DR. UPENDRA SAHOO Vs. STATE OF ODISHA

JUDGEMENT

(1.) By filing this writ petition, the petitioner has sought for setting aside the judgment dated 07.06.2012 passed by the Presiding Officer, State Education Tribunal, Bhubaneswar in Appeal Case No. 36 of 2010 as under Annexure-25 and the entire proceeding initiated against the petitioner including the orders dated 09.10.2005, 07.11.2005, 08.11.2005, letter dated 14.10.2005 under Annexures-3 to 6, order dated 11.08.2009 of the Director along with so called enquiry report dated 20.03.2009 under Annexure-17 and also the orders dated 02.06.2010, 11.08.2010 and 12.08.2010 vide Annexures-20, 22 and 23 respectively with a further prayer to direct the opposite parties to reinstate the petitioner in his former post and grant him all consequential service benefits including full back wages (salary components) from 09.10.2005.

(2.) Facts as borne from the writ petition are that the petitioner was appointed as a Lecturer in Oriya on being selected in due process of selection and by virtue of Resolution No. 10 dated 14.02.1998 of the Governing Body of the Netrananda Sahoo Women's College, Kakatpur, Purl followed by an appointment order in his favour vide Memo No. 31 dated 26.02.1988. He had subsequently obtained the Ph.D decree. In the process, his services were approved by the Director and he was paid grant-in-aid in shape of Block Grant with effect from 01.01.2004. Since the petitioner was the senior most lecturer of the said College, he was kept in-charge of Principal of the College and after the institution became an aided institution, being the senior most approved Lecturer, the petitioner was also approved as Principal-in-charge of the college by the Director following the Government Circular dated 19.07.1996 vide Director's order dated 24.06.1994. While the matter stood thus, the Government in its general notification dated 10.6.2004 nominated the Additional District Magistrate, of the district as. President of the Governing. Body for the aided Colleges functioning in the district headquarters and the Sub-Collector as the President of the Governing Body of all other aided Colleges of the State functioning in their respective jurisdiction. The petitioner submitted that such nomination of the President is always subject to the approval by the prescribed authority along with the other Members for whom he was nominated as the President. As per the petitioner, the Sub-collector can only function as the President of the Governing Body after entire Members including, the President are approved but not singularly. Learned counsel for the petitioner in this writ petition submitted that above proposition has been settled by this Court in the case of Sri Sathya Sai Seva Organization and another v. State of Orissa and others, 2008 (2) OLR 432. The petitioner further alleges that contrary to the settled position of law, the Sub-Collector, Puri with the help of local MLA, who was also a Cabinet Minister of the State Government, illegally styling and functioning as President of the Governing Body without any other members or without any approval of the statutory authority, in such capacity, as a matter of first step, he has illegally put the petitioner under suspension in his order no. 258 dated 09.10.2005 and framed charges against the petitioner by his office letter dated 14.10.2005 vide Annexures-4 to 6 without taking prior approval of the Director as required under Rule 21 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 in short hereinafter called as 'Rules 1974'. Being aggrieved by the said action of the Sub-Collector, the petitioner, moved the Education Tribunal, which case was ultimately dismissed as premature as well as on the ground of maintainability. The petitioner assailed the said order in this Court in W.P.(C) No. 13976 of 2005, which matter was dismissed by order dated 15.12.2005 by up-holding the order of the Tribunal. Failing to get any approval from the Director, Sub-Collector as President of the Governing Body of the College put the petitioner under suspension in suppression of the earlier one vide Order No. 299 dated 07.11.2005 for a further period of 30 days with effect from 08.11.2005, which order was approved by the Director on 08.11.2005. The petitioner alleged that since the order of suspension vide order dated 07.11.2005 was for a period of 30 days with effect from 08.11.2005, this order of suspension lost its force on expiry of 30 days on 07.12.2005. Consequently, the petitioner ought to have been reinstated in service with all service benefits with effect from 08.12.2005. While the matter stood thus, on a mischievous circumstance, designed, by the Sub-Collector, Puri, who was all through inimical towards the petitioner, entangled the petitioner, falsely in a criminal case and he was taken to custody. However, he was subsequently released on bail on the intervention of the High Court. The petitioner after returning from custody submitted a joining report to the Principal-in-Charge, who in turn refused accepting the petitioner's joining report on the plea of no instruction by the Sub-Collector to accept his joining report. Thereafter, the petitioner was constrained to send a registered letter to the Sub-Collector, Puri requesting him to allow him to join back in the College. In response to such letter, the Sub-collector in his letter no. 2442 dated 16.06.2006 intimated the petitioner that since he is continuing under the order of suspension, question of accepting the joining report does not arise. Being aggrieved by the said order of the Sub-collector, the petitioner filed appeal no 24 of 2006 in the State Education Tribunal. The appeal was dismissed holding as not maintainable on the ground that no appeal lies against the order of suspension. But by a subsequent development, the Tribunal directed the Governing Body to complete the disciplinary proceeding within a period of four months. The petitioner submitted that both the orders of suspension as well as initiation of disciplinary proceeding against the petitioner are without jurisdiction and authority, as not being passed by the Governing Body but by the Sub-Collector, Puri, functioning as the President of the Governing Body an action not on the basis of resolution being passed by the Governing Body. To substantiate his allegation, the petitioner submitted that the Governing Body is a body corporate consisting of 15 members and has to be reconstituted in accordance with law. It is contended by the petitioner that the Sub-Collector being nominated to function only as the President of the Governing Body and in absence of any approved Member of the Governing Body, he could not have taken any decision or functioned on behalf of Governing Body as single member in want of quorum approval. The petitioner further claimed that the position of the Sub-collector under the circumstances to function as President has been made clear by the decision rendered by this Court in the case of Sri Sathya Sai Organization and another v. State of Orissa and others, 2008 (2) OLR 432.

(3.) Being aggrieved by said action of the Sub-Collector, functioning as the President of the Governing Body, the petitioner filed W.P.(C) No. 12276 of 2007 in this Court which was disposed of by order dated 24.07.2007 directing the Director to conclude the disciplinary proceeding against the petitioner within a period of four months with further direction to pay subsistence allowances to the petitioner. Learned counsel for the petitioner, submits that under Rule-21 of 74 Rules if the Governing Body fails to take action against an employee, the Director can exercise power of disciplinary authority and conclude the proceeding and it is in this view the Director was rightly directed by the High Court to conclude the disciplinary proceeding. The petitioner further contended that Hon'ble High Court directing the Director to conclude the proceeding taking into account that there is no valid Governing body of the College at the relevant time.