Partly allowed

Jnanendra v. Sainik Schools Socie

Orissa HC10 Jul 2018OJC/8916/1994

Case brief

AI extract

What is this about?

This bench quashed an Appeal order because the decision was made by an authority other than the Chairman, Board of Governors, as required by the Service Rules. The appeal was remanded to the Chairman for a fresh hearing in New Delhi with the Society bearing all expenses.

What did the court decide?

Impugned Appeal order set aside; Appeal reheard by Chairman, Board of Governors in New Delhi; Society to bear travel and other expenses.

Jnanendra Vs Sainik Schools Socie — Pension and Retirement Benefits | Orissa HC (2018)

¶1

O.J.C. No.8916 of 1994

¶2

10.07.2018 Heard Shri N. Sarkar, learned counsel for the petitioner and Shri B. Moharana, learned counsel for the Sainik School’s Society.

¶3

This writ petition involves a challenge to the appellate authority’s order at Annexure-17 involving dismissal of the petitioner from service following a disciplinary proceeding.

¶4

Short question involving the appellate order here is that in view of the provisions at Clause 10.02, 10.19 & 10.20 of the Sainik School Bhubaneswar Rule Book, the Board of Governors since is the appellate authority and looking to the major penalty involved herein and particularly keeping in view the direction of this Court given in O.J.C. No.1064 of 1990, whether the order in appeal at Annexure-17 passed by the Director (Training) & Honorary Secretary, Sainik Schools Society is sustainable in the eye of law? There is no dispute that the petitioner was charge-sheeted on major misconduct. A disciplinary proceeding having been undertaken, the disciplinary authority imposed punishment of dismissal from the service involving the petitioner. The appellate authority on consideration of the appeal at the instance of the petitioner has modified the order of dismissal to that of penalty of removal of the petitioner from service. Looking to the background involved herein involving the petitioner, it appears, in the previous round of litigation, challenging the order passed by the appellate authority involving O.J.C. No.1064 of 1990 this Court in a Division Bench hearing the rival contentions of the parties gave the

¶5

¶6

following direction:-

¶7

“3. As the appellate order does not contain any reason, we set aside the same and call upon the appellate authority to consider afresh the appeal of the petitioner. While doing so, an opportunity of personal hearing shall be given to the petitioner. The hearing shall be held at Bhubaneswar and prior intimation about the date of hearing shall be given to the petitioner, at least 15 days ahead. The appellate order to be passed shall be a speaking one, a copy of which containing reasons shall be communicated to the petitioner to enable him to work out his remedy under the law if the appeal was to be dismissed.”

¶8

Reading of the aforesaid direction this Court finds, appeal at the instance of the petitioner not only required to be considered afresh but was also required to be considered after providing opportunity of personal hearing to the petitioner. It is after the above direction of this Court involving the O.J.C. No.1064 of 1990, the appeal proceeding was undertaken and disposed of by the impugned order at Annexure-17. Looking to the allegation at the instance of the petitioner though not seriously disputed by the learned counsel for the opposite parties, this Court looking to the service condition involving the petitioner and the contesting opposite parties, finds the following provision contained in Clause 10.02 of the service condition:-

¶9

“The member of staff so punished shall have the right to appeal against any of the penalties imposed on him. Appeals against penalties listed in sub-paragraphs (a)(i) to (a)(iv) and (b)(i) and (b)(ii) above shall be addressed to the Chairman of the Local Board of Administration, whereas those against penalties at (b)(iii) & (b)(iv) shall be addressed to the Chairman, Board of Governors. All appeals shall, however, be forwarded through proper channel i.e. the Principal and the Chairman, L.B.A. who will record their own views on such appeals.”

¶10

Looking to the provision indicated hereinabove and

¶11

¶12

looking to the involvement of major penalty, it becomes clear that the appeal lies to the Chairman, Board of Governors. Now the provision contained in Clause 10.19 reads as follows:-

¶13

“COMPLAINTS/PETITIONS/REPRESENTATIONS/ APPEALS

¶14

Every Sainik School employee has the right to submit complaints, petitions, representations and appeals to the superior authority viz., the Chairman, Local Board of Administration, or the Chairman Board of Governors, Sainik Schools Society.”

¶15

Admittedly, the appeal was made to the Chairman of Board of Governors. It is, at this stage of the matter, considering the direction of this Court in disposal of the previous writ petition, this Court finds, since the appeal lies to the Chairman, Board of Governors, the appeal was required to be disposed of by the Chairman, Board of Governors.

¶16

Provision at Clause 10.20 deals with procedure for disposal of the appeal, and it reads as follows:-

¶17

“Procedure for appeals/representations/complaints etc.

¶18

10.20 The following procedure will be followed for submitting, forwarding and disposing off the appeals, representations, complaints and petitions:-

¶19

(a) All appeals and representations addressed appropriately to the superior authority, must be handed over to the Principal, who will give his comments on it and forward it to the authority addressed, as expeditiously as possible. For Sainik Schools employees “Superior Authority” would mean Chairman, LBA of the concerned school or the Chairman, Board of Governors, Sainik Schools Society. (b) Appeals will be made through proper channel as under:-

¶20

i) Principal ii) Chairman, L.B.A. of the concerned school iii) Chairman Board of Governors, Sainik School Society, who will be the final appellate authority. Notes: In the case of penalties awarded by the Principal the following additional provisions will be

¶21

¶22

applicable:-

¶23

(a) An employee who considers himself aggrieved by an order passed against him, the findings of a Court of Inquiry, or a penalty imposed on him has the right to submit a petition against such order, findings or penalty. The channel of submission of petition will be the same as already mentioned above. Unless the redress asked for is granted by the Principal or by the Chairman of the LBA, the petition will be forwarded to the Chairman, Board of Governors with the comments/remarks of the Principal and the Chairman LBA.

¶24

(b) The Appellate authorities shall take the following action on petitions:-

¶25

i) With or without conditions, which the person punished accepts, pardon or remit the whole or any part of the punishment awarded,

¶26

ii)Mitigate the punishment awarded,

¶27

iii) Commute the said punishment to any punishment lower in the scale of punishments,

¶28

iv) Enhance the penalty imposed.”

¶29

From the provisions indicated hereinabove, this Court does not find any infirmity in preferring the appeal involved to the Chairman. It is, at this stage of the matter, taking into consideration the allegation of the learned counsel for the petitioner and on perusal of the appeal order at Annexure-17, this Court finds, though there is an indication that the order has been approved by the Board of Governors dated 21^st of November, 1994 but from the signing of the order and the contents in paragraph nos.9 & 10, it appears that the appeal has been decided by somebody else except obtaining an approval of the appellate authority in the matter of imposition of the punishment. Paragraph no.9 clearly discloses that approval of Chairman has been taken simply in the matter of punishment. Reading of the observations made in paragraph nos.9 & 10, it appears, the appeal has not been decided by the Chairman as required under the Service

¶30

¶31

Rules. For the clear provision contained in the service rules and the direction of this Court in the disposal of the previous writ petition, this Court finds, the appeal has not been decided by the authority desired to dispose under the Service Rules.

¶32

In the circumstances, this Court interfering in the appeal order at Annexure-17, sets aside the same, but as a fresh hearing of the appeal is required, the appellate authority i.e. the Chairman, Board of Governors is directed to rehear the appeal giving opportunity of hearing to the petitioner by making his sitting at New Delhi.

¶33

Considering the submission of the learned counsel for the petitioner that the petitioner is no more staying in Odisha and has become a resident of West Bengal, the Chairman, Board of Governors is directed to make arrangement for travel of the petitioner to New Delhi to attend the appeal proceeding in its sitting at New Delhi on the date fixed. All the expenses including journey, boarding, lodging and local travels of the petitioner shall be borne by the Sainik School’s Society.

¶34

The entire exercise shall be concluded within a period of four months from the date of communication of a certified copy of this order by the petitioner.

¶35

The writ petition succeeds but however, to the extent of an order of remand for re-disposal of the appeal.

¶36

(Biswanath Rath, J.)

¶37

…….…………………

¶38

Ayas

¶39

Jnanendra v. Sainik Schools Socie

Case brief

What is this about?

What did the court decide?

Jnanendra v. Sainik Schools Socie

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ramesh Prasad Rout Vs Kalakar Rout

Tara Dei Vs State

Suratha Nayak Vs Chairman,O.S.W.H.C.

Sushanta Vs G.M.Grid Corporation

Banwanilal Vs Vijaya Bank

Smt.Kanta Vs Bikash