Udayanath Behera vs Commissioner Of Endowment
2023 Latest Caselaw 592 Ori

  IN THE HIGH COURT OF ORISSA AT CUTTACK

                   W.P.(C) No. 613 of 2022
                   (Through hybrid mode)


Udayanath Behera                      ....           Petitioner

                          -versus-

Commissioner of Endowment,            ....      Opposite Party
Bhubaneswar, Dist: Khurda



Advocates appeared in the case:

  For petitioner       - Mr. Gopinath Mishra, Advocate

  For Opp. Party       - Ms. Pratyusha Naidu, Advocate



   CORAM:

             JUSTICE ARINDAM SINHA
             JUSTICE SANJAY KUMAR MISHRA
                        JUDGMENT

18.01.2023

ARINDAM SINHA, J.

1. Mr. Mishra, learned advocate appears on behalf of petitioner

and submits, impugned order dated 27th October, 2021, made by the

Commissioner directing his client to hand over charge of moveable

and immovable properties of the institution to the Interim Trustee

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within one month since he is no more continuing as Executive Officer

on 5th August, 2008 is under challenge. He draws attention to his

client's additional affidavit dated 15th January, 2023, wherein stands

disclosed, inter alia, order dated 19th December, 1992 of the

Commissioner appointing his client as Executive Officer of the

institution. On query from Court he submits, the appointment was

made under section 52 of Odisha Hindu Religious Endowments Act,

1951 and term was for one year.

2. He submits, his client's appointment was thereafter extended

to continue until further orders by order dated 11th September, 1998.

While such appointment was continuing, the Commissioner issued

advertisement for appointment of Executive Officer. His client

challenged the same. By order dated 5th August, 2005 in W.P.(C)

no.3333 of 2005, the notice was set aside. He relies on, inter alia,

paragraph-6 of the order made by coordinate Bench. The paragraph is

reproduced below.

"6. In the case at hand admittedly as per the order Annexure-2 the petitioner was allowed to continue as the Executive Officer until further order. The said order has not been varied by the Commissioner of Endowments till date. By virtue of the said order the petitioner is holding the post of Executive Officer. Thus

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the post has not fallen vacant. An advertisement cannot be issued for filling up a vacancy which is non-existent. In the aforesaid circumstances the direction issued by the Addl. Asst. Commissioner of Endowments, Berhampur to make advertisement in the local Oriya dailies for filling up a post which is already occupied is not just and proper. Even otherwise while the petitioner is continuing as the Executive Officer direction to him to hand over charge of his office to the Inspector of Endowments also cannot be sustained, as such an order should always follow the order of removal from a post. It appears till today no steps have been taken as contemplated under Section 54 of the Act for removal of the petitioner from the post of Executive Officer."

He submits, there was never initiation of proceeding under section 54.

There be interference for setting aside impugned order.

3. Ms. Naidu, learned advocate appears on behalf of the

Commissioner. She draws attention to impugned order. She points

out, it was made on the fact of petitioner's appointment extended on

order dated 5th August, 2006, by two years. Petitioner's term of

appointment expired on 5th August, 2008, as was found by the

Commissioner. No further extension was given to him. In the

circumstances, he was said to be continuing to work without any valid

appointment order. In addition, there were allegations against him.

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Hence, petitioner was directed to hand over charge within one month

since he is no more continuing as Executive Officer from 5th August,

2008.

4. We reproduce below relevant passage from impugned order.

"The petitioner is directed to hand over the charges of moveable and immovable properties of the institution to the Interim Trustee, the Inspector of Endowments, Berhampur within one month since he is no more continuing as Executive Officer from 05.08.2008."

5. The Act provides appointment of Executive Officer by

section 52. Sections 53 and 54 are reproduced below.

"53. Term of Office and duties of Executive Officer:- (a) The Executive Officer shall hold Office for such period as may be fixed by the Commissioner and he shall exercise such powers and perform such duties as may be assigned to him by the Commissioner.

(b) The Commissioner shall define the powers and duties which may be exercised and performed by the Executive Officer.

(c) The Executive Officer shall be deemed to be a Public Servant within the meaning of Section 21 of the Indian Penal Code (XLV of 1860).

                                           // 5 //




                    54.   Removal    of       Executive   Officer:-   The

Commissioner may, for good and sufficient causes, suspend, remove or dismiss the Executive Officer in the prescribed manner.

(emphasis supplied)

6. Petitioner's appointment was made by order dated 19th

December, 1992. Petitioner has been able to show us order of

extension dated 11th September, 1998, whereby he was directed to

continue as Executive Officer of the institution until further orders. It

appears, petitioner had initially moved this Court, inter alia, by

aforesaid writ petition i.e. W.P.(C) no.3333 of 2005. Subsequently

there was order dated 31st March, 2007, made by the Commissioner,

giving retrospective effect of commencement of term of two years to

petitioner, from 5th August, 2006 to expire on 5th August, 2008. This

order had not been challenged by petitioner. It is on basis of this order

that the Commissioner, by impugned order, reckoned that petitioner's

term had expired and he was continuing in office without authority.

7. The post enjoyed by petitioner cannot be said to be one

attracting service jurisprudence, of removal by disciplinary

proceedings. This is because section 53 provides that the Executive

Officer shall hold office for such period as may be fixed by the

Commissioner. Section 54 says the Commissioner may, for good and

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sufficient causes, suspend, remove or dismiss the Executive Officer in

the prescribed manner. Rule 20 in Odisha Hindu Religious

Endowments Rules, 1959 provides for procedure for exercise of

power under section 54.

8. Thus it is clear that holding post of Executive Officer in a

religious institution is one that is to be directed on term, by the

Commissioner. Petitioner's appointment was initially for one year, on

experimental basis. By order dated 11th September, 1998 he got

extension to carry on until further orders. We have also noticed that

there was subsequently order dated 31st March, 2007, giving

petitioner extension to hold office w.e.f. 5th August, 2006 till 5th

August, 2008. As aforesaid it is based on this fact that impugned

order was made. In addition the Commissioner referred to allegations

made against petitioner.

9. We are convinced that it is not a removal made by the

Commissioner under section 54, requiring resort to procedure by rule

20 but a pronouncement on his term having expired. We must add

that impugned order was made on remand by writ petition W.P.(C)

no.20569 of 2021 (petitioner's own case), disposed of on order dated

25th August, 2021 by another coordinate Bench.

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10. No interference with impugned order is warranted. The writ

petition is dismissed.

(Arindam Sinha) Judge

(S.K. Mishra) Judge Sks