Shri Udaya Kumar Jena vs Director Of Secondary Education, Odisha And Others

Biswanath Rath, J

This writ petition involves a challenge to the order of disengagement dated 04.12.2002 appearing at Annexure-6 brought by way of amendment to

the writ petition.

Sri Rath, learned Senior Counsel for the petitioner taking this Court to the reference of the Resolution of the Managing Committee dated 15.10.1994

submitted that the Resolution was the reason of termination of the petitioner on the earlier occasion. Taking this Court through the pleadings and the

developments through Annexure-1, Sri Rath contended that the order of termination of the Managing Committee was set aside by the Appellate

Authority and for the remittance of the matter to the Managing Committee for fresh consideration of the case involving the petitioner however,

providing opportunity of hearing to the petitioner, there was fresh submission of charge-sheet on the petitioner through Annexure-4. It is pursuant to

submission of charge-sheet and asking for explanation through the show-cause notice, vide Annexure-4, it appears petitioner has already submitted his

explanation vide Annexure-5 of the brief.

It is in this situation of the matter and once the termination order passed by the Managing Committee in the year 1994 was set aside, Sri Rath,

learned Senior Counsel for the petitioner taking this Court to the reason involving the impugned order at Annexure-6 submitted that there is no question

of again referring to the Resolution of the Managing Committee, which was not in existence as per law. Further Sri Rath also contended that there is

also a glaring defect in the impugned order, inasmuch as, when the order of termination was passed on 04.12.2002, there cannot be retrospective

termination of an employee, which is also contrary to law. It is in the circumstance, Sri Rath, learned Senior Counsel for the petitioner submitted that

this Court interfering in the impugned order ought to set aside the same and grant appropriate relief to the petitioner.

In spite of appearance of a set of counsels for opposite party no.3-Management, nobody is attending in the case. However, Sri Satpathy, learned

Standing Counsel for the School and Mass Education Department submitting his objection to the claim of the petitioner submitted that once there is an

order of termination, the same is appellable, but he however did not dispute to the proposition advanced by Sri Rath, learned Senior counsel for the

petitioner that there is wrong application of non-existing of the Managing Committee again there cannot be also retrospective termination involving an

employee. He, however, submitted that for the development taken place in the meantime that the vacancy caused for the termination of the petitioner,

there has been an appointment of a person, who has been paid all through. Sri Satpathy therefore contended that there may be further complication in

the event there is a positive direction in favour of the petitioner herein, keeping in view the fact that no stay order on the impugned order has been

granted while entertaining the writ petition.

Considering the rival contentions of the parties and on perusal of the objection of Sri Satpathy that the impugned order is appellable, this Court

observes that the writ petition was entertained in the year 2002 having the cause of action and kept pending in this Court for no fault of the petitioner

for last 18 years. It is in this view of the matter, this Court finds no worth directing the petitioner to go for appeal instead this Court proceeding for

deciding the matter on merit.

Now coming to the other aspect involved in the writ petition and looking to the contention raised by Sri Rath, learned Senior Counsel for the

petitioner that the Resolution of the Managing Committee terminating the petitioner dated 15.10.1994 since not being in existence for the order

involving Annexure-1 passed by the Appellate Authority, this Court on perusal of the order involving Appeal Case no.16 of 1999 through Annexure-1,

finds the concluding part of the Appellate Order appearing at Page-16 and 17 reads as follows :

“When admittedly the applicant was terminated from service, the Managing Committee has not produced any cogent evidence to have followed the principles of

natural justice by rendering opportunities to submit any show cause to the appellant. The termination of the appellant is, therefore, set aside. The Managing

Committee should afford proper opportunity to the appellant on the charges against him and to take a decision within 2 months from receipt of this order.

The appeal is allowed subject to aforesaid direction.â€​

A bare reading of the aforesaid direction of the Appellate Authority, this Court finds the submission of Sri Rath in claiming that the Resolution of the

Managing Committee dated 15.10.1994 is no more in existence is justified. It is keeping this in view and now examining order at Annexure-6, this

Court finds for the impugned order taking support of a non-existing resolution and declaration of such resolution being invalid by a competent Court of

law, there was no occasion on the part of the Managing Committee to again relying on such non-existing resolution in passing the impugned order.

Taking into account the allegation of Sri Rath that there cannot be again an order of termination with retrospective effect, this Court also finds force in

the said submission of Sri Rath.

It is in the above scenario, this Court finds the impugned order at Annexure-6 dated 04.12.2002 is not sustainable in the eye of law, which is hereby

interfered with and sets aside. For the interference in the order at Annexure-6, this Court in disposal of the writ petition in favour of the petitioner

directs the Managing Committee to work out the benefit in favour of the petitioner in accordance with law.

With the above direction, the writ petition thus succeeds. There shall however be no order as to cost.