This Court finds

that though the Petitioner claims to have filed appeal

before the Director, Secondary Education yet, neither

any date of such filing nor the number of such appeal

is mentioned. What order ultimately was passed in the

said appeal is also not forthcoming from the pleadings.

It is also not the case of Opposite Party No.3 that he

withdrew the said appeal to file a fresh appeal before

the Regional Joint Director in terms of Government

Notification dated 15th December, 2000. From the copy

of the appeal memo in Appeal No.135/2009 preferred

before the Regional Joint Director, it has however, been

stated under Paragraph-14 as follows;

<That now the appeal was to be filed before the Honble Forum but on the wrong advise the appellant has filed the representation before the Director, Higher Education and when no action was taken on that matter, he has moved the Hon'ble

High Court in W.P.(C) No. 19507/2008 being converted with the Government Circular empowering the Hon'ble Regional Joint Director with power to appear, the appellant has withdrawn his case from the Hon'ble High Court and move this forum for justice.

Hence this appeal.=

Obviously, this is not the same thing as

preferring appeal. Moreover, the date of submission of

such representation before the Director is also not

forthcoming.

6. From the foregoing discussion, what emerges is, the

Opposite Party No.3 claims to have been prevented by

the Headmaster from discharging his duties on 16th

August, 2004 and yet, he preferred appeal against

such action only in the year 2009. Be it noted that the

date of filing of the appeal has also not been stated.

The O.P.No.3 approached this Court in the year 2008

in W.P.(C) No.19507/2008. The Institution was

brought under the grant-in-aid fold w.e.f. 1st April,

2008. The O.P.No.3 has failed to satisfy this Court as

to what did he do in between the date of his alleged

prevention from discharging his duties i.e. on 6th April,

2008 till the date of filing of the Writ Petition before

this Court. It is well settled that even though no

period of limitation is prescribed to avail a particular

remedy yet, law requires the person aggrieved to act

with promptitude as otherwise 3rd party rights may

accrue. Under such circumstances, if a belated motion

is made to challenge an action, it would amount to

unsettling the settled position as regards the other

person, who may have acquired a right in the

interregnum. In the instant case, the Opposite Party

No.4 was appointed as Classical Teacher in the School

on 25th January, 2007.

7. From the facts narrated above, this Court finds

itself persuaded to agree with the contentions raised

on behalf of the Petitioner that the Opposite Party

No.3, despite being prevented from discharging his

duties slept over the matter for as long as four years

and thereafter woke up to approach this Court and

then preferred appeal before the Regional Director

evidently to get the benefit of grant-in-aid. By then five

years had elapsed and the Opposite Party No.4 had

been validly appointed. In the absence of even a

semblance of explanation offered for such inordinate

delay in approaching the appellate authority, it must

be held that the appeal could not have been

entertained by the Regional Director. The impugned

order therefore, deserves to be set aside on such score

alone.

8. Even on merits, this Court finds that several

notices were issued to the Opposite Party No.3 (copies

of which have been enclosed to the Writ Petition under

Annexure-3). It is also not disputed that the notice was

also published in a local Newspaper. It cannot

therefore, be said that there was no adherence to the

principles of natural justice by the Managing

Committee. The finding of the Regional Director to the

contrary is not sustainable. The other finding that the

name of the Opposite Party No.3 was included in the

renewal recognition form in June, 2004 is proof of his

employment does not hold much water. Since such

renewal recognition application is submitted every year

and all employees on roll are included therein. By such

time the Opposite Party No.3 had not been terminated

from his service and so, it is no surprise that his name

was included in the renewal recognition form. It is to

be noted that as per his own case, the Opposite Party

No.3 was prevented from discharging his duties from

16th August, 2004 by which date the renewal

recognition form had already been submitted. The

finding of the Regional Director on such score is

therefore unsustainable. Having held as above, this

Court does not deem it proper to enter into the

controversy relating to so-called submission and

acceptance of resignation by the Opposite Party No.3

on 5th September, 2004.

9. From a conspectus of the analysis and the

discussion made hereinbefore, this Court is of the view

that the impugned order cannot be sustained in the

eye of law and therefore, warrants interference.

Resultantly, the Writ Petition is allowed. The impugned

order dated 11th March, 2011 (Annexure-4) is hereby

quashed.

.................................. Sashikanta Mishra, Judge

Ashok Kumar Behera