Justice Sashikanta Mishra while holding an order of the management illegal, noted that while it is open to the management to take appropriate action against an erring employee, the same can only be done in accordance with the law and by strictly adhering to the principles of natural justice.
Brief Facts:
The petitioner has approached this court for the third time to challenge the order dated 19.12.2013, passed by the Director, Secondary Education, Odisha, Bhubaneswar in Appeal Case No. 17 of 2012 whereby the appeal filed by him was rejected.
The petitioner was appointed as Physical Education Teacher (PET) by the order of the Managing Committee of Salandi High School, Salandi in the district of Bolangir. He availed a study leave on 21.07.1990 and after the completion of the post, he re-joined the post. On 27.03.1993, the secretary of the managing committee directed him not to attend the school on certain allegations and for the reason that his post had not been approved. Then by the order dated 26.02.1994, the petitioner’s services were terminated. Then the petitioner approached the court, then he was permitted to be withdrawn with the liberty to approach the appellate authority which is the Director, Secondary Education. The petitioner approached the director, and his appeal was dismissed. In the meantime, opposite party no. 5 was appointed by the Managing Committee as PET in place of the petitioner. Then the petitioner again approached this court again and by the order dated 22.08.2012, the order of the director was quashed and he was directed to hear the appeal of the petitioner afresh by passing a reasoned order. Then the appeal was heard by the director again and was rejected by the impugned order. The petitioner has contended that the director did not consider the matter properly and that is why he had to approach the court again.
In the counter affidavit, it is stated that the petitioner had misbehaved with two lady teachers of the school in the urinal, and on their complaint an inquiry was conducted, and thereafter his services were terminated. It was also stated that the petitioner was granted an adequate chance to defend himself and therefore there is no reason for the court to interfere. Further, the opposite counsel has argued that as per the materials on record, the petitioner was given full opportunity of defence but he chose not to avail the same.
Observations of the Court:
The Hon’ble Court first noted the provisions of Odisha Education, 1969 to analyse the validity of the tenure of the Managing Committee. And it was noted that as per Section 7 of the Odisha Education Act, the validity of the managing committee was 5 years, this was amended and reduced to three years in 1991. Then the court held that there has been a default in the reconstruction of the managing committee within the stipulated period and the same cannot benefit the existing managing committee, therefore the Managing Committee constituted by an order dated 15.09.1990 could be treated as valid only till 17.12.1992 but not thereafter.
For the sanctity of the acts committed by such an invalid committee, the court referred to Governing Body of Bahanaga College vs. State of Odisha and another and accordingly held that the managing committee have lost its force and validity after 17.12.1992 and was incompetent to take any action against the petitioner and the petitioner deserves to succeed on such a ground alone.
The court after the above conclusion also considered the merits of the factual contentions raised by the petition. The court noted that merely on an allegation of indiscipline, an employee cannot be directed not to discharge his duties. Further, it was noted that there was no proof as to whether the show cause notices were actually served upon the petitioners and it was concluded that the inquiry so conducted had no sanction of the law. The court then concluded that while it is open to the management to take appropriate action against an erring employee, the same can only be done in accordance with the law and by strictly adhering to the principles of natural justice and hence, the impugned order of termination cannot be sustained in the eye of law.
Since the termination of service order was illegal it was set aside and in ordinary cases, reinstatement would have been ordered, but the petitioner in the current case attained the age of superannuation, so the court granted 50 percent back wages without any further benefits.
The Decision of the Court:
The writ application was disposed of and the opposite party no. 2 was directed to issue the necessary order to grant compensation to the petitioner equal to 5 percent of the back wages that he would have been entitled to, had he continued in service.
Case Title: Sankhali Behera v. State of Odisha
Coram: Justice Sashikanta Mishra
Case No.: W.P.(C). No. 2839 of 2014
Advocates for the Petitioners: M/s. D.K. Mohapatra, A.Sahoo, N. Nayak, Advocates.
Advocate for the Respondents: M/s. B.Mohanty, Standing Counsel for the School and Mass Education Department; K.K.Swain, Advocate (For O.P.No.5).
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