GAUTAM RANA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioner has filed this application challenging the Judgment dated 08.05.1992 passed by the Presiding Officer, State Education Tribunal, Bhubaneswar dismissing the appeal filed under Section 10A of the Orissa Education Act, 1969 read with Rule 22 of the Orissa Education (Recruitment & Conditions of Service of Teachers & Members of the Staff of Aided Educational Institutions) Rules, 1974 (in short the "Rules, 1974") on the ground that the same is barred by limitation as well as hit by principles of constructive res judicata. The short fact of the case is that Laramba High School, Laramba located in the district of Sambalpur is an Aided Educational Institution within the meaning of Section 3(b) of the Orissa Education Act. Following due procedure of selection, the Petitioner was selected for the post of Junior Clerk & issued with an appointment order pursuant to which he joined in the said post on 20.01.1976. In course of time, his appointment was approved by the Inspector of Schools & he was receiving the salary under the grant -in -aid scheme. But while he was continuing, there was some misunderstanding between himself & the Secretary regarding certain allegation against him to the extent of misappropriation of School funds in consequence thereof the Managing Committee forced him to resign & compelled him to submit the resignation on 26.07.1983. Before expiry of 30 days of the submission of resignation, the Managing Committee accepted the resignation submitted by the Petitioner on 26.7.1983. But it is stated that acceptance of such resignation has also been duly acknowledged by the Petitioner by registered post. It is stated that he has submitted an application on 01.08.1983 for withdrawal of his resignation but in spite of that the Secretary has illegally accepted the same in contravention of Rule 18 of the Rules, 1974 & he has also not been permitted to discharge his duty in the School though at no point of time the order of acceptance of resignation was communicated to him.

(2.) LEARNED State Education Tribunal while adjudicating Appeal No. 1 of 1990 in its Judgment dated 18.5.1992 in para. 9 has categorically held that acceptance of resignation & relieving the Appellant (Petitioner herein) before the statutory period of one month is contrary to Rule 18, of the Rules, & prior approval of the Inspector of Schools as contemplated under Section 10A of the Orissa Education Act, in short, "the Act" being illegal, the Appellant (Petitioner herein) is deemed to be continuing as Junior Clerk of the said school. While reaching at such a finding, on merits Learned Tribunal rejected the appeal on the ground that it is barred by limitation under Section 10A(3) of the Act & in paragraph 9 of the Judgment stated that the management accepted the resignation submitted by the Appellant (Petitioner herein) on 4.8.1983 & the same was communicated to him in writing, which he received on 9.8.1983. Therefore, the period of limitation would run from 9.8.1983 when the order of the so -called termination was received by the Appellant (Petitioner herein) & not from 2.9.1989, the date when he received the communication from the Inspector of Schools about the appointment & approval of Opp. Party No. 4. Therefore, the appeal is barred by time & on this score, it is liable to be dismissed in limine. Apart from the same considering the other aspect, the appeal is hit by the principle of constructive res judicata. It is stated that being aggrieved by the order of termination, the Appellant (Petitioner herein) preferred Appeal No. 25 of 1983, but the same was dismissed. In the circumstances, the appeal on the very same fact, on the very same cause of action between the same parties is hit by the principles or constructive res judicata. Therefore, both on the ground of limitation as well as on the ground of constructive res judicata, Learned Tribunal dismissed the appeal. Hence, this writ application.

(3.) THE Managing Committee, Opp. Party No. 3 has also filed counter affidavit reiterating the fact that the Petitioner has picked up cause of action from the date of approval of appointment of Opp. Party No. 4 against the post, which was lying vacant since 1983 after acceptance of resignation after waiting for a period of six years. The Petitioner preferred Appeal No. 25 of 1983, which was also withdrawn by him for the self -same cause of action between the self -same parties. The admission of the Petitioner & paying back the entire misappropriated amount without protest proves his guilt beyond all reasonable doubt & preponderance of all probabilities. It is further stated that the resignation submitted by the Petitioner having been accepted by Opp. Party No. 3 on 1.8.1983, the same was challenged before the Learned Tribunal in Appeal No. 25 of 1983, which was dismissed on the basis of the petition filed by the Petitioner not to proceed with the case. For the self -same cause of action again he agitated before the Learned Tribunal in Appeal No. 1 of 1990 seven years, later & therefore, the Learned Tribunal has rightly dismissed the appeal both on the ground of limitation & on the plea of constructive res judicata. The order of the Learned Tribunal dated 18.5.1992 is under challenge in this Writ Petition, which was filed in December, 1993, almost after 10 years from the date of cause of action, which is the subject matter of the earlier Appeal No. 25 of 1983, OJC No. 3010 of 1989 & Appeal No. 1 of 1990. Therefore, the Learned Tribunal has not committed any illegalities or irregularities in dismissing the appeal & this Court, therefore, should not interfere with the same.