Orissa High Court

Binapani Mahalik vs State Of Odisha & Others .... Opposite ... on 22 July, 2025

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                        W.P.(C ) No.38462 of 2020

      In the matter of an application under Articles 226 and 227 of
                   the Constitution of India,1950.
                                 ..................

       Binapani Mahalik                                             Petitioner
                                             ....
                                       -versus-

       State of Odisha & Others                ....           Opposite Parties




            For Petitioner        :     Mr. A.K. Panda, Adv.

            For Opp. Parties :          Mr. A. Tripathy, AGA

     PRESENT:


    THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY

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   Date of Hearing:23.07.2025 and Date of Judgment: 23.07.2025
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      Biraja Prasanna Satapathy, J.

1. This matter is taken up through Hybrid Mode.

2. The present Writ Petition has been filed inter alia

with the following prayer:

It is, therefore, most humbly prayed that Hon'ble Court may graciously be pleased to admit writ application, issue rule Nisi calling upon opposite parties to show cause as to why the prayers made hereunder be not allowed, Upon showing insufficient cause/no cause make the said Rule absolute, issue writ/writs in nature of // 2 //

(i)Mandamus directing the State Opp. Parties to release the salary of the Petitioner from 01.09.2003 to 05.05.2019 in the light of observation and direction of learned OAT in the order dtd.2.5.2018 in O.A. 2136/2016 as at Annexure-9 by declaring the penalty order dt.31.10.2019 as at Annexure-

16 and rejection order of appeal authority dtd.20.11.2020 at Annexure-19 to be illegal, void and in violation to the direction of the competent court of law as much as in violation to the direction of higher authorities.

(ii) Direct the Opp. Parties to grant all the consequential service and financial benefits in favour of the Petitioner as due and admissible to her with arrear benefits.

(iii) And/or may pass such other writ/writs, order/orders, direction/directions as this Hon'ble Court may think fit and proper for the ends of justice.

And for this act of kindness the Petitioner as in duty bound shall ever pray.

3. It is contended that Petitioner while working as an

Asst. Teacher in Kantuapani Primary School, he was

transferred and posted to Butupali UGME School vide

order dt.10.05.2001 under Annexure-1. Pursuant to

the said order, Petitioner was relieved vide order

dt.15.05.2001 under Annexure-2 and Petitioner joined

in Butupali UGME School on 16.05.2001 as reflected in

Annexure-3.

3.1. It is contended that subsequently order

dt.10.05.2001 though was cancelled vide order

dt.01.06.2001, but by that time Petitioner had already

joined in Butupali UGME School on 16.05.2001.

Thereafter vide order dt.27.06.2001 under Annexure-5,

// 3 //

D.I of School, Boudh passed a fresh order observing

therein that pursuant to order dt.01.06.2001 those

teachers who have not yet been relieved, be allowed to

continue in their respective school as per office order

dt.10.05.2001.

3.2. It is contended that by the time order

dt.27.06.2001 was issued Petitioner since was

continuing in Butupali UGME School pursuant to

order dt.10.05.2001, on the face of such order issued

by the then D.I of School under Annexure-5, Petitioner

should have been allowed to continue in Butipali

UGME School. However, on the face of such order

passed on 27.06.2001 under Annexure-5, Petitioner

was wrongly relieved from Butupali UGME School by

the Headmaster on 31.07.2003 basing on the order

dt.01.06.2001 so issued under Annexure-4.

3.3. It is contended that on being so relieved illegally by

the Headmaster of Butupali UGME School on

31.07.2003, Petitioner though bring the same to the

notice of the then D.I of School, Boudh by making a

// 4 //

representation on 01.08.2003 under Annexure-7, but

no action was taken in considering the grievance of the

Petitioner, and allowing her to continue in Butupali

UGME School.

3.4. It is contended that challenging the inaction on the

part of the Opp. Parties in not allowing her to continue

in Butupali UGME School, Petitioner approached

Odisha Administrative Tribunal in OA 24(S ) of 2004.

The said Original Application was disposed of vide

order dt.21.12.2009 inter alia with the following

direction:

"Considering the submissions of the learned counsel for the applicant, a copy of the paper book be sent to Respondent No.3 at the cost of the applicant for treating the same as a representation and issuing appropriate orders on the same in accordance with existing rules keeping in view the submissions of the applicant that the applicant had already joined Butupali UGME School, as per annexure-3, after relief from her earlier place of posting on 15.05.2001 (Annexure-2) and hence cancellation order issued by letter by 2415 dt.1.6.2001 will be 'non-est' in view of the fact that applicant had already joined the aforesaid place of posting. If the authorities had to alter her posting, a regular transfer order changing her place of posting should have been issued instead of merely cancelling orders not pertinent to her. Similarly orders at annexure-6 make no reference to earlier orders as submitted by the applicant, regarding her change of place/transfer to Butupali. Such orders be issued within a period of two months from the date of receipt of these order, under initiation to the applicant.

It is made clear here that merits of the matter have not been gone into by this Tribunal and the Respondent No.3 is at liberty to issue appropriate orders on merits in accordance with existing rules independently.

// 5 //

3.5. Learned counsel appearing for the Petitioner

contended that in terms of the order passed by the

Tribunal on 21.12.2009 in OA No.24(S) of 2004,

Petitioner was never given a posting nor allowed to

continue at Butupali UGME School. Instead, a

proceeding was initiated against her by the D.I of

School, Boudh vide memorandum on 31.12.2010

under Annexure-8 inter alia with the following charges:

Article of Charge

Smt. Binapani Mahalik, Asst. teacher, Kantuani Primary School under deputation to Butupali UGME School has committed the following irregularities and constituting gross misconduct.

Willful unauthorized absence in duty.

Disobedience to higher authority.

3.6. It is contended that because of such initiation of

the proceeding, Petitioner again approached the

Tribunal by filling OA No.38(S )of 2011 inter alia with

the prayer to quash the relieve order dt.31.07.2003.

The said Original Application was disposed of vide

order dt.02.05.2018 under Annexure-9 inter alia with

the following direction so contained in Para-8 & 9.

8. So far as initiation of the disciplinary proceeding is concerned, as it appears that the proceeding has been

// 6 //

kept in abeyance as per the order of the Tribunal, we direct the respondent authorities to conclude the proceeding in accordance with rule as expeditiously as possible but within a period of two months from the date of receipt of a copy of this order.

9. Accordingly the O.A is disposed of with a direction to the respondent authorities to allow the applicant to continue in Butupali UGME School or issue order posting her in any school, within a period of two months from the date of receipt of a copy of this order and salary as due and admissible be released in her favour treating the entire period as duty.

3.7.Learned counsel appearing for the Petitioner

contended that pursuant to the order passed by the

Tribunal under Annexure-9, Petitioner was again

posted at Butupali UGME School vide order

dt.04.05.2019 under Annexure-13 and accordingly

Petitioner joined in the said school on 06.05.2019 as

reflected in Annexure-14.

3.8. It is contended that basing on the order passed by

the Tribunal under Annexure-9, the Disciplinary

Authority proceeded with the proceeding and passed

the order of punishment vide order dt.31.10.2019

under Annexure-6 by imposing the following

punishments:

1. The unauthorized period of absence from 01.08.2003 to 05.05.2019 (relieved from school on 31.07.2003) is hereby treated as Non duty (unauthorized absence).

// 7 //

2.The said period will not be counted towards any financial service benefit and others consequential benefits.

3.9. It is contended that challenging such order of

punishment, Petitioner moved the Appellate Authority

by filing an appeal under Annexure-17. However, the

said appeal was also dismissed by the appellate

authority-Opp. Party No.2 vide order dt.20.11.2020

under Annexure-19.

3.10.Learned counsel appearing for the Petitioner

contended that the proceeding in question was initiated

inter alia with the charge that, Petitioner remained on

unauthorized absence from duty w.e.f 01.08.2003 to

05.05.2019, even though she was the relieved from the

School on 31.07.2003.

3.11. It is contended that on the face of the order

passed by the then D.I of School on 27.06.2001 under

Annexure-5, Petitioner could not have been relieved

from Butupali UGME School by the Headmaster of the

School on 31.07.2003 under Annexure-6, as by the

said date, order dt.01.06.2001 was already superceded

with passing of an order on dt.27.06.2001 under

// 8 //

Annexure-5. It is further contended that such illegal

action of the Headmaster in relieving the Petitioner

basing on a non- existent order dt.01.06.2001 though

was brought to the notice of the then D.I of School on

01.08.2003 under Annexure-7, but no action was

taken in considering the grievance of the Petitioner.

3.12.Even though Petitioner challenging such inaction

on the part of the Opp. Parties moved the Tribunal in

OA. No.24(S) of 2004, but in the said Original

Application, no counter affidavit was filed by the State.

The Tribunal accordingly vide order dt.21.12.2009

directed the Opp. Party to consider the Petitioner's

grievance and to give her posting in any other school or

to allow the Petitioner to continue at Butupali UGME

School.

3.13.On the face of such order passed in OA No.24(C )

of 2004 on 21.12.2009, Petitioner was never given a

fresh posting nor allowed to continue at Butupali

UGME School from where she was illegally relieved on

31.07.2003. Thereafter when a proceeding was

// 9 //

initiated vide Memorandum dt.31.12.2010 under

Annexure-8, Petitioner seeking quashing of the relieve

order approached the Tribunal by filing OA No.38(S ) of

2011, which was subsequently transferred and re-

numbered as OA No.2136 of 2016. The said Original

Application was disposed of vide order dt.02.05.2018

under Annexure-9 inter alia directing the authorities to

allow the Petitioner to continue in Butupali UGME

School or to issue a fresh order of posting. However,

the Tribunal allowed the authority to continue with the

proceeding. In terms of the said order passed by the

Tribunal, Petitioner was given a posting at Butupali

UGME School vide order dt.04.05.2019, where she

joined on 06.05.2019.

3.14.It is contended that since because of the wrong

relieve order issued by the Headmaster of the School on

31.07.2003, Petitioner remained out of employment

on the face of her approach made to the D.I of School

on 01.08.2003 under Annexure-7 as well as the filing of

OA No.24 (CS) of 2004 before the Tribunal, on the

// 10 //

ground of unauthorised absence from duty, the

proceeding could not have been initiated against her.

3.15.It is contended that for the latches on the part of

the Opp. Parties, Petitioner was not only illegally

relieved from her duty on 31.07.2003, but also her

claim was never considered by allowing her to

continue in the said school or to give her an alternate

posting. It is accordingly contended that no fault lies

with the Petitioner for her not joining in the School for

the period from 01.08.2003 to 05.05.2019. It is

accordingly contended that not only the initiation of the

proceeding is bad in the eye of law, but also the order

of punishment passed on 31.10.2019 under Annexure-

16 so confirmed by the appellate authority-Opp. Party

No.2 vide order dt.20.11.2020 under Annexure-19. It

is accordingly contended that while interfering with the

said order passed under Annexure-16 so confirmed

under Annexure-19, the period of service from

01.08.2003 to 05.05.2019 be regularized with

extension of all service and financial benefits as due

and admissible.

// 11 //

4.Learned Addl. Govt. on the other hand made his

submission basing on the stand taken in the counter

affidavit so filed by Opp. Party No.4.

4.1. It is contended that after being relieved from

Butupali UGME School on 31.07.2003, Petitioner never

joined in the school and she approached the Tribunal

by filing OA No.24 (C ) of 2004. The said OA was

disposed of on 21.12.2009 at the stage of admission

and while disposing the said Original Application, the

Tribunal directed Opp. Party No.3 therein to pass

appropriate order on merit in accordance with the

existing rules and the stand taken in the original

Application.

4.2. Since Petitioner after being relieved on 31.07.2003,

never joined in any school, the proceeding in question

was initiated against her vide Memorandum

dt.31.12.2020. Even though the proceeding as well as

the relive order was challenged by the Petitioner before

the Tribunal in OA No.38(S) of 2011, subsequently re-

numbered as OA No.2136 of 2016, but the Tribunal

// 12 //

never interfered with the initiation of the proceeding

while disposing the Original Application vide order

dt.02.05.2018 under Annexure-9. The Tribunal also

never interfered with the relieve order and instead

directed the authority to pass an order allowing the

petitioner to join at Butupali UGME School or in any

other school.

4.3. It is contended that in term of the order

dt.2.5.2018 so passed by the Tribunal, Petitioner was

posted at Butupali UGME School vide order

dt.04.05.2019 under Annexure-13 where she joined on

06.05.2019. It is also contended that basing on the

liberty granted by the Tribunal, the Disciplinary

Authority proceeded with the proceeding and passed

the order of punishment vide order dt.18.10.2019

under Annexure-16. Such order passed by the

Disciplinary Authority was also confirmed by the

appellate authority vide order dt.20.11.2020 under

Annexure-19.

// 13 //

4.4. It is contended that since after being relieved on

31.07.2003, Petitioner never discharged her duty till

she re-joined on 06.05.2019, the proceeding was not

only initiated against the Petitioner for such

unauthorized absence but also the Disciplinary

authority passed the order of punishment rightly which

has also been upheld by the Appellate Authority. It is

contended that since Petitioner for the aforesaid period

never joined, she is not entitled to get any benefit for

the said period and the impugned order of punishment

has been rightly passed.

5. Having heard learned counsel for the parties and

considering the submission made, this Court finds that

Petitioner while continuing as an Assistant Teacher in

Kantuapani Primary School, she was put under

transfer to Butupali UGME School vide order dt.

10.05.2001 under Annexure-1. In terms of the said

order, Petitioner was relieved on 15.05.2001 under

Annexure-2 and submitted her joining in Butupali

UGME School on 16.05.2001 as found from Annexure-

3. Vide order dt.01.06.2001 under Annexure-4, though

// 14 //

D.I of School, Boudh cancelled order dt.10.05.2001 but

the said order was superceded with passing of another

order on 27.06.2001 under Annexure-5 inter alia with

the following observation:

2. "In supersession to the order No.2415 dt.1.6.2001 the teachers if not relieved are allowed to continue at their respective schools a per order No.1998 dt.10.05.2001 till finalization of rationalization of teachers.

5.1. As found from the said order, the then D.I of

school observed that those teachers who are continuing

in their place of transfer in terms of order

dt.10.05.2001, should be allowed to continue in the

said school. It is the view of this Court that on the face

of such order issued by the D.I. of School on

27.06.2001 under Annexure-5, Petitioner could not

have been relieved by the Headmaster of the School on

31.07.2003 under Annexure-6 and such relieve order is

not sustainable in the eye of law.

5.2. It is also found that challenging such illegal action

of the Headmaster in relieving the Petitioner on

31.07.2003, Petitioner though moved the then D.I of

School on 01.08.2003 under Annexure-7 and

// 15 //

subsequently the Tribunal by filing OA No.24(C ) of

2004, but Petitioner was never given a new posting nor

she was allowed to continue in Butupali UGME School.

5.3. The Tribunal vide order dt.21.12.2009 while

disposing OA 24(S ) of 2004, though directed Opp.

Parties therein to take a decision with regard to giving a

posting to the Petitioner, but no decision was taken in

terms of the said order. Instead a proceeding was

initiated against the Petitioner vide Memorandum

dt.31.12.2010 under Annexure-8 with the charges that

Petitioner w.e.f 01.08.2003 has remained on

unauthorized absence from her duty.

5.4. After such initiation of the proceeding, Petitioner

when again approached the Tribunal challenging the

proceeding as well as the relieve order on 31.07.2003

by filing OA 38(S ) of 2011, subsequently renumbered

as OA No.2136 of 2016, Petitioner was also never given

a fresh posting nor allowed to continue at Butupali

UGME School. Only after disposal of OA No.2136 of

2016 vide order dt.02.05.2018, Petitioner was given a

// 16 //

posting vide order dt.04.05.2019 in Butupali UGME

School under Annexure-13, where she joined on

06.05.2019 under Annexure-14.

5.5. After such joining of the Petitioner, the proceeding

was disposed of with the imposition of the punishment

vide order dt.31.10.2019 under Annexure-16. Vide the

said order, unauthorized absence of the Petitioner for

the period 01.08.2003 to 05.05.2019 was treated as

non-duty period and it was also held that Petitioner is

not entitled to get any financial or service benefit and

other consequential benefit also. The said order passed

under Annexure-16 has been upheld by the Appellate

Authority-O.P. No.2 vide order dt.20.11.2020 under

Annexure-19.

5.6. In view of the aforesaid analysis, it is the view of

this Court that, since after being illegally relieved from

the school by the Headmaster on 31.07.2003,

Petitioner was never given a posting nor allowed to

continue in Butupali UGME School, no fault lies with

// 17 //

the Petitioner for her not joining and continuing for the

period from 01.08.2003 to 5.5.2019.

5.7. Not only that on the face of the pendency of OA

No.24(S) of 2004 and OA 38(S) of 2011, subsequently

re-numbered as OA No.2136 of 2016, Petitioner was

never given a posting till such a posting order was

issued vide order dt.04.05.2019 under Annexure-13.

5.8. In view of the aforesaid analysis, it is the view of

this Court that no fault lies with the Petitioner for her

not discharging duty for the period from 01.08.2003 to

05.05.2019. Accordingly, this Court is inclined to

quash the order of punishment passed against the

Petitioner vide order dt.31.10.2019 under Annexure-

16, further confirmed vide order dt.20.11.2020 under

Annexure-19, While quashing both the orders, this

Court held that Petitioner is deemed to be continuing in

service for the period 01.08.2003 to 05.05.2009 and is

entitled to get all service and financial benefits as due

and admissible to her.

// 18 //

5.9. However, since for the period 01.08.2003 to

05.05.2019, Petitioner has not discharged any duty,

this Court held the Petitioner entitled to get the arrear

salary to the extent of 50%. This Court directs Opp.

Party No.2 to pass an order in terms of the direction

given here-in-above within a period of two (2) months

from the date of receipt of this order. All arrear

entitlements be also released in favour of the Petitioner

during the aforesaid time period.

5.10.The Writ Petition accordingly stands disposed of

with the aforesaid observation and direction.

(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 23rd July, 2025/Sangita

Reason: authentication of order Location: high court of orissa, cuttack Date: 30-Jul-2025 19:55:44