Orissa High Court
Gopal Chandra Dash vs The Commissioner-Cum- ... Opposite ... on 29 November, 2023
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) NO.15776 of 2006
(In the matter of application under Articles 226 and
227 of the Constitution of India).
Gopal Chandra Dash ... Petitioner
-versus-
The Commissioner-cum- ... Opposite Parties
Secretary, Women & Child
Development Department,
Odisha & others
For Petitioner : Ms. M.Panda, Advocate
For Opposite Parties : Mr. M.K. Khuntia, AGA
(For OP No.1)
Mr.J.K.Mishra-2 Advocate
(For OP No.2)
CORAM:
JUSTICE G. SATAPATHY
DATE OF HEARING :29.11.2023
DATE OF JUDGMENT:29.11.2023
G. Satapathy, J.
1. Instant writ at the instance of the petitioner
seeks to challenge his order of termination and
dismissals from service vide Annexure-9 pursuant to
an enquiry report under Annexure-7 submitted by the
Enquiring Officer in the enquiry as ordered by OP
No.3.
being the Secretary and Executive Committee of the
Institution named as Jewels International(Chetna
Institute for the Mentally Handicapped) are running
the institution with aid and support of OP No.1-
Commissioner-cum-Secretary, W&C Development
Department, Government of Orissa. The petitioner
being appointed as craft teacher by OPs on
17.09.1996 joined in service on the same day, but OP
Nos. 2 & 3 with malafide intention deprived the
petitioner from his legitimate salary and the
petitioner thereby continued in the said post of craft
teacher on a consolidated scale of pay of Rs.900/- per
month. The petitioner raised objection to such
arbitrary act of OP No.2 who along with his wife, the
principal of the institution was responsible for such
arbitrary act and on 22.12.2000 at about 1.50 PM
Dr.N.C.Pati, the then General Secretary of the
institution called the petitioner to his official residence
and assaulted him without any fault and thereafter,
finding no way out, the petitioner was forced to file
an FIR before the OIC, Chandrasekharpur Police
Station on this issue, but the said officer being
influenced by OP No.2 did not take any action as a
result, the petitioner brought the aforesaid fact to the
notice of SP, Khurda and being aggrieved, OP No.2
illegally suspended the petitioner from his service by
letter dated 15.01.2001 under Annexure-3 and
thereafter, OP No.2 initiated departmental proceeding
against the petitioner by issuing charge sheet
containing memorandum of charges with eight
articles of charge on different heads vide Annexure-4.
The charges against the petitioner were for serious
misconduct and indiscipline, making false criminal
allegation against the authority, disobedience,
committing forgery and neglecting in duty. In
response to the show cause of the petitioner and
memorandum of charges, OP Nos. 2 & 3 appointed
Sri L.Patnaik as a Enquiring Officer to conduct the
enquiry and accordingly, after completion of enquiry,
the Enquiring Officer submitted his enquiry report
under Annexure-7 finding the petitioner guilty, but
the petitioner claims prejudice for not providing him
any opportunity of being heard and consequently OP
Nos. 2 & 3 put the petitioner under suspension and
thereafter, the petitioner unsuccessfully challenged
the enquiry report before the District Consumer
Redressal Forum, Bhadrak in C.D.Case No. 07 of
2004. Further, it is alleged that the authorities
without calling for any explanation dismissed the
petitioner from his service vide Office order dated
24.02.2003 under Annexure-9. On the aforesaid
averments, the petitioner claiming the report under
Annexure-7 and order under Annexure-9 to be
arbitrary and illegal has filed this writ petition to
quash the same.
3. In response to the notice of writ, OPNo.2
has filed its counter supported with an affidavit by
denying all the allegations leveled by the petitioner
against the OPs and inter alia averring that since the
institution is an aided institution, the writ petition is
not maintainable against the OPs and the petitioner
having not acquired the requisite qualification, the
institution had issued temporary appointment order
to the petitioner on 20.09.1995 with four conditions
and due to want of qualification, the Director Social
Welfare had not approved the service of the
petitioner and the institution had initiated a
proceeding by placing the petitioner under suspension
on 15.01.2001 and after completion of enquiry, the
institution had issued second show cause notice to
the petitioner who replied to such second show cause
on 13.01.2003 under Annexure-2/A admitting his
fault and accordingly, the petitioner was terminated
from service. OP No.2 has further averred in his
counter that during pendency of this writ, the
petitioner again filed another writ in W.P.(C) No.8631
of 2016 which was disposed of by this court on
10.08.2021 directing OP No.1 to dispose of the
representations of the petitioner. On these
averments, OP No.2 has prayed to dismiss the writ.
4. In response to the counter of OP No.2, the
petitioner has filed his rejoinder by contending inter
alia that no notice was ever communicated to the
petitioner and thereby, the reply to second show
cause notice does not arise, but the grievance of the
petitioner which was annexed to the counter of OP
No.2 under Annexure-2/A is not the reply of the
petitioner to the second show cause, rather it was a
communication between OP No.2 and the petitioner,
and the authority cannot terminate the service of the
petitioner w.e.f. 24.02.2003 without calling for any
explanation from him and thereby, the termination of
the petitioner is vitiated and when the grievance of
the petitioner was not responded to, the petitioner
had filed W.P.(C) No.8631 of 2016 which was
disposed of with a direction to OP No.1 to dispose of
the representation of the petitioner. After filing of
rejoinder, OP No.2 has also filed a reply to rejoinder
stating interalia therein that as the institution faced
problem, the post of the petitioner has already been
filled up for the requirement of students and thereby,
the institution has not committed any mistake in
terminating the service of the petitioner, who has
already been paid with his arrear salary, but the
petitioner not having any required qualification, his
post was not approved by the Government on
09.09.1996. It is accordingly prayed by OPs to
dismiss the writ petition.
5. Heard, Ms. M. Panda, learned counsel for
the petitioner, Mr. J.K. Mishra-2 learned counsel for
OP No.2 and Mr. M.K. Khuntia, learned AGA
appearing for OP No.1. None appears for OP Nos. 3
and 4.
6. Ms. Panda, learned counsel for the petitioner
has accordingly, confined her submission mainly on
two points; firstly, for violation of principle of natural
justice on the ground that neither the petitioner was
issued with any second show cause notice nor was he
afforded with any opportunity of being heard and
secondly, the institution being a Government aided
institution, the action of suspension and termination
of the petitioner from service was in violation of
Section 10-A of Orissa Education Act, 1969 (in short
"the Act") and Rule 22 of the Orissa Education
(Recruitment and Conditions of Service of Teachers
and Members of the Staff of Aided Educational
Institutions) Rules, 1974 (in short "the Rules"). Mr.
Khuntia, learned AGA appearing on behalf of OP No.1,
however, submits that the writ is not at all
maintainable against OP No.1 since the petitioner was
neither an employee with Grant-in-Aid nor were the
Act and Rules applicable to him and even otherwise,
the writ petitioner having not taken recourse to the
statutory appeal as prescribed under the Act and
Rules within the stipulated time, the present writ
petition is also not maintainable. On the other hand,
Mr. J.K. Mishra-2, learned counsel for OP No.2 by
taking this Court through Annexure-A/2 submits that
since the petitioner was served with second show
cause notice, no illegality was committed by OP Nos.
2 & 3 in terminating the service of the petitioner.
Accordingly, Mr. Mishra prays to dismiss the writ.
7. After having duly considered the rival
submissions upon careful perusal of averments on
record and on meticulously going through the
documents annexed to the writ and counter affidavit,
it appears that the petitioner's claim for relief is on
the basis of violation of principle of natural justice for
not providing an opportunity of being heard by the
authority concerned as well as non-issuance of
second show cause notice, but it is found from
Annexure-5 to the writ that in response to the articles
of charge communicated to the petitioner in the
enquiry, the petitioner had filed his defence which
paved the way for the Enquiring Officer to enquire
into the imputation of charge. The enquiry report
attached to writ under Annexure-7 would go to
indicate that although the petitioner initially did not
file his written statement of defence within a
stipulated time, but after taking some time, he had
filed it without annexing any document and in the
enquiry, the petitioner had also remained
intermittently not present on all the dates, but he
remained present on some dates. Further, the
Enquiring Officer by his report has answered all the
charges holding the petitioner guilty of some charges
like misconduct and forging documents. It is,
however, claimed by the petitioner in the writ that no
second show cause notice was issued to him and,
thereby, the penalty of termination from service is
illegal and liable to be set aside, but it appears from
the document attached to the counter affidavit of
OPNo.2 vide Annexure-2/A that the petitioner
submitted his reply with some delay to the enquiry
report asking the authority to take any steps against
him by releasing his arrear salary. The above
documents clearly indicates that the enquiry report
was communicated to the petitioner on 17.12.2002,
but he submitted his reply on 13.01.2003 and on
23.02.2003, the Executive Committee of the
institution took decision to terminate the petitioner
and the service of the petitioner was accordingly
directed to be terminated w.e.f. 24.02.2003. It is
never disputed that the petitioner had unsuccessfully
challenged the aforesaid order of termination of
service before the Consumer Forum, Bhadrak in
C.D.Case No. 07 of 2004 which according to the
petitioner disposed of the same on 16.05.2006 and
the petitioner, thereafter, approached this Court in
this writ on 29.11.2006.
8. According to the petitioner, he was
appointed as a Craft Teacher with a scale of pay of
Rs.975-1660/-, but continued in the post of Craft
Teacher on a consolidated scale of pay Rs.900/- and
OPNo.2 in its counter affidavit has stated that since
the petitioner had not acquired the requisite
qualification, he was appointed temporarily with four
conditions and due to want of qualification, the
Director Social Welfare had not approved the service
of the petitioner. The aforesaid fact was never denied
by the petitioner in his rejoinder to the counter
affidavit, rather he took the plea that the allegation of
deficit in qualification to the post of Craft Teacher was
never communicated to him. On the other hand,
Annexure-1 to the writ discloses the appointment of
petitioner as a temporary Craft Teacher with some
terms and conditions. Albeit, the petitioner claims
that the institution is governed by Grant-in-Aid (GIA)
principle, but he could not substantiate his post to be
a substantive post with Grant-in-Aid. Besides, in the
course of argument, the petitioner took the plea for
the first time that his case should be governed by the
Act and, thereby, the authority not following the
procedure under the Act and Rules made thereunder,
his termination from service is unsustainable in the
eye of law. In support of such contention, reliance
has been placed on the decision in Basanta Kumar
Swain Vrs. Presiding Officer, State Education
Tribunal and others; 2008 (I) OLR 84, but a
careful perusal of the averments of the writ, nowhere
the petitioner has ever averred that his case is to be
governed by the Act and Rules made thereunder. For
the sake of argument, accepting but not admitting
the contention of the petitioner to be correct, it is
stated that had the case of the petitioner being
governed by Section 10 of the Act or Rule 22 of the
Rules made thereunder, he would have to approach
State Educational Tribunal (SET) within 30 days of
receipt of the order, but the petitioner had never
approached SET and therefore, the above decision
relied on by the petitioner has no application to the
case at hand inasmuch as the petitioner in the relied
on case had approached SET, but in this case, the
petitioner has never approached the SET and there is
absolutely no explanation in the writ as to why the
petitioner did not approach the authority under the
Act. Further, no ground has been taken by the writ
petitioner in the writ that his termination is bad for
want of approval in terms of the Act.
9. There is no quarrel over the position of the
law that availability of alternative remedy is
absolutely no bar to maintain a writ petition, but the
Rule of exclusion of writ jurisdiction by availability of
an alternative remedy is a Rule of discretion and not
one of compulsion and the High Court may exercise
its writ jurisdiction where the writ seeks for
enforcement of any of the fundamental rights or
violation of principle of natural justice or the orders or
proceeding being wholly without jurisdiction as held
by the Apex Court in Harbanslal Sahnia and
another Vrs. Indian Oil Corporation Ltd. and
others; 2004 (I) OLR (SC) 81. In this case as
already discussed, the petitioner was not only unable
to establish the violation of principle of natural
justice, but also there is absolutely no averment in
the writ as to how the principle of natural justice was
violated in the case of the petitioner. No provision of
any Act and Rules is brought to the notice of the
Court that the case of the petitioner should have
been dealt with such Act or Rules. There is absolutely
no pleading or averments to indicate that the case of
the petitioner should have been covered by the
Orissa Education Act and Rules made thereunder. The
petitioner could not convince the Court as to which
Act or provision was applicable to the petitioner for
handing out the penalty to him in the proceeding
instituted by OP Nos. 2 & 3. In absence of any
specific provision or Rule made applicable to the
petitioner requiring OP Nos. 2 & 3 to issue second
show cause before handing out the penalty to the
petitioner after the enquiry, it cannot be said that the
order issued under Annexure-9 is arbitrary or illegal,
rather the same having being passed after receipt of
a reply of the petitioner to the enquiry report under
Annexure-A/2, principle of natural justice cannot be
said to have been violated.
10. It is also not disputed that the petitioner
had approached this Court in WP(C) No.8631 of 2016
for seeking direction to the concerned authority to
take a decision on his representation and this Court
accordingly passed order without expressing any
opinion on the merits of the case directing OPNo.2
therein who is OPNo.1 herein to dispose of the
representation of the petitioner in accordance with
law, but the petitioner has not produced any order
passed by the authority in this writ, rather it appears
that such representation was made by the petitioner
for release of arrear salary as revealed from the
rejoinder of the petitioner to the counter affidavit and
Annexure-5 series to the said writ. It is also never
disputed that the service of the petitioner was
terminated w.e.f. 24.02.2003, but he approached this
Court in this writ after three years nine months
thereafter and there was no explanation by the
petitioner as to why he approached this Court with
such delay.
11. On a conspectus of the averments made in
the writ and counter affidavit coupled with
discussions made hereinabove and on analysis of
documents annexed by the parties to the writ, this
Court does not find the petitioner to have
substantiated his claim for violation of natural justice
in handing out the penalty to him in the enquiry nor
the case of the petitioner can be said to be covered
by the Act and the Rules so as consider its violation
and, therefore, the petitioner is not entitled to the
relief claimed by him.
12. In the result, the writ petition stands
dismissed being devoid of merit on contest, but in the
circumstance, there is no order as to costs.
(G. Satapathy)
Judge
Signed by: KISHORE KUMAR SAHOO
Designation: SecretaryOrissa High Court, Cuttack,
Reason: Authentication th
Location: High Court ofDated
Orissa the 29 of November, 2023/Kishore
Date: 01-Dec-2023 17:28:38
