Afr Smt. Rebati Goswami vs State Of Odisha & Others
2023 Latest Caselaw 874 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                           FAO No. 484 of 2017

       An appeal under Section 24-C of Odisha Education Act,
       1969 against the judgment dated 24.11.2017 passed by
       Presiding Officer, State Education Tribunal, Bhubaneswar
       in G.I.A. Case No.427 of 2011.
                                  ------------------

AFR    Smt. Rebati Goswami                     ......             Appellant

                                      -Versus-

       State of Odisha & others              ......           Respondents

       Advocate(s) appeared in this case:-
       _______________________________________________________

          For Appellant      :        Mr. P. Acharya, Advocate

          For Respondents :      Mr. P.K. Panda,
                                 Standing Counsel for School &
                                 Mass Education Department
       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                               JUDGMENT

th 25 January, 2023

SASHIKANTA MISHRA, J.

The appellant calls in question the

correctness of the judgment passed by the Presiding

Officer, State Education Tribunal, Bhubaneswar on

24.11.2017 in GIA Case No. 427 of 2011 on the ground

that despite holding the withdrawal of approval of

appointment of the appellant as invalid, the matter was

remanded to the Director to cause further enquiry in the

matter.

2. The facts of the case, in brief, is that the

appellant was appointed as Watchman-cum-Sweeper (3rd

peon) as per resolution of the Managing Committee of

Bhanjabhumi Girls' High School, Kalma in the District of

Mayurbhanj. Pursuant to such resolution and order of

appointment issued by the Secretary of the Managing

Committee dated 18.09.2006, the appellant joined in

service on 25.09.2006. The School was notified as an

Aided Educational Institution after coming into force of

the GIA Order, 2008. Accordingly, the School authority

submitted proposal before the Director for approval of

appointment of the teaching and non-teaching staff of the

School including the appellant. On verification of records,

the Director being satisfied, approved the appointment of

the appellant against the post of Watchman-cum-Sweeper

vide order dated 25.02.2011. While the matter stood thus,

a grievance petition was filed by the local people, basing

on which an enquiry was conducted without giving any

opportunity of hearing to the appellant. Ultimately, the

order of approval was withdrawn vide order dated

22.10.2011 by the Director. Being aggrieved, the appellant

initially approached this Court in W.P.(C) No. 28957 of

2011, which was disposed of on 16.11.2011 by passing

the following order.

"Mr. Acharya learned counsel for the petitioner prays to withdraw the writ petition with liberty to file appeal before the State Education Tribunal. A memo has been filed in court to that effect. Accordingly, the petitioner is permitted to be withdraw the writ petition giving liberty to file appeal before the State Education Tribunal within two weeks. In the event the appeal is filed within time alongwith in an application for condonation of delay, the Tribunal shall condone the delay and dispose of the appeal on merit. In view of the decision of this Court reported in 2009 (I) OLR 953 Dhurba Charan Mohapatra - vrs.- State of Odisha, service of statutory notice on the State Government as required by the provision U/s. 24(B)(3) is waived."

Pursuant to such order, the appellant approached the

Tribunal by filing GIA Case No. 427 of 2011 challenging

such order of the Director withdrawing the approval.

3. The State-respondents appeared before the

Tribunal and filed a counter affidavit taking a specific

stand that the Managing Committee had forwarded the

recommendation of the appellant by manipulating

documents and the District Inspector of Schools without

verifying the same had approved her appointment. The

basis of the allegation was that in the year 2008, the

headmaster had given a status report showing the post of

Sweeper as vacant. Thus, it was surprising that the

headmaster recommended her case for approval showing

the post to have been filled up since 25.09.2006. All these

facts came to light on the basis of the enquiry conducted

and therefore, the order of approval was rightly

withdrawn.

4. The Tribunal after considering the rival

contentions held that the enquiry was conducted on

18.05.2011 and by order dated 10.10.2011 the Inspector

of Schools was directed to withdraw the approval of

appointment. Prior to issuance of the letter dated

10.10.2011, the appellant having come to learn about the

enquiry, submitted representations before the Director

and Inspector of Schools on 15.07.2011 but no

opportunity of hearing was extended to the appellant. The

Tribunal further found that the so called manipulated

documents collected by the enquiring officer during

enquiry had not been made part of the counter affidavit

filed by the Sate-respondents nor produced before the

Tribunal during course of hearing. As such, the Tribunal

held that the order of withdrawal of approval of

appointment of the appellant without giving an

opportunity of being heard is against the principles of

natural justice and is rendered invalid. However, despite

holding so and upon setting aside the order of withdrawal

of the approval of the appointment of the appellant, the

Tribunal also directed the Director to cause a further

enquiry into the matter after giving a reasonable

opportunity of being heard including the appellant and to

pass order afresh within a period of four months with the

further condition that till such decision of the Director no

financial benefits shall be released in her favour.

5. Heard Mr. P. Acharya, learned counsel for

the appellant and Mr. P.K. Panda, learned Standing

Counsel for School and Mass Education Department.

6. It is contended by Mr. Acharya that once the

Tribunal comes to a definite finding that the impugned

order of withdrawal of approval of the appointment is

invalid being contrary to the principles of natural justice,

the only thing that it should have done was to set aside

the said order. Though the Tribunal has passed order

setting aside the impugned order, yet it has gone on to

pass order to cause further enquiry into the matter.

According to Mr. Acharya, this amounts to exceeding the

jurisdiction conferred upon the Tribunal by the statute.

7. Mr. P.K. Panda has argued that though the

impugned order was set aside for non-adherence to the

principles of natural justice yet fact remains that the

inquiry conducted into the matter had revealed

manipulation of documents for which the Tribunal rightly

directed the Director to cause further enquiry after giving

opportunity of hearing. According to Mr. Panda therefore,

no illegality was committed by the Tribunal.

8. Be it noted at the outset that the impugned

order in so far as it relates to the finding that the order of

withdrawal of approval of appointment of the appellant

without giving her an opportunity of being heard is

against the principles of natural justice and rendered

invalid, has not been challenged by the State by filing

appeal. Thus, that part of the impugned order must be

treated as final and not open to scrutiny anymore.

9. The only question that survives for

determination in the present appeal is the contention

advanced regarding exceeding of jurisdiction conferred by

the Statute by the Tribunal. In this regard it would be apt

at the outset to first refer to the order passed by this

Court in W.P.(C) No. 28957 of 2011, already quoted

hereinbefore, whereby the appellant was granted liberty to

prefer appeal. There was a specific direction by this Court

to the Tribunal to condone the delay and dispose of the

appeal on merit. It would now be profitable to refer to

Section 24-B of the Odisha Education Act, which reads as

follows:

"24-B. Adjudication by Tribunal- (1) The Tribunal shall have jurisdiction, power and authority to adjudicate all disputes and differences, between the Managing Committee or, as the case may be, the Governing Body of any private educational institution and any teacher or employee of such institution or the State Government or any officer in any authority of the said Government, relating to or connected with the eligibility, entitlement, payment or non- payment of grant-in-aid.

(2) Any person, aggrieved by an order pertaining to any matter within jurisdiction of the Tribunal, may make an application to the Tribunal for the redressal of his grievance.

(3) On receipt of an application under Sub- section (2), the Tribunal shall, if satisfied after such inquiry as it may deem necessary that the application is a fit case for adjudication by it, admit such application, but where the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons:

Provided that no application before the Tribunal seeking a claim of grant-in-aid against the State Government or any officer or authority of the said Government shall be admitted, unless the applicant has served a notice on the State Government or concerned officer or authority furnishing the details of the claim and a period of two months has expired from the date of receipt of the said notice by the State Government or, as the case may be, the concerned officer or authority.

(4) The Tribunal shall not admit an application under Sub-section(2), unless it is made within one year from the date of expiry of the period of two months referred t in Sub-section (3). (5) The Tribunal shall not be bond by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and, subject to any rules made by the Government, shall have power to regulate its own procedure. (6) All the proceedings before the Tribunal shall be deemed to be judicial proceedings within the meaning of Sections 193, 219 and 228 of the Indian Penal Code, 1860."

Thus the statute has conferred power upon the Tribunal

to adjudicate upon the matters specified therein. Read

plainly, the provision implies that the Tribunal is to take a

decision in any application filed by a party to either grant

the relief claimed or to reject the same. No further power

has been conferred upon the Tribunal by the statute. It is

well settled that when the statute requires a thing to be

done in a particular manner, the same has to be done in

that manner or not at all. Reference may be had to the

decision of Nazir Ahmad v. King Emperor reported in

AIR 1936 PC 253.

10. Moreover, this Court in the case of Harjit

Kaur vs. State of Odisha, reported in AIR 2014 Ori 198

has taken the same view after taking note of the decision

of the Apex Court in the case of State of West-Bengal vs.

State of Subhas Kumar Chatterjee and others,

reported in AIR 2010 SC 2927 wherein it was held that

the power conferred upon the Tribunals can never be

delegated except under a valid law made by the

parliament and that the Tribunals by their own act cannot

delegate the power to decide any dispute which in law is

required to be decided exclusively by such Tribunals.

Thus, this Court in Harjit Kaur (supra) held that the

Tribunal committed gross error apparent on the face of

the record in remitting the matter to the authorities

without adjudicating the same.

11. Viewed in backdrop of the legal position

referred above, this Court has no hesitation in holding

that the Tribunal in the instant case has committed gross

error in remitting the matter to the Director to cause

further enquiry. Having once set aside the impugned order

on the ground of its inherent invalidity, the Tribunal

should have brought a quietus to the issue without

traversing further.

12. For the forgoing reasons therefore, the appeal

succeeds and is therefore, allowed. The impugned

judgment in so far as it relates only to the direction issued

to opposite party no.2 to cause further enquiry and to not

release the financial benefit in favour of the appellant till

the decision of the Director, is hereby set aside. The

remaining part of the impugned judgment shall remain

intact.

...............................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 25th January, 2023/ A.K. Rana.