Partly allowed

Kailash Chandra Das v. State and Ors.

Orissa HC10 Dec 2019FAO/397/2011

Case brief

AI extract

What is this about?

The Court quashed the State Education Tribunal's order refusing to grant GIA benefits to an employee whose service was restored under Section 10-A of the Orissa Education Act, 1969, remitting the matter for fresh adjudication.

What did the court decide?

Writ petition dismissed; FAO allowed; Tribunal quashed regarding GIA benefit; matter remitted for fresh adjudication of GIS Case.

Kailash Chandra Das Vs State and Ors. — Pension and Retirement Benefits | Orissa HC (2019)

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W.P.(C) No.28334 of 2011

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W.P.(C) No.28334 of 2011 And

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F.A.O. No. 397 of 2011

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10.12.2019 Heard Mr. G.N. Mishra, learned counsel for the petitioner and Mr. S.K. Das, learned counsel for opposite party no.3 in W.P.(C) No. 28334 of 2011; Mr. S.K. Das, learned counsel for the appellant in FAO No. 397 of 2011; and Mr. D.K. Pani, learned Addl. Standing Counsel for the State in both the cases.

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The Governing Body of Pathani Samanta College, Khandapada, in the district of Nayagarh, has filed the writ application challenging the order dated 14.07.2011 passed by the State Education Tribunal in Appeal Case No.48 of 2010, by which the tribunal has held that the management cannot escape the mandatory provision contained under Section 10-A of Orissa Education Act, 1969. Therefore, in absence of termination of service prescribed under Section 10-A of the Orissa Education Act, 1969 the opposite party no.3 is entitled to continue in service. So far as the claim made by the opposite party no.3 in GIS Case No.343 of 2008, the tribunal has held that there is no obligation upon the governing body to recommend the name of opposite party no.3 for approval of

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appointment and also the State Government as well as Director, Higher Education, Orissa to approve the same due to his unauthorized absence from duties in absence of termination of service in accordance with law.

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Mr. G.N. Mishra, learned counsel for the petitioner-governing body contended that since the opposite party no.3 remained unauthorized absent and for that purpose he faced termination, therefore, the order passed by the Tribunal holding that the provisions contained under Section 10-A of the Orissa Education Act, 1969 has not been followed, is contrary to the provisions of law.

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Mr. D.K. Pani, learned Addl. Standing Counsel for the State contended that Section 10-A of the Orissa Education Act, 1969 requires that termination should be made with approval of the competent authority. But in the present case, nothing has been placed on record to that extent.

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Mr. S.K. Das, learned counsel for opposite party no.3 emphatically submits that the opposite party no.3 was continuing in service, but he was prevented from discharging his duty, which amounts to termination of service, and in such event, Section 10-A of the Orissa Education Act, 1969 is to be followed. The same having not been followed, the

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order of termination cannot sustain in the eye of law. Therefore, the Presiding Officer, State Education Tribunal is well justified in holding that the provisions contained under Section 10-A of the Orissa Education Act, 1969 have not been complied with and thereby, the opposite party no.3 has to continue in service as before.

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Considering the contention raised by learned counsel for the parties and after going through the records, this Court finds that when opposite party no.3 was continuing in service in an aided educational institution, he was prevented from discharging his duties. Being aggrieved by such action, he preferred appeal before the State Education Tribunal stating that since he was prevented by the governing body from discharging his duty, that amounts to termination of service. After due adjudication, the Tribunal came to a conclusion that there was non-compliance of the mandatory provisions, as contained under Section 10-A of the Orissa Education Act, 1969 and held that if Section 10-A of the Act has not been compiled with, the so called termination of service of opposite party no.3 cannot sustain in the eye of law. Thereby, allowed the opposite party no.3 to continue in service. So far as the claim made by opposite party

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no.3 with regard to GIA is concerned, he had filed GIS Case No. 343 of 2008 before the tribunal claiming approval of his post and also for release of GIA in his favour. But the Tribunal has not given any finding to that extent, rather the Tribunal passed an order to the extent that there was no obligation upon the governing body to recommend the name of opposite party no.3 for approval of appointment and also the State Government as well as the Director Higher Education, Orissa due to his unauthorized absence from duty. It is contended that if the Tribunal has come to a finding that Section 10-A of the Act has not been complied with and allowed the opposite party no.3 to continue in service, thereby, the subsequent conclusion arrived at by the tribunal is an error apparent on the face of record. The same cannot sustain in the eye of law, as the opposite party no.3 has to be allowed to continue in the post by virtue of the order passed by the Tribunal. Therefore, necessary corollary would be, his service should be approved and he should be granted benefits in accordance with law in compliance of the provisions contained under the GIA Order, but the Tribunal has not passed any order to that extent.

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In such view of the matter, this Court, while confirming the order passed by the Tribunal with

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regard to continuance of opposite party no.3 in service, holds that, so far as the benefit admissible under GIA Order is concerned, the order so passed by the Tribunal to that extent cannot sustain in the eye of law. Accordingly, that part of the order dated 14.07.2011 passed by the State Education Tribunal in Appeal Case is hereby quashed and the matter is remitted back to the State Education Tribunal for fresh adjudication in accordance with law so far as GIA case is concerned.

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Accordingly, the writ petition filed by the governing body is dismissed and the FAO No.397 of 2011 preferred by the opposite party no.3 is allowed. The Tribunal is directed to adjudicate GIS Case No.343 of 2008 afresh and dispose of the same as expeditiously as possible.

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Issue urgent certified copy as per rules.

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…………….…………… (DR. B.R. SARANGI) JUDGE

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Ajaya

Kailash Chandra Das v. State and Ors.

Case brief

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Kailash Chandra Das v. State and Ors.

Case brief

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